The year in review – A look at NSW planning and environment law in 2021

In brief – In this article, we briefly outline general themes we’ve seen in 2021 in proceedings before the Land and Environment Court (LEC), and on appeal, including developer contributions, compulsory land acquisition cases, criminal environmental proceedings, the growing trend of resident action groups bringing Class 4 judicial review applications, and the increase of joinder applications. We have also summarised our expectations for 2022.

General planning update

Scrutiny upon jurisdictional preconditions

Jurisdictional preconditions continue to be in the spotlight. All types of matters involve parties and the Court scrutinising whether jurisdictional preconditions have been met, and in turn, to ensure the Court’s power to determine the application is enlivened. Some examples of this focus on jurisdictional preconditions are below:

1. Planners North v Ballina Shire Council [2021] NSWLEC 120

Preston CJ’s judgment makes it clear that if a development does not meet the jurisdictional preconditions relevant to a development, a development appeal will be dismissed without consideration of the merits. This case concerned a development application for a manufactured home estate in West Ballina, which was partly located on coastal wetlands and littoral rainforest areas. The development was subject to both the State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) and the State Environmental Planning Policy No 36 – Manufactured Home Estates (Manufactured Homes SEPP). His Honour identified four preconditions to the grant of consent, of which he was not satisfied had been met.

Firstly, His Honour did not consider that, in the circumstances, a manufactured home estate was permissible. Secondly, His Honour was not satisfied that under clause 9(1) of the Manufactured Home Estates SEPP that the proposed development on the excluded land would not have an adverse effect on land having special ecological qualities, which the land within the Coastal Wetlands and Littoral Rainforests Area had. Thirdly, under clause 11(1) of the Coastal Management SEPP, His Honour was not satisfied that the proposed development would not significantly impact on the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or the quantity or quality of surface and ground water flows to and from the adjacent coastal wetland.

Finally, under section 7.16(2) of the Biodiversity Conservation Act 2016 (NSW) (BC Act), Preston CJ held that the proposed development would likely cause serious and irreversible impacts on the biodiversity values. The applicant needed to address these issues before the appeal could progress to the merits of the development. As the applicant had not done so, the appeal was dismissed.

In our experience, the Coastal Management SEPP and BC Act require careful attention where development triggers the application of the instrument and Act.

2. Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121

This judicial review matter concerned whether or not development consent given for additions and alterations to an apartment in Elizabeth Bay failed to address a jurisdictional fact required for that consent. The applicant argued that the nature of the additions and alterations sought in the development application needed consideration of whether or not the application fell within the scope of clause 4(I)(a)(ii) of State Environmental Planning Policy No 65 Design Quality of Residential Apartment Development (SEPP 65) as a matter of jurisdictional fact. The applicant further argued that since this did not happen, the development application was void.

Moore J did not engage with whether clause 4(1)(a)(ii) of SEPP 65 required the determination of a jurisdictional fact prior to the approval of a development application. This was despite the earlier judgment of Sheahan J in Barton Securities Limited v Warringah Council & Others [2009] NSWLEC 179, which found that to be the case. Instead, he made the assumption (for the purposes of this case only), that even if clause 4(1)(a)(ii) did involve that determination, SEPP 65 still did not apply in this case. This was because His Honour found that the development was not a substantial redevelopment or substantial refurbishment of an existing building, and therefore SEPP 65 did not apply at all.

Consequently, the matter was dismissed with costs.

3. White v Ballina Shire Council [2021] NSWLEC 1468

The importance of biodiversity jurisdictional preconditions in development appeals was also highlighted in this case against Ballina Shire Council.

This development appeal concerned the decommissioning of an existing dwelling and construction of a new two-storey dwelling and swimming pool, as well as upgrading the access of an existing but unauthorised internal access way. The Council’s contentions included that the applicant had not provided an adequate Biodiversity Development Assessment Report (BDAR). Specifically, that pursuant to section 7.16(2) of the BC Act, the BDAR did not adequately assess whether the development would have serious and irreversible impacts on the biodiversity values of the Site (particularly several species of vegetation and the Giant Barred Frog).

In his deliberation, Adams AC considered that section 7.16(2) of the BC Act raised a jurisdictional hurdle for the applicant, and that consent must be refused if the consent authority was of the opinion that the development was likely to have serious and irreversible impacts on biodiversity values. He found that the BDAR did not adequately address the biodiversity issues raised by the Council, and these findings contributed to his refusal to grant consent, resulting in the appeal being dismissed.

4. Awesome Corowa Pty Ltd v Federation Council [2021] NSWLEC 1633

This development appeal concerned a deemed refusal of a subdivision of two separate parcels of land into a total of 306 residential allotments, two drainage reserves, three public recreation reserves with associated roads, footpaths and infrastructure works. The Council’s contentions included that the applicant’s environmental impact assessment was insufficient with regard to significantly affected threatened species pursuant to Part 7 of the BC Act, particularly the Sloane’s Froglet and vegetation within the road reserve.

The development was subject to the Corowa Local Environmental Plan 2012 (CLEP), which included a ‘Terrestrial biodiversity’ clause (clause 7.4), that had the object of maintaining terrestrial biodiversity. Clause 7.4(3)(a) further instructed that before a consent authority determines a development application it must consider “any adverse impact on the condition, ecological value and significance of the fauna and flora on the land”. Although neither parcel of land was identified as ‘biodiversity’ on the Terrestrial Biodiversity Map under the CLEP, some of the necessary infrastructure for later stages of the subdivision would run to the south of the site and that area was within the mapped area.

Morris AC found that the applicant provided insufficient information regarding whether or not the development would have adverse impacts on the nearby vegetation or the Sloane’s Froglet. She was therefore not satisfied that clause 7.4 of the CLEP had been addressed. Morris AC further noted that because the Sloane’s Froglet was listed as vulnerable on the BC Act, a higher level of consideration and assessment of the impacts was required.

For this reason, amongst several others, the appeal was dismissed.

Trends in developer contributions

In addition to the statutory reforms currently proposed, a number of interesting contributions decisions were handed down in the last year.

In Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118, the Applicant challenged a condition of consent imposed by the Sydney Western City Planning Panel for the staged construction of a place of public worship requiring the payment of development contributions on a development involving a 500-seat place of worship, hall, meeting rooms, administration area, basketball court and ancillary café. The proceedings were brought in Class 4, and were an application for judicial review. The Applicant sought a refund of $598,326 paid to the Council in compliance with the condition.

The Land and Environment Court found that the condition was not invalid, and even if it were invalid, the Court did not have the power to order a refund of contributions already paid by the Church. This follows the NSW Court of Appeal’s findings in Ku-ring-gai Council v Buyozo [2021] NSWCA 117, where the Court denied the right to a refund of contributions under conditions of consent in the event of overpayment. Our August 2021 article, New South Wales Court of Appeal finds there is no power to determine a modification application seeking to reduce development contributions after payment, explores the Buyozo decision in more detail.

In Anglican Church Property, the Court held that the Planning Panel complied with the relevant requirements in section 7.11(2) of the EP&A Act when imposing the $589,833 contribution upon the Church. The Court concluded that the condition was therefore valid. The Court found at [133]-[165] that even if there was a finding that the condition was invalid, there was no power to order a refund.

The Court applied Beazley JA’s reasoning in Frevcourt Pty Ltd & Anor v Wingecarribee Shire Council (2005) 139 LGERA 140; [2005] NSWCA 107 and held that there was no power to order a refund as the contributions made by the Church had been pooled and wholly spent. The Court also found at [150]-[154] that it did not have jurisdiction under section 9.46 of the EPAA or any part of the LEC Act to order a refund.

The Court found at [155] that even if there was jurisdiction under the EP&A Act or the LEC Act to order a refund, it could only make orders against the entity that breached the Act. The Court found at [155] that if the condition was found to be invalid, the Planning Panel would have breached the Act by issuing that condition. As the Church sought a refund from the Council and not the Planning Panel, the Court would not be able to make such an order.

Finally, the Court found at [175] that even if the condition was invalid and the Court had the power to order a refund, it ought not exercise its discretion to make such an order due to procedural issues. The Court found that the Church’s delay in commencing proceedings and acquiescence in the imposition of the condition would be sufficient for it to not make such an order.

Compulsory acquisition of land round up

Genuine attempts to reach agreement

Elmasri v Transport for NSW [2021] NSWSC 929

In our 2019 article Recap of recent developments in NSW compulsory acquisition law, we wrote how questions remain as to what a “genuine attempt” means under section 10A, and how substantial the efforts need to be.

The Supreme Court of NSW addressed some of these questions in Elmasri. The plaintiff was ultimately unsuccessful in its case that section 10A(2) of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) was not satisfied prior to the issue of a Proposed Acquisition Notice (PAN).

The Court took a more liberal approach to the issue of “genuine steps” finding that:

• “The fact that [Transport for NSW’s valuer] might be either wrong or rigid or both does not mean that Transport was not making a genuine attempt to acquire the plaintiffs’ land by agreement” at [115].

• “some tardiness, some missteps and a lack of explanation for some aspects of [Transport for NSW’s] conduct does not necessarily mean a genuine attempt was not made” at [123].

• “[Transport for NSW’s] processes, timeliness and communications were not perfect but considered individually or collectively they did not demonstrate a lack of bona fides either. In the end result, the PAN was issued in circumstances where the parties were so far apart that the prospect of agreement was extremely remote” at [124].

The decision in Elmasri affirms a process whereby an offer (or offers) is put to affected landowners based on external valuation advice, and if that offer is rejected, limited negotiation (in the traditional sense of the word) occurs.

New way forward: Acquisition of leasehold interests and business claims

Eureka Operations Pty Ltd v Transport for New South Wales [2021] NSWLEC 41

The Court of Appeal decision in Roads and Maritime Services v United Petroleum [2019] NSWCA 41 changed the landscape for business claims involving the acquisition of a leasehold interest in land by significantly limiting the scope of loss of profits claims traditionally made under section 59(1)(f) of the Just Terms Act.

In Eureka, the Land and Environment Court awarded compensation for the acquisition of a leasehold interest on the basis of market value, whereby the quantum exceeded any “profit rent”. The critical fact in Eureka was that the land had an inherent profit-making feature for a particular use, and the exploitation of that feature is largely open to any occupier of the land (at [96]). The Court found at [103] that the appropriate valuation methodology was a before and after assessment of the value of the lease having regard to a discounted cash flow of the service station use, adopting the business’ EBITDA as the indication of the base earnings capacity.

The case provides an important post-United Petroleum way forward for businesses with leasehold interests extinguished by a compulsory acquisition, which will no doubt be tested again in 2022 with larger claims.

Uncertainty remains for loss of profits claims under the disturbance head of compensation

In Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2021] NSWLEC 90, the Court noted at [86] that the law on loss of profits claims is unsettled. However, Duggan J did not consider the question any further in the case given the finding that the Applicant did not have a relevant interest in the land.

Given the continuing uncertainty in this area, we are seeing future business loss claims follow the pathway outlined in Eureka (if the facts permit).

We also stress the importance of secure tenure for each affected entity. The strictness of the recent Court of Appeal cases of United Petroleum and Alexandra Landfill was adopted in Olde English Tiles. The Applicant was a company that occupied the land since 2002. The directors of the company were the registered proprietors of the acquired land. No formal agreement governed the company’s use of the acquired land.

The Court found that the Applicant’s right of occupation was a bare licence to occupy the land, and this did not constitute a “right, power, or privilege” over, or in connection with the Acquired Land as required by the Just Terms Act (which is a pre-condition to compensation entitlements).

The Court found at [85] that “[t]here is no room in the statutory language of the Just Terms Act to permit of the “fairness” that the Applicant contended, there is only a determination of whether the arrangement between the two legal identities can be characterised as an interest for the purposes of the Just Terms Act”.

First consideration of reinstatement under section 56(3) of the Just Terms Act since commencement

The Trustee for Whitcurt Unit Trust v Transport for NSW [2021] NSWLEC 82

Section 56(3) of the Just Terms Act only commenced operation in 2017 after the Russell and Pratt review. This section seeks to provide applicants with the option of seeking reinstatement compensation in addition to the established heads of compensation under the Act.

For a claim to be made under this section the following factual elements need to be made out:

• the land is used for a particular purpose: section 56(3)(a)

• there is no general market for land used for that purpose: section 56(3)(a), and

• the owner genuinely proposes to continue after the acquisition to use other land for that purpose: section 56(3)(b).

It was considered for the first time in The Trustee for Whitcurt Unit Trust v Transport for NSW [2021] NSWLEC 82 by Pain J. Although Pain J found that the applicant had no basis for a claim under section 56(3) (at [154]), the case still provided some insight into potential future reinstatement claims.

A substantive reason Pain J found no basis for a reinstatement claim was that the business the applicant was seeking compensation for was conducted on a monthly tenancy involving the use of assets that they were leasing. The applicant was also unsuccessful in its claim under section 59(1)(c), with the Court distinguishing the case from Hua v Hurstville City Council [2010] NSWLEC 61 and Konduru v Roads and Maritime Services; Konduru v Roads and Maritime Services [2017] NSWLEC 36 (two prior matters with successful relocation costs). The key factual differences were that in those cases, the business assets were owned by the applicants, and lengthy leases were in place. Her Honour found these issues to be relevant to the reinstatement claim under section 56(3) at [108].

Her Honour also noted that even if a claim for reinstatement was maintainable, section 56(3) requires a discount in the amount of compensation available in relation to the improvement in financial improvement an applicant may receive due to the reinstatement (at [157]).

Update on planning and environment criminal proceedings

The rule against duplicity

This year we have seen several more judgments on the operation of the rule against duplicity, which applies strictly in criminal proceedings. We were involved in Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd [2020] NSWLEC 52 and (No 2) [2021] NSWLEC 34, where the prosecutor’s summonses were held duplicitous twice by the Court.

The CCA’s judgment in Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263 has been considered in several cases this year, including the following three cases:

1. Grant Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Lidokew Pty Ltd [2021] NSWLEC 53

The summons in these proceedings related to meter offences and an allocation offence under the Water Management Act 2000 (NSW) (WM Act), and alleged that the defendant had taken more groundwater for cotton irrigation than reflected on the meters on the defendant’s property, and exceeding the defendant’s water allocation.

The meter offences were found not to be duplicitous. Importantly, the meter offences had been pleaded as alternative counts. The defendant, Lidokew, was not being exposed to conviction of both alleged offences “because no verdict can be returned on an alternative count unless and until there has been a determination of not guilty in respect of the primary count” (at [47]).

However, it is not as simple as saying that any ‘alternatives’ used in a summons are not duplicitous. The judgment also drew the distinction between “pleading alternative factual bases of liability, which is likely to infringe the rule against duplicity (see, for example, Riverina Australia Pty Ltd)” and “pleading alternative legal formulations of liability based on the same, or substantially the same, facts, which is not” (at [87]). (emphasis added)

2. Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37 and (No 2) [2021] NSWLEC 48

In these proceedings, the defendant was charged in separate summonses with the offence of polluting waters over a period of two months, and for breaching a condition of its Environment Protection Licence over the same period of time. The first judgment concluded that the charges were duplicitous, with each instance of discharging effluent into a tributary or spraying effluent onto the snow being capable of being a complete charge.

Following that judgment, the prosecutor sought that the Land and Environment Court certify the judgment on duplicity to the Court of Criminal Appeal (CCA) for determination pursuant to section 5AE of the Criminal Appeal Act 1912 (NSW). Importantly, the second judgment stated at [41]:

If the EPA is not successful on appeal then it will face the spectre of either laying an additional 77 separate charges (see judgment at [115]), or electing to proceed with just a single charge on a single day irrespective of the period of the offending. As was stated in Charlotte Pass, the conclusion reached by the Court that the summons was bad for duplicity was “finely balanced” (at [101]) and was premised upon an application of the underlying reasoning in Kiangatha.

3. Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWCCA 289

On 8 December, the CCA handed down its decision on the EPA’s question of law and found that the charge was not duplicitous, and that the second exception to that rule applied. That is, the acts of discharging effluent into the tributary during the charge period were sufficiently connected with each other to constitute a single criminal enterprise.

The application of the rule against duplicity is not always straightforward, particularly when considering the exceptions to this rule. Environmental offences often involve allegations of actions occurring over a period of time, and multiple times. However, the specific circumstances of each case, and the way in which the charge is pleaded must be closely analysed to understand whether the rule against duplicity has been contravened or not.

We anticipate parties will continue to grapple with this rule in criminal environmental proceedings in 2022.

Subpoenas

Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24

In December 2016, the Snowy Monaro Regional Council commenced proceedings under section 125(1) of the EP&A Act charging Tropic Asphalts Pty Ltd (Tropic) for breaches of conditions of development consent to operate a ‘temporary mobile asphalt batching plant’, subject to conditions. The Council alleged that Tropic had breached conditions of consent relating to plant production operation capacity and the number of trucks accessing the site.

The Prosecutor issued a subpoena to Tropic seeking production of ‘contracts between Tropic and RMS’, as well as other ‘delivery dockets’ relating to the operation of the site.

This judgment related to Tropic’s appeal of the Land and Environment Court’s refusal to set aside the subpoena.

Tropic contended that the subpoena did not have a legitimate forensic purpose, because the document sought had already been produced under a section 119J notice. It was therefore not “on the cards” that RMS would produce new material. The argument was that the Subpoena was not issued bona fide for obtaining relevant evidence, and were instead a fall back option for the Council if RMS documents responding to the section 119J notice were held to be inadmissible.

However, there was on the particular facts in this case no “reason why the Council should not seek to obtain in another, undoubtedly untainted, manner, the documents with which it will seek to prove its case against Tropic in the Land and Environment Court.”

Importantly, this was not a case where the Council only knew about the documents it sought under the subpoena because they had already been produced under the section 119J notice. The CCA recognised that if that situation had occurred, “Tropic might have had an argument that the documents sought should be excluded under s 138 of the Evidence Act from tender in the proceedings because they were improperly or illegally obtained, knowledge of their existence only having been acquired through issue of an invalid notice. Tropic could have argued that in such circumstances to seek production of the documents by the subpoena was an abuse of process.”

All of the above cases point to the importance of scrutinising the validity of the summons and the validity of any notices which underpin a summons for criminal proceedings, but also subpoenas issued once proceedings are instituted.

Vicarious liability and a retrial

Chia v Ku-ring-gai Council [2021] NSWCCA 189

This case involved an appeal against a conviction for the payment of a fine of $40,000 under section 125(1) of the EP&A Act for causing “injury to 74 trees the subject of the Ku-ring-gai Council Tree Preservation Order”. Chia appealed the conviction arguing, among other reasons, that the primary judge “erred in finding Mr Chia vicariously liable for the tree removal”. The CCA found that the trial Judge erred in finding Mr Chia vicariously liable for the offences. Specifically, Harrison J provided the following at [75]:

His Honour did not make a clear finding on the issue of whether Mr Chia directed the contractors to comply with all relevant regulations and legislation, including the 10/50 Code. That issue was central to his defence. Mr Chia’s success on this ground means that his conviction should be quashed and a new trial ordered.

The CCA allowed the appeal, quashing the conviction and ordering a new trial.

Admissibility of evidence including a conversation

Peter James Harris and Jane Maree Harris v WaterNSW [2021] NSWCCA 184

This judgment followed a finding by the Land and Environment Court that Peter and Jane Harris had breached a condition of an approval for irrigation of their cotton farm under the WM Act. The condition prohibited irrigation unless the discharge of the Darling River and the Barwon River exceeded stipulated flows per day at certain gauges.

The Land and Environment Court found each offence proved and convicted Peter and Jane Harris.

On appeal to the CCA, the Harrises argued that the trial judge erred in accepting evidence of a conversation between the first appellant and an officer of WaterNSW, and erred in admitting evidence of measurements of flow rate of the Darling River, which had been taken by officers of the respondent.

In relation to the conversation, the first appellant did not give evidence, but his position was that the conversation did not take place. The appellants submitted that there was reasonable doubt about whether the conversation had in fact taken place due to the lack of precision, the time that had elapsed and the absence of a record of the conversation in earlier affidavits of the officer of WaterNSW. Despite this, the CCA held that the primary Judge had not erred in accepting the conversation into evidence.

This follows on from a theme in our earlier articles relating to the admissibility of evidence in criminal proceedings (here and here), and the importance of carefully considering situations in which an authority is making a request to interview you, or asking questions.

In relation to the evidence on the measurements of flow rate of the rivers, the appellants contended that the recording of the data, and the observations of employees or officers of Water NSW, was opinion evidence. Both the primary judge and the CCA dismissed that ground. That evidence was held by Robson J to be “merely recording what they directly observed as objective facts”, as opposed to being opinion evidence, and therefore was not inadmissible. The CCA agreed, stating at [183] the way in which flow rates are recorded by field officers “does not involve the officer forming an opinion, forming a conclusion, or making a judgment by applying a process of reasoning from facts which have been observed.”

Resident action groups

Resident action groups formed through incorporated associations have again been prominent in Class 4 proceedings challenging various government decisions and other actions. There has been a mixed bag of success for such groups over the past year.

Some of the notable decisions this year include:

1. Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 5) [2021] NSWLEC 43 and Black Hill Residents Group Incorporated – INC1900196 v Marist Youth Care Limited (t/as Marist180) (No 6) [2021] NSWLEC 113

Declaration of interest: Colin Biggers & Paisley acted in this matter

The Black Hill Residents Group Incorporated (BHRG) commenced Class 4 civil enforcement proceedings challenging Marist Youth Care Limited’s (Marist) operation of an intensive therapeutic transitional care (ITTC) facility as a “transitional group home” as defined under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (ARH SEPP). The BHRG’s second challenge was that the transitional group home was not being carried out “by or on behalf of” a public authority so as to trigger Part 5 of the EP&A Act.

The Court found that, as Marist was operating an ITTC facility which was properly characterised as a “transitional group home” on behalf of a public authority (being the then Department of Family and Community Services), development consent was not required pursuant to clause 43(1)(a) of the ARH SEPP.

In settling costs, BHRG attempted to argue that the proceedings were caught by rule 4.2(1) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) where proceedings are “brought in the public interest”, the Court may deviate from the usual rule that costs follow the event, shielding parties from bearing the costs proceedings. Pain J rejected this argument, and held that BHRG’s concerns relating to “loss of amenity” for residents in the area surrounding the Marist facility did not necessarily constitute an issue which rises to the level of the public interest. Pain J held that the members of the BHRG had an ‘indirect pecuniary interest in the outcome of the proceedings’, and therefore the proceedings could not also be considered to be in service of the public interest.

2. North Parramatta Residents Action Group v Infrastructure NSW [2021] NSWLEC 60 and North Parramatta Residents’ Action Group Inc v Infrastructure New South Wales [2021] NSWCA 128

This case involved Class 4 judicial review proceedings brought by the North Parramatta Residents Action Group (NPRAG) against the validity of a development consent granted by the Minister for the construction of the Powerhouse Museum in Parramatta. In particular, the NPRAG sought review of the validity of the Environmental Impact Statement (EIS) prepared in support of the development proposal of which the Minister subsequently approved.

The Court found that the EIS was in fact validly constructed and met all requirements under the Environmental Planning and Assessment Regulation 2000 (NSW), and therefore the NPRAG’s review of the consent was dismissed.

On appeal in the NSW Court of Appeal, Bathurst CJ, Basten JA and Leeming JA arrived at the same decision as the primary judge, albeit by way of different reasoning, dismissing the appeal and confirming the validity of the consent. Unlike the BHRG decision above, however, NPRAG did not attempt to rely on the public interest provisions of the Land and Environment Court Rules and was ordered to pay the first respondent’s costs.

3. KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216

In September 2019, KEPCO Bylong Australia Pty Ltd (KEPCO) was refused development consent by the Independent Planning Commission (IPC) for the construction and operation of a coal mine in the Bylong Valley in Mudgee, NSW. KEPCO’s subsequent judicial review proceedings of that decision were also dismissed in the Land and Environment Court in December 2020.

The current case involved an appeal to the NSW Court of Appeal challenging both the procedural and substantive aspects of Pain J’s decision in the Land and Environment Court. The procedural grounds of appeal (grounds 1-4) related to the primary judge’s interpretation of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) (Mining SEPP). The substantive ground of appeal (ground 5) related to the IPC’s findings on the greenhouse gas emissions of the proposed coal mine.

The Court dismissed the appeal, holding that KEPCO had failed to satisfy all of the five grounds of appeal against Pain J’s decision on the IPC’s refusal to grant consent. The Court ordered that the appellant pay the costs of the first respondent, the Bylong Valley Protection Alliance Incorporated. While the Court referenced the IPC’s findings on the public interest when addressing the merits of the proposal, it did not address whether the proceedings were brought in the public interest for a determination of costs in the current matter.

Joinder applications

Another continuing theme in 2021 is third parties applying to be joined to Class 1 merit appeal proceedings under section 8.15(3) of the EP&A Act.

1. Bilotta v Inner West Council [2021] NSWLEC 129

This case involved a Class 1 appeal against a deemed and actual refusal by the Inner West Council for separate modification applications for a site in Birchgrove, NSW. Two of the applicant’s neighbours applied to be joined a party to the proceedings under section 8.15(2) of the EP&A Act and both applications were opposed by the applicant.

The Court found that the application met the requirements for joinder provided by the EP&A Act. Namely, that it was “in the interests of justice”, and would “raise issues” that, but for joinder, would be “unlikely to be sufficiently addressed”. Consequently, both neighbours were joined to the proceedings as second and third respondents, and were granted leave to prepare statements of facts and contentions raising contentions identified in their notices of motion. The town planner of the applicants for joinder was also granted leave to file and serve an individual expert report and to participate in any joint conferencing.

2. Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20

This case involved an appeal against a decision of the Hunter and Central Coast Regional Planning Panel to refuse a development application seeking consent for a 39-lot industrial subdivision and the creation of an environmental conservation lot in Black Hill, NSW.

While part of the decision related to whether objectors to the proposed development were entitled to be given notice of the appeal under section 8.12(1)(a) of the EP&A Act and whether they were entitled to be heard, the part of the judgment we have focused on involved one of the objector’s – Black Hill Industrial Pty Ltd (BHI) – application to be joined as a party to the proceedings.

The Court found that a failure to join BHI to the proceedings would deprive the Court of information in relation to matters consequential in determining the merits of the appeal. Joinder was therefore ordered and also because it was in the interests of justice and in the public interest.

3. AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWLEC 76

These proceedings involved a Class 1 appeal against the determination of an application to modify a consent granted to the applicant, AQC Dartbrook Management Pty Ltd (AQC), for a below-ground coal mine in the Hunter Valley, NSW. This case has generated some other attention this year which we have previously written articles on (in relation to the limits on the ability to amend a modification application: here, and in relation to subsequent cases, here).

In the first instance decision, the Land and Environment Court joined the Hunter Thoroughbred Breeders Association (HTBA) as a third party to the proceedings. Two events related to joinder applications then followed from this decision.

Firstly, AQC sought leave to appeal the Land and Environment Court’s decision which allowed HTBA to join proceedings. In AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112, the Court of Appeal granted leave and upheld AQC’s appeal, before setting aside the decision handed down by the Land and Environment Court in the first instance. The Court of Appeal found that the Land and Environment Court had made an error by allowing HTBA, a third party, to join the proceedings following a section 34 conciliation agreement and examined what considerations are necessary in assessing joinder applications.

In determining the appeal, the Court held that section 8.15(2) of the EP&A Act was unavailable to support HTBA’s joinder application, as AQC’s appeal against the IPC’s determination of the request to modify the development consent was instead an appeal under section 75W(5). The right of appeal under section 75W(5) had been continued by the transitional provisions and constituted a distinct right of appeal, and was not an appeal under Division 8.3 of the EP&A Act to invoke the appeal right under section 8.15(2).

The Court of Appeal also held that rule 6.24(1) of the UCPR was not an alternative source of power for the joinder application, as HTBA was not a “necessary” party as defined under the second limb of rule 6.24. Meagher and Leeming JJA found that HTBA did not have any legal interests which could be affected by the outcome of the litigation, and allowing its intervention in the proceedings would subvert the statutory scheme under section 34 of the LEC Act, through which the parties had already reached conciliated agreement.

Additionally, the Court noted the existence of other mechanisms for addressing jurisdictional issues, other than entitling an objector to become a party. Preston CJ (sitting on the Court of Appeal) built upon their Honours reasoning, and said that in order for a joinder party to be considered “necessary” under rule 6.24 of the UCPR, they must either satisfy one of two circumstances:

1. the determination of the matters in dispute will affect the party’s rights or interests in some material respect, or

2. the party can assist the Court in the determination of the matters in dispute.

In relation to the second circumstance, the Court of Appeal found that HTBA could have assisted the Court through other means rather than being joined as a party to the proceedings, and on this basis allowed AQC’s appeal.

Secondly, when the matter was remitted to the Land and Environment Court for determination, HTBA sought leave to be heard in the section 34 conciliation conference as an amicus curiae, or otherwise, under a “Double Bay Marina Order”. Section 38(2) of the LEC Act provides:

In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

HTBA argued that section 38(2) empowers the Court to take submissions from third parties through a Double Bay Marina Order.

The Court found that the provisions which direct the hearing of conciliation conferences under section 34 of the LEC Act do not prevent a third party from being joined to the proceedings under a Double Bay Marina Order, namely “on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits”: section 38(2). However, Duggan J held that the extent of participation available for parties joined under such an order will depend on the circumstances of each matter, to be determined on a case-by-case basis. Accordingly, Duggan J granted HTBA leave only to assist the proceedings by way of written submissions on ‘limited’ grounds.

What will 2022 bring?

The Land and Environment Court statistics indicate the last two years of the pandemic to have resulted in fewer registrations, but the Court now has more Commissioners sitting enabling earlier dates for conciliation conferences.

The trends identified in this article will likely continue into 2022 requiring parties to carefully evaluate these trends in the context of new litigation.