Land and Environment Court New South Wales Medium Neutral Citation: Crescent Newcastle Pty Ltd v Newcastle City Council [2020] NSWLEC 88 Hearing dates: 30 June 2020 Date of orders: 1 July 2020 Decision date: 01 July 2020 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [85] Catchwords: JOINDER – Registrar refuses application for joinder in Class 1 development proceedings – application for review of Registrar's decision – parties to Class 1 proceedings have reached agreement in s 34 conciliation conference before a Commissioner as to a decision in the proceedings that would be acceptable to the parties – the Commissioner considering whether it is a decision that the Court could have made in the proper exercise of its functions – applicant for joinder seeks to raise, inter alia, issues as to whether owners' consent is required from other parties – issue said to arise as a matter of public interest pursuant to s 8.15(2)(b)(ii) of the Environmental Planning and Assessment Act 1979 – applicant for joinder also seeks to raise merit issues pursuant to s 8.15(2)(a) of the Act – merit issues do not warrant joinder – owners' consent issue warrants joinder in the public interest – joinder ordered Legislation Cited: Coal Mine Subsidence Compensation Act 2017, s 22 Environmental Planning and Assessment Act 1979, s 8.15 Land and Environment Court Act 1979, s 34 Newcastle Local Environmental Plan 2012 Uniform Civil Procedure Rules 2005, rr 42.19 and 42.20 Cases Cited: Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802; (2008) 159 LGERA 361 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Category: Procedural and other rulings Parties: Crescent Newcastle Pty Ltd (Applicant) Newcastle City Council (Respondent) Friends of King Edward Park Inc (Applicant for Joinder) Representation: Counsel: Mr M Seymour, barrister (Applicant) Ms F Berglund, barrister (Respondent) Mr T Robertson SC (Applicant for Joinder) Solicitors: Allens (Applicant) Newcastle City Council (Respondent) Stringybark Legal (Applicant for Joinder) File Number(s): 291831 of 2019 Publication restriction: No TABLE OF CONTENTS Introduction The joinder application The conciliation conference The application to review the Registrar's decision The pre-hearing mention and the hearing The evidence The Registrar's decision The draft Statement of Facts and Contentions The proposed s 34 agreement Coal mine subsidence matters The condition restricting the consent to the site The submissions Introduction Submissions for the applicant for joinder The bases for joinder Delay in seeking review of the Registrar's decision The jurisdictional issue – whether owners' consent is required for the grouting Denial of the fruits of the conciliation process Consideration Introduction Jurisdictional issues Orders Extemporaneous Judgment Introduction 1. HIS HONOUR: Crescent Newcastle Pty Ltd (the Company) applied to Newcastle City Council (the Council) for consent for a development to comprise, as described in the Applicant for Joinder's draft Statement of Facts and Contentions, as being for three residential flat buildings, multi-dwelling housing, strata subdivision, demolition and associated site works. It is there said that a total of 172 dwellings are proposed. To the extent that there may be any inaccuracy in that description, it is sufficient for me to know that that which is proposed by the Company is a substantial residential development. The development for which consent was sought is proposed to be carried out at 11‑17 Mosbri Crescent, The Hill (the site) – The Hill being the name of an inner urban suburb of the City of Newcastle. The formal title descriptor of the site is Lot 1 in Deposited Plan 204077. 2. I note that this hearing has been conducted in circumstances made necessary as a consequence of the COVID‑19 pandemic and its impact on the Court system. The hearing has been conducted, and this decision is being delivered, using Microsoft Teams software, software which permits the parties and members of the public who have indicated that they wish to observe the process and this decision to be able to do so. I am grateful to the legal representatives of the parties for their cooperation in the conducting of the mention before me last week and the hearing before me yesterday. 3. As the matter is currently before Commissioner Dickson in a fashion which I will later describe, it has been necessary to address the issues that are pressed before me in an expeditious fashion. As a consequence, although these reasons for decision will be somewhat lengthy when transcribed, they necessarily lack a degree of the polish and refinement that would otherwise have arisen had it not been necessary for me to deliver this decision on the morning after the conclusion of the hearing. The joinder application 1. It is appropriate to provide context for what I am now required to address. 2. First, a Notice of Motion for Joinder, pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) was made by an organisation known as Friends of King Edward Park Incorporated. That application sought a number of matters in substance that are relevant for my consideration. The Notice of Motion sought, in proposed Order 3, that the Friends of King Edward Park be joined as a party to the proceedings, pursuant to s 815(2) of the EP&A Act. Second, an order was sought that the s 34 conference, set for 20 May 2020, be deferred. 3. The Application for Joinder was heard by the Registrar on 19 May, that is the day prior to the scheduled conciliation conference. As a consequence of that, it was necessary, as here arises, for the Registrar to give a decision expeditiously in circumstances where she was otherwise dealing with her responsibilities to run the daily list. The result of that is that the extemporaneous decision that was given by her early in the afternoon on 19 May 2020 was also more abbreviated than might ordinarily have been the course which would have arisen. 4. The Registrar declined to join the Friends of King Edward Park as the Second Respondent to the proceedings. The conciliation conference 1. As a consequence of that determination, the conciliation conference, held pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act) went ahead as scheduled on 20 May 2020. 2. It is appropriate at this time to note, as I will return to the transcript of the hearing before the Registrar later, that on the Application for Joinder, Mr Robertson SC represented the Friends of King Edward Park; Mr Pickles SC represented the Company and Ms Berglund, barrister, represented the Council. 3. On 20 May 2020, during the course of the conciliation conference, an agreement was reached between the Company and the Council as to the terms of a decision in the proceedings that would be acceptable to the parties, those being the words used in the chapeau of s 34(3) of the Court Act. 4. As a consequence of the parties reaching that agreement, the Commissioner then needed to address, relevantly, the requirements set out in s 34(3)(a) and (b) of the Court Act. In order to be able to discharge those functions, she was required to be satisfied that the decision that she would make would be one that the Court could have made in the proper exercise of its functions. If she concluded that that was the case, that being a jurisdictional point, she was then obliged to dispose of the proceedings in accordance with the decision agreed to between the parties, and to set out in writing the terms of that decision. The application to review the Registrar's decision 1. On 16 June 2020, a Notice of Motion to review the Registrar's decision declining to join the Friends of King Edward Park was filed. That application is made permissible as a consequence of r 49.20 of the Uniform Civil Procedure Rules 2005 (the UCPR), whereby an application for review may be instituted by the filing of such a Notice of Motion. The power to review the Registrar's decision is contained in r 49.19 of the UCPR. This rule is in the following terms: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. 1. The orders sought in the review motion were: 1 That pursuant to Rule 49.20 the Registrar's ex tempore decision of 19 May 2020 in Crescent Newcastle Pty Ltd v City of Newcastle 2019/00291831 to dismiss the Notice for Joinder to be set aside in full for the following reasons: i) The Registrar misconstrued the facts as being similar to those in Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802. ii) The Registrar erred in considering the court's duty to consider jurisdictional issues raised, such as owners' consent, Clauses 5.10 and 6.2(3) of the Newcastle Local Environment Plan, as equivalent to sufficiently addressing those issues, and further, did not consider the issue of there being no real contradictor. iii) The Registrar erred in considering mere advertence to heritage issues in the SOFAC as being equivalent to those issues being sufficiently addressed. iv) The Registrar erred in determining the requirement for concurrence of Subsidence Advisory NSW was equivalent to the issue being sufficiently addressed and therefore it did not warrant joinder. v) The registrar erred by not addressing the impacts of the development on the natural values of Arcadia Park or the Clause 4.6 application 2 That he Applicant on the motion be joined as a party to the proceedings under s 8.15(2) of the Environment Planning and Assessment Act 1979 and Rule 6.24 of the Uniform Civil Procedure Rules 2005 as there is no real contradictor. 3 That the current proceedings are stayed until the Motion for Joinder can be heard. 4 That the First Applicant and First Respondent provide the Applicant on the motion with all relevant material regarding the proposed development at 11 – 17 Mosbri Crescent, The Hill, Newcastle so that the Applicant on appeal can be full informed prior to the hearing of this motion and engage experts Dr Phillip Pells, Civil Engineer; Mr Stephen Davies, heritage consultant and former Chair of NSW Heritage Council; and Mr Stephen Brown, experienced town planner, to prepare full reports. The pre-hearing mention and the hearing 1. The matter was mentioned before me and was set down for hearing on 30 June 2020. At the mention before me prior to the hearing on 30 June, Friends of King Edward Park sought, in Order 3 of the orders sought in that Notice of Motion for review, that the current proceedings are stayed until the motion for joinder could be heard. I interpose that that was effectively until I had reviewed the decision of the Registrar, as the motion for joinder had been determined by the Registrar on 19 May 2020. 2. However, at the prehearing mention, I indicated that I had significant reservations as to what power, if any, I had to impose a stay on the process being undertaken by the Commissioner where she was seized, by virtue of the delegation of the matter to her by the Chief Judge of the Court, pursuant to s 36of the Court Act, to make such an order. 3. I sought from the parties their agreement that I communicate with Commissioner Dickson and request her to take no further steps to give effect to the proposed s 34 agreement until after I had heard and delivered my decision on this review application. The legal representatives of the parties then appearing before me agreed that that would be an appropriate course for me to follow. 4. I subsequently communicated with the Commissioner, and she indicated that she would forbear taking any further steps concerning implementation of the s 34 agreement until after I had delivered this decision 5. On 30 June 2020, the hearing proceeded pursuant to Microsoft Teams, with the Friends of King Edward Park again being represented by Mr Robertson of Senior Counsel. On this occasion, the Company was represented by Mr Seymour, barrister, and the Council was again represented by Ms Berglund. The evidence 1. It is appropriate that I record the evidence that was placed before me – evidence which primarily, but not exclusively, comprised evidence that was before the Registrar on 19 May. 2. The evidence provided on behalf of the Friends of King Edward Park comprised four affidavits of Dr Lewer, being affidavits that were (as to three of them) before the Registrar, and a further affidavit of Dr Lewer of 16 June 2020. A range of documents that had otherwise been exhibited to Dr Lewer's affidavits was also tendered. Those affidavits and documents comprised Exhibits A to G inclusive of the material in evidence. 3. Three further documents were tendered on behalf of Friends of King Edward Park; the first of them comprised folios 7 to 39 of the material appended to a further affidavit of Dr Lewer – an affidavit which was not otherwise admitted. They comprised folios of extracts of certificates from title searches of a number of allotments in the vicinity of the development site; those documents became Exhibit H. 4. Second, Exhibit J was the old systems title conveyance document of the early 1950s, conveying the site of the proposed development from its then owner, the Australian Agricultural Company, to a builder. It will be necessary to return to the terms of that document later. 5. Exhibit K was a title search document for the site itself. 6. The transcript of the hearing before the Registrar was also in evidence before me, and it will be necessary to refer to a number of the elements of that transcript later in these reasons. The Registrar's decision 1. It is appropriate at this point that I reiterate that that with which I am dealing is not an appeal against the decision made by the Registrar on 19 May 2020, but is a review of it, the process being somewhat different; the distinctions in which I approach the matter are matters to which I will later return. 2. The Registrar gave her decision extemporaneously, and although a copy of the transcript of the hearing before was available to the parties, the terms of her extemporaneous decision were not available. I was provided with a copy of it and I sought the Registrar's consent to release the unedited draft of her decision to the parties. She consented to that during the morning adjournment during the hearing and a copy of that document was provided to the parties by my Associate. The parties were given time to examine it during that morning adjournment and to make such submissions as they wished to later. 3. There are three passages to be noted from the Registrar's decision. 4. Although in transcript form, there is not the conventional line referencing, as occurs in the transcript of a hearing, so it is necessary that I read briefly from her decision. 5. First, she noted, on page 1, that it was conceded by Mr Pickles, concerning an issue of owner's consent pressed on behalf of the Friends of King Edward Park, that there was an issue engaged of that nature. However, she said, "The issue is, is that sufficient to allow joinder, and I have to exercise a discretion on that point? That is a jurisdictional issue that the Court is required to consider if it makes a s 34 agreement between the parties, or if the matter proceeds to hearing, and it grants a development consent, and I do not think that that issue alone is enough for me to consider joinder of the intervenors." 6. Second, with respect to the proposed General Terms of Approval provided by a New South Wales Government entity known as Subsidence Advisory, the Registrar noted that she did not think that those terms provided a proper basis for her to exercise her power to join. 7. Finally, the Registrar noted that she considered that the role that the objectors can play in the s 34 proceedings was that as set out by the Chief Judge of the Court in a case known as Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802; (2008) 159 LGERA 361 (Morrison Design). The draft Statement of Facts and Contentions 1. Friends of King Edward Park had placed a draft Statement of Facts and Contentions before the Registrar as the matters about which they would wish to address the Commissioner, had they been joined by her. Those five matters in that draft Statement of Facts and Contentions are in evidence before me. It is sufficient for these purposes merely to note the terms of the heading of four of them, they being: 1. Impact of the natural environment; 2. Clause 4.6 variation application regarding the height of buildings; 3. Heritage; and 4. Town planning. 1. The proposed fifth topic for contention is headed "Site suitability". It is, for the purposes of this decision, appropriate to reproduce it in its entirety; it was in the following terms: (5) The proposal fails to demonstrate it is suitable for the particular geography of the site. Particulars. The site is significantly undermined by old mine workings in excess of 100 years old; it has not been demonstrated that the site is able to be sufficiently remediated and stabilised to provide security in perpetuity for the occupants of the substantial residential tower buildings proposed. The proposed s 34 agreement 1. After it became known to the Friends of King Edward Park that it appeared that the parties had reached agreement as to the terms of a s 34 conciliation agreement, the Friends of King Edward Park sought release of that document; that release was not granted. 2. During the course of the hearing before me, I enquired of the parties whether it might be appropriate for me to have an understanding of the nature of the agreement and, after seeking instructions, I was advised that consent was given by both the Company and the Council to the terms of that document being in evidence. That consent was necessary as a consequence of the operation of subss (11)(b) and (12) of s 34 of the Court Act, the first of those being a provision that says: (11)(b) A document prepared as a result of a conciliation conference, or any copy of such a document, is not admissible as evidence in any proceedings before any Court or Tribunal. 1. That provision is subject to subs (12), which provides that subs (11) does not apply with respect to any evidence or document if the parties consent to admission of the evidence or document. As a consequence, the terms of the proposed conciliation agreement were tendered by Mr Seymour and became Exhibit 2 before me. Coal mine subsidence matters 1. It is not in contest that the site is in a mine subsidence district. As a consequence of that, the terms of the Coal Mine Subsidence Compensation Act 2017 (the Coal Mine Subsidence Act) are engaged; in particular, a role is provided for a body known as Subsidence Advisory, by virtue of the provisions of that legislation. 2. Section 22 of the Coal Mine Subsidence Act requires that where there is an application for approval to erect improvements or subdivide land, both of which are the subject of the Company's application, and that proposed development is within a mine subsidence district, an application for approval has to be made to the Chief Executive of Subsidence Advisory. Section 22(3) provides that the Chief Executive may grant an approval, either subject to conditions or unconditionally, relevantly to these proceedings. Section 22(9) deals with what is required if an approval is required under the EP&A Act. This provision is in the following terms: (22)(9) If the approval of any person under the Environmental Planning and Assessment Act 1979 is required for the erection or alteration of an improvement within a mine subsidence district or for the subdivision of any land in a mine subsidence district, the Chief Executive may refuse an application for approval of the erection, alteration or subdivision if the applicant for the approval has not produced to the Chief Executive the approval of that person to the erection, alteration or subdivision. 1. As a result of the processes mandated via the Coal Mine Subsidence Act, the Chief Executive, through an officer of Subsidence Advisory delegated for this purpose, provided General Terms of Approval to the Council for incorporation in the conditions of consent. Those conditions were set out in the proposed s 34 agreement document conditions at page 21. It is sufficient to note that they require the preparation of appropriate stabilisation plans involving the old mine workings to be submitted to Subsidence Advisory for the purpose of that body's approval. 2. It is, however, also the position that, as a result of the necessity for grouting (that is the introduction of cementitious materials into the mine voids of the old mine sites), that there will need to be work carried out drilling into and inserting such material into those mine voids at a number of locations, a matter to which I will later refer. 3. It is, however, convenient to note at this time that, for the purposes of the Company's development application, it is the Company's position that it is not seeking any consent for any works to be carried out outside the confines of the site, being works requiring approval pursuant to the EP&A Act. The condition restricting the consent to the site 1. This matter was dealt with in a subsequent exchange of e-mail correspondence between Commissioner Support at the Court and the legal representatives of the parties. That e-mail correspondence was also tendered, becoming Exhibit 3 before me. On 17 June 2020, an e-mail from Commissioner Support was sent to the legal representatives of the parties conveying a request from Commissioner Dickson seeking, relevantly, consent of the parties to include the following additional condition in the agreed conditions of consent: 1(a) No development outside Lot 1, DP 204077, 11 - 17 Mosbri Crescent, The Hill, NSW 2300 is approved by this consent. 1. On 19 June 2020, a reply was received on behalf of the parties, agreeing to an amended version of proposed Condition 1(a), the amended version to be in the following terms: 1(a) No development outside Lot 1, DP 204077, 11 17 Mosbri Crescent, The Hill, NSW 2300, other than the stormwater connection works in Mosbri Crescent Park, and tree removal within the road reserves of Kitchener Parade and Mosbri Crescent, is approved by this consent. 1. It is in the context of that condition, to be attached to and forming part of the proposed s 34 agreement, that I need to turn to consider the application for review of the Registrar's decision. First, it is to be noted that guidance to be given to me by the Court or Appeal as to how I should approach this matter is to be found in the decision of Tomko v Palasty (No 2) ) [2007] NSWCA 369; (2007) 71 NSWLR 61. 2. In the course of that decision, in which the leading judgment was written by Basten JA, the presiding judge, Hodgson JA, set out at [7] to [10] his views as to how the discretion to be exercised by me in this review process is to be carried out. His Honour said: 7 In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so. 8 In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v. The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. 9 In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v. The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing. 10 In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In Re the Will of Gilbert (1946) 46 SR(NSW) 318 at 323. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence. 1. It is to be observed that Ipp JA agreed with those remarks. 2. Basten JA set out at [52] of the decision a series of matters that he considered to constitute the proper approach to be taken to an application to review a decision of the Registrar; Ipp JA also indicated his agreement with those views. Basten JA said: 52 It follows that the proper approach to an application in relation to a decision of the Registrar is as follows: (1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19; (2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker; (3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King , do not in terms apply to a review; (4) nevertheless, similar policy considerations may arise in relation to a review, including: (a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement; (b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and (c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review. 1. It is in that context that I undertake this review. It is important to note that in doing so, to some extent this review process may be considered to be a de novo hearing. 2. Mr Robertson submitted that because I was finally determining his client's rights, or at least the proposed absence of such rights, it was clear that there was a broader discretion, as I understood his submission, that I might seek to intervene with the decision of the Registrar. At this point, I need make no further comment on that matter, however I indicate that I am satisfied that that decision of the Court of Appeal provides the appropriate guidance for how I should continue to hear and determine this matter. The submissions Introduction 1. I now turn to the matters that require my substantive consideration. The application that was before the Registrar was one made pursuant to s 8.15 of the EP&A Act where, in subs (2), it is set out the circumstances under which an Application for Joinder may be made, and what is to be considered in assessing whether or not such joinder should be ordered. The terms of that provision are: 8.15 Miscellaneous provisions relating to appeals under this Division (1) … (2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion— (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that— (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal. Submissions for the applicant for joinder The bases for joinder 1. Mr Robertson submitted to me that matters that were set out in the draft Statement of Facts and Contentions before the Registrar from Friends of King Edward Park provided a proper basis for joinder, and he expanded on those bases in an additional fashion with respect to jurisdictional issues, to which I will need to return. 2. However, the foundation of his submissions, as I understood them, was that: 1. the heritage and other matters in proposed Contentions 1 to 4 of the draft Statement of Facts and Contentions warranted Friends of King Edward Park being joined pursuant to s 8.15(2)(a), on the basis that those issues were not likely to be sufficiently addressed if the organisation was not joined as a party; and 2. with respect to what I might describe as the owners' consent and jurisdictional issues, matters arising out of proposed Contention 5, but certainly broader than proposed Contention 5, also warranted joinder pursuant to s 8.15(2)(b)(ii) that it was in the public interest that Friends of King Edward Park be joined as a party to the proceedings. Delay in seeking review of the Registrar's decision 1. Before turning to the matters of detail that I need to contemplate in the context of those submissions, I should first deal with the objection raised by Mr Seymour, on behalf of the Company, concerning what he said was an insufficient explanation of the delay after the Registrar's decision in seeking to have her decision reviewed. 2. In response to this, Mr Robertson explained that Friends of King Edward Park had made a request to be permitted to advance oral submissions to the Commissioner, and that that request, made subsequent to the Registrar's decision, was not acceded to; that the organisation had provided correspondence which had outlined the nature of the matters that they wished to raise, but had not set out the detail of those submissions; and that this was an appropriate explanation for the necessity to consider and seek to address the matters that were proposed to be put before the Commissioner. 3. He relied, for these purposes, on paragraphs (8) and (16) of the affidavit of Dr Lewer of 16 June 2020, which was Exhibit F before me. The first of those paragraphs, paragraph (8), is in the following terms: (8) Notwithstanding the lack of written reasons, the Registrar appeared to determine the application in accordance with Morris Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802, and concluded that the applicant on the motion could be represented adequately through the s 34 process. 1. The second paragraph, paragraph (16), was in the following terms: (16) In contrast to Morrison, the nature of the without prejudice discussions between the proponent and the council have left the applicant on appeal uninformed regarding the status of the development. Consequently, our written submissions have been based on information that is out of date, and we are unable to verbally address the Court during the s 34 process. 1. I accept on balance that it is not appropriate to decline to entertain this review application on the basis of lateness, and the submission from Mr Seymour is rejected on that point. The jurisdictional issue – whether owners' consent is required for the grouting 1. I now turn to the hearing before me, and the matters raised. It is fair to say that much of the time was devoted to jurisdictional issues, particularly concerning the nature and location of grouting of the historical mine shafts in two seams that are in the vicinity. The grouting arises as a necessity of the requirements of Subsidence Advisory to ensure the integrity of the proposed development. 2. At folio 44 of Exhibit E, being the documents exhibited to the affidavit of Dr Lewer of 19 May 202 (No 2), was a plan prepared by Coffey Partners setting out the location, both within the site and on surrounding properties, where Coffey Partners had reached the conclusion that it would be necessary for bore holes to be drilled for the purposes of inserting cementitious grouting into the voids in the old mine workings. A copy of that document is reproduced as Annexure A. 3. The question of the grouting and stability of the site was addressed by Mr Robertson in his submissions before the Registrar at page 7, between lines 8 and 40, with a reference at the conclusion of that passage to a letter from a geotechnical engineer at Coffey Partners, Mr Simon Baker. The letter was Annexure D to the affidavit of Ms Melinda Thomas, being an affidavit which had been tendered in these proceedings on behalf of the Company, becoming Exhibit 1. I will need to turn to that document later. The extract from the transcript was in the following terms: Now, the second matter – and this is related to the first that we propose to raise – concerns the instability of the site. The site is undermined, Commissioner (as said), and if you turn to p 107, there is a short report by Dr Pells, one of Australia's leading geotechnical engineers whose publications, I should add, are relied upon by the applicant's geotechnical engineer in the annexures to the EIS. On p 108, under "Subsidence issues", Dr Pells refers to Coffey, which is the applicant's advisor; he says, "Coffey provides high…about 100 metres." Now, on p 108, you will see the diagram and there are a number of what appear to be subdivisions, but in fact, they are, on the diagram, the old workings of the coal mine, the borehole seam. You won't find any similar document for the yard seam, Commissioner, because there is none. The yard seam, which was on yard high and it covered most of the north-eastern portion of Newcastle – outcrops at Newcastle Beach – the yard seam was so old that there were no reliable maps, and so you have to boreholes to even find it, and then you have to do CCTV analysis – which is what Coffey did – to see whether it has collapsed or is still in a good condition. Now, the relevant of this is, if you look at the plan on p 108, you can see the development proposal. It's in that black and it's got that semi-circular area which is of Mosbri Crescent, and then on the other side is Arcadia Park, and the rings shown on this diagram are the places where the borehole seam, right – the yard seam also has to have treatment, but the borehole seam will be grouted, and the grouting of the borehole seam must take place before construction of the development. That is a requirement of the GTAs by the Subsidence Advisory authority and is proposed in the DA. If you go back to Dr Pells report, the second paragraph, he says, "Report concludes correctly…figure 1 is extracted." Now, Commissioner, we received after 4pm yesterday an affidavit of Melissa Thomas, which you will have, dated 18 May. Annexed to Ms Thomas' affidavit is a very short letter from the Coffey Partners' analyst, Mr Baker, a geotechnical engineer. It's annexure D to the affidavit of Melissa Thomas. Do you have it there? 1. In response to the submissions made before the Registrar, Mr Pickles addressed the question of grouting, relevantly, at two locations. First, on page 16 of the transcript, between lines 10 and 17, he indicated that approval for the grouting was not sought in this development application, and that the locations of drilling and grouting would be the subject of a subsequent plan. He said: In terms of the grouting of which much was made, the locations of grouting – approval for those is not sought in this actual development application. The way that it works is that there'll be a mine grouting plan that's approved by the Subsidence Authority, and I understand that that would be a condition of consent, and the locations of drilling and grouting and so on would actually be the subject of that subsequent plan. So actual works and location of works are, I'm instructed, not something that's been approved by this development consent so that doesn't arise. 1. I note that he carefully used the word "plan" rather than "development consent", an approach consistent with the position advanced to be on behalf of the Company in these proceedings. 2. On page 20 of the transcript before the Registrar, Mr Pickles addressed the question of whether owner's consent, for the purposes of the EP&A Act, needed to be obtained and demonstrated to the Commissioner for the purposes of her granting consent. When it comes to other owners than the Crown owning the park or indeed the council land, the road, the unmade road or indeed Kitchener Parade or any other roads which are in the custody of the council, the simple fact of the matter is that the title to the private property are limited in depth. The applicant has investigated this matter carefully. Those titles are limited in depth and therefore the grouting works which are to take place take place at a depth which is below the title to that land and take place on land therefore which is owned again by the Crown over which the Mine Subsidence Authority can grant the requisite consent. 1. However, it is appropriate to note that Mr Pickles expressly claimed, in that element of his submissions, that the titles to the private property in the vicinity were limited in depth, and that therefore the grouting works did not require consent of the owners of that land. 2. I note, at this point, that Exhibits H, J and K to which I have earlier referred, provide a basis for understanding why that submission is not factually accurate, a matter which was addressed by Mr Seymour, and to which he took a different approach – a matter to which I will later return. However, Exhibits H and K, which are Torrens Title documents, demonstrate that the terms of the limitation, contained in the old system conveyance in Exhibit J had the effect of reserving from the transfer in 1952 of the minerals and mine, including mine shafts. The subsequent adoption in the Torrens Title provisions of the various certificates, notes that they are excluded only to that extent by virtue of the Exhibit J document, rather than any blanket limitation on those titles as a matter of depth. 3. The question of grouting, and how it is to be effected in light of the document to be reproduced as Annexure A to these decisions, was subsequently addressed further in the document at Annexure D to Ms Thomas' affidavit, cited by Mr Pickles before the Registrar. That was the letter from Mr Baker, a senior geotechnical engineer at Coffey Partners, dated 18 May 2020. Two elements of it are relevant for present purposes. The first is contained in the first substantive paragraph, which notes that Mr Baker was writing in response to a report of Dr Pells – I interpose that Dr Pells is a geotechnical engineer advising Friends of King Edward Park – and Mr Baker acknowledges reading a draft report from Dr Pells dated 8 May 2020. 4. Towards the bottom of the first page of the letter, Mr Baker substantively makes the following points in response to Dr Pells' report: All grouting bore holes for mine remediation will originate from within the subject development site and surface, and progress at an angle outwards (eg 25 degrees from vertical) to achieve target specified locations at mine depth of 92 metres to 100 metres below ground level for bore hold seam, or 42 metres to 46 metres yard seam. 1. He then notes: There will be no surface works, or other access matters, arising in the adjacent Arcadia Park, a matter the impact on which had been pressed as one of the earlier merit matters proposed to be agitated by the Friends of King Edward Park, utilising the vehicle of their draft Statement of Facts and Contentions. 1. However, for the purposes of what I am now dealing with, it is sufficient to note that, in lieu of the very many vertical bore hole points proposed as shown in Annexure A, it is now proposed that there will be no surface bore hole drilling outside the Company's site and no consent, pursuant to the EP&A Act, the Company says, will be required outside the boundaries of the site. 2. It is to be observed that, apart from the reservation arising from Exhibit J, a reservation which is shown as also applying to the site as a consequence of Exhibit K, which is the relevant title extract for the Company's site, the works downward from the site, of which there are four noted on Annexure A, are to be conducted within the site – given that the legal theory is that the site is owned by the Company, with the limited exception of the exclusion arising from Exhibit J from the, relevantly, surface of the land to the centre of the earth. 3. With respect to Mr Baker's letter, Mr Robertson made submissions at page 8 of the transcript before the Registrar, and submitted that, from line 47 to 50: We haven't done the relevant property searches, but I am sure the titles will show ownership, of course downwards as well as upwards, for all land and development, as it is defined in s 1.4 of the Act, is proposed and is indeed necessary. It is a precondition that is a submission with respect to owners' consent. 1. The contrary position put by Mr Seymour warrants some exploration. It is a position supported not only by the Company but by the Council. The first is that the development consent sought by the Company is confined to development requiring approval to be carried out on the Company's site. 2. Second, development consent is not required for "environmental protection works", which, in the Company's submission, is the nature of the drilling and grouting proposed to be undertaken, because "environmental protection works" are works permitted to be carried out without consent in the zones that comprise the site and its surrounding area. The definition of "environmental protection works" in the Dictionary to the Newcastle Local Environmental Plan 2012 (the NLEP) is in the following terms: Environmental protection works means works associated with the rehabilitation of land towards its natural state, or any work to protect land from environmental degradation, and includes bush general works, wetland protection works, erosion protection works, dune restoration works, and the like, but does not include coastal protection works. 1. Second, Mr Seymour put to me that the General Terms of Approval incorporated in the proposed conditions of consent arise as a consequence of s 2 of the Coal Mine Subsidence Compensation Act, and not from the provisions of the EP&A Act. 2. Third, that which is proposed to be undertaken beyond the boundaries of the site, because they are environmental protection works, do not require development consent, but may involve the requirement of the Company to seek landowners' consent for the carrying out of those works under general property law. Such consent is not required as a prerequisite to granting consent under the EP&A Act. It is to be observed that that proposition is not accepted as correct by Mr Robertson and constitutes, effectively, the single basic legal jurisdictional area in dispute between the parties. 3. The Council, through Ms Berglund, indicated the Council's support for the propositions advanced by Mr Seymour. Denial of the fruits of the conciliation process 1. Mr Seymour also proposed that if I was to permit joinder at this stage, his client would be denied the benefit of a development consent in circumstances where none of the merit issues were in dispute between the parties, and the sole matter that was in contention of any substance was the jurisdictional issues pressed by Mr Robertson concerning the necessity for approval of the offsite drilling and grouting works pursuant to the EP&A Act, and the resultant necessity for owners' consent to be granted, for EP&A Act purposes, to those works. Consideration Introduction 1. I have earlier referred to the provisions of s 34(3) of the Court Act, where it is clear that the Commissioner must be satisfied that she has the power to give effect to the agreement reached between the parties. 2. I have carefully considered all of the matters that have been pressed by Mr Robertson on behalf of Friends of King Edward Park. I should observe that this decision is not to be taken as a reflection on the Registrar's decision, nor as any form of appeal against it. I have earlier noted the time pressure that was on the Registrar to deal with the matter. 3. First, I indicate that I do not accept that, in a Morrison Design sense, the matters set out in proposed Contentions 1 to 4, proposed by Friends of King Edward Park, would provide any proper basis for granting joinder on the basis of this review of the Registrar's refusal. 4. I should also indicate that this decision does not constitute any adjudication of the merits of any of those matters, or any of the jurisdictional matters that were raised by Mr Robertson. I am merely satisfied, in a Morrison Design sense, that it is not appropriate to join Friends of King Edward Park as a consequence of the merit matters that they have pressed, that is Contentions 1 to 4. Jurisdictional issues 1. However, I am satisfied that there are at least potentially serious jurisdictional issues that require to be determined, a determination process that I am not to undertake in these proceedings. 2. I am satisfied that those potential jurisdictional issues are sufficient to warrant joinder of the Friends of King Edward Park to have them addressed in the public interest in these proceedings. 3. Again, I should repeat, I am not to be taken as to be expressing any view on the merits of those jurisdictional issues, merely that in the context of this hearing I am satisfied that there is a sufficiently significant issue in the public interest, and indeed an issue of comparative novelty, that requires it to be addressed. However, I also note that when joined, Friends of King Edward Park are joined as parties for all purposes. 4. I have earlier noted what I consider to be my limited procedural powers in proceedings such as these, given that the matter is one with which Commissioner Dickson is currently seized. I am satisfied that I can merely make limited procedural orders, as I indicated to the parties during the course of the hearing. Orders 1. It follows from my conclusion that I make the following orders: 1. Friends of King Edward Park is joined to the proceedings as the Second Respondent; 2. Friends of King Edward Park is to file its Statement of Facts and Contentions, proposed to be relied upon by it, by the close of business on 3 July 2020; 3. The parties are to approach the Registrar, by Online Court, by the close of business on 3 July 2020 for a date for the matter to be relisted before Commissioner Dickson; 4. Costs are reserved; and 5. The exhibits are returned. ********** Annexure A (254802, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2020