Land and Environment Court of New South Wales CITATION : Maxwell and anor v Warringah Council and anor (No 2) [2004] NSWLEC 522 revised - 19/11/2004 FIRST APPLICANT S Maxwell SECOND APPLICANT M Corbett PARTIES : FIRST RESPONDENT Warringah Council SECOND RESPONDENT Duffys Forest Residents Association FILE NUMBER(S) : 11195 of 2003 CORAM: Moore C Costs - Development Application :- KEY ISSUES: Late amendment to application Substantial scope of amendment . LEGISLATION CITED: Weal v Bathurst City Council [2000] 111 LGERA 181; CASES CITED: Mison v Randwick City Council (1991) 23 NSWLR 734; Commonwealth v Verwayan [1990] 170 CLR 394 ; . DATES OF HEARING: 16 September 2004 DATE OF JUDGMENT: 09/17/2004 APPLICANTS Mr J Cole, solicitor Abbott Tout FIRST RESPONDENT Mr K Webber, solicitor Wilshire Webb LEGAL REPRESENTATIVES: SECOND RESPONDENT Ms S Duggan, barrister INSTRUCTED BY Mr R Smallwood Smallwoods Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 17 September 2004 03/11195 Maxwell and anor v Warringah Council and anor JUDGMENT 1 COMMISSIONER: These proceedings are the continuation of an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal (and subsequent actual refusal dated 6 February 2004) of an application to Warringah Council ("the council") to subdivide a parcel of land at Bibbenluke Ave, Duffys Forest ("the site"). The site is Lot 447 DP 48649. 2 An earlier decision was given by me in Maxwell and anor v Warringah Council (No 1) [2004] NSWLEC 74 relating to compliance or otherwise of the then proposal with the desired future character of the Boorallie Road locality. 3 Although not pressed by the council, the Duffys Forest Residents Association (the association) pressed the issue of compliance or, in its view, non-compliance, with the desired future character statement in the LEP for the Boorallie Road locality. 4 In light of this, by consent of the parties, the association was granted leave to intervene in the proceedings. A subsequent application by the association to become a party to the proceedings was also granted by the Court. 5 The earlier proceedings were confined to dealing with the issue of the desired future character of the Boorallie Road locality and all other issues were deferred for further hearing should I determine that application did not fail on this issue. This decision, therefore, was essentially a separate issue in the proceedings. 6 In particular, matters relating to the biodiversity protection and to dealing with bushfire risk issues remained to be dealt with if the applicants' then proposal satisfied the desired future locality character test. 7 Although I found that the then proposed subdivision warranted refusal for the reasons set out in the earlier decision, I also concluded that a less intense subdivision would be able to the consented to as consistent with the desired future character of the Boorallie Road locality. Such conclusion was confined only to the narrow planning issue dealt with in that stage of the proceedings. 8 A revised subdivision design was to be subject to consideration and testing against the unresolved issues including bushfire and biodiversity. 9 However, given my conclusion that a subdivision of a lesser lot yield was potentially approvable, it was not appropriate to dismiss the appeal at that time unless that was the course preferred by the applicants. 10 After that initial phase of the proceedings, the matter was dealt with, briefly, by me on a number of occasions in what was, effectively, a case management process. This included the granting of leave to the applicants to proceed on the basis of a revised plan of subdivision proposing five allotments in lieu of seven allotments. 11 The matter recommenced, substantively, with a further on-site inspections relating to the remaining issues in contention which were essentially confined to bush fire issues, impact on flora and fauna, stormwater drainage and further streetscape planning matters. 12 At the conclusion of the second full day of the in Court hearing, it became obvious that there was agreement between the stormwater drainage experts for the applicants and the second respondent that substantial earthworks would be required as part of the subdivision application and that these were not able to be set aside to a later stage. 13 These earthworks were described as swales and would involve ~700 linear m of construction along, generally, the line of the outer asset protection zone. The works would not be a contoured bank or bund along this line but would be a series of works, across the slope, and would be designed to slow down the flow of stormwater off the site whilst acting as a detaining facility for suspended particulate and similar material. 14 There was no agreement between the experts as to what would be the effectiveness, if any, of these swales in acting to prevent the escape of nutrients into the down slope bushland areas. 15 As a consequence, I indicated that I considered that this proposed construction was sufficiently potentially impacting not to be able to be deferred for settlement at the construction certificate stage pursuant to a condition. 16 I indicated that, pursuant to the decision of the Court of Appeal in Weal v Bathurst City Council [2000] 111 LGERA 181, it was necessary that this matter be dealt with the by me as part of my determination of this appeal. 17 The applicants's drainage expert, Dr Paterson, was only able to provide a purely indicative plan as to what might be the nature of swales required but this plan did not encompass anything that would be of sufficient certainty to enable me to be satisfied, in terms of the Court of Appeal's decision in Mison v Randwick City Council (1991) 23 NSWLR 734, that I had dealt with the matter appropriately. 18 As a consequence, I granted an adjournment subject to an agreement by the applicants to meet the costs of the respondents thrown away as a consequence of the adjournment (such agreement and subsequently converted, pursuant to s 69(8) of the Land and Environment Court Act 1979 into an order – the concurrence of the Chief Judge having been obtained to my doing so). 19 I adjourned the matter until the following afternoon at which time, I indicated, I proposed to issue directions as to how the matter should proceed. 20 When the parties again appeared before me, I provided them with a copy of the draft directions which I proposed to make - which directions were confined to the issue of the stormwater drainage and the proposed swales. 21 The substantive element of the directions, which I proposed to make for initial attention by the applicants, was to require the filing and service of: a plan of all on site stormwater runoff mitigation works ("the proposed swales") required as part of the subdivision application together with any further statements of evidence concerning the design, location or construction of the proposed swales; their operation or the impacts of their construction or operation 22 During the intervening period, I had also examined two documents which had been tendered by the applicants in the proceedings. These were environmental management plans that were proposed for the construction phase and for the subsequent occupation phase when, if approved, there will be five dwellings, which would have an environmental management zone between them and Ku-ring-gai Chase National Park. 23 My examination of those two documents (which are Exhibits Q and R) revealed that they were defective in a number of material ways. 24 Those defects, relevantly to these proceedings, included the omission of a number of the maps and supporting documents which were noted as being appendices to the plans but were not, in fact, included with them. 25 I was subsequently advised by the representatives of each of the respondents that the copies which had been provided to them similarly omitted these appendices and maps. 26 At the request of the applicants, I granted a further adjournment during which time the applicants were to consider what further application, if any, they wished to make to amend the application to deal with the defects which were disclosed in those two exhibits. 27 During the course of that hearing, I indicated that I was not prepared to respond to a request from Mr Cole, solicitor for the applicants, to advise whether or not I would be assisted if the applicants were to seek to adjust the inner and outer asset protection zone on proposed Lot 1 and Lot 2 to preserve more of the closed heath scrub. 28 The possible impact of the subdivision on the closed heath scrub is a matter of some contention and significance in the proceedings as the applicants acknowledged that the location of this vegetation association has been inaccurately depicted, on various plans of the subdivision application, and that this inaccuracy had consequential effects on the validity of some opinions that had been expressed by some expert witnesses. 29 When the matter came before me for a further short hearing on 16 September, the applicants sought leave to amend their application with respect to what were described as three matters. These were: 1. Extension of the directions with respect to the proposed swales to encompass the incorporation in any design of works/devices other than swales which other works/devices were required for stormwater management purposes; 2. To adjust the inner and outer asset protection zones on Lots 1 and 2 to preserve more of the closed heath scrub. The applicants noted that this may include adjustments to the building envelopes, the associated fire trail and the asset protection zones. 3. What amounts to a general leave to amend the "Environment Management Plan". I infer that this means both the environmental management plans. This leave is described in the following terms: Environmental Management Plan. This may include the matters referred to by the Land and Environment Court and tagged in Exhibits Q and R, further matters as were the subject of proposed draft conditions by the Council and the applicants and also any other appropriate matters. This leave would also include a summary statement of environmental management ameliorative measures that would become part of the development application. 30 There are three matters of concern which arise out of the scope of the application to amend. o The first of these is whether or not the leave sought to go beyond the matters relating to swales in the stormwater run-off mitigation works are our confined to matters which are purely minor and ancillary to such swales; o The second is the potentially significant nature of the amendment to the design of the proposed subdivision as a consequence of having a proper regard to the correct location of the closed scrub heath and what might be the consequential flora and fauna and the stormwater drainage impacts of that; and o Thirdly, the largely unconstrained and open-ended nature of the leave which is sought with respect to the Environmental Management Plan. 31 As a consequence, the first issue which is appropriate for me to consider is whether or not, if I were to grant the leave to amend which has been sought, the result would be an amended application which was so significantly different from the five Lot subdivision application that was before me, at the commencement of this phase of proceedings, as to constitute an entirely new application which warranted commencement of fresh development application processes to the first respondent. 32 Each of the elements in the application to amend warrant separate consideration in this regard. With respect to first element relating to swales, I am satisfied that an amendment to the application which was confined to swales and related ancillary works would not be so substantial a change as to warrant new application. 33 I have have reached this conclusion because swales and their construction would be generally consistent (without expressing any concluded the view to the appropriateness of their impacts or their acceptability) with the disturbance which would otherwise take place within the asset protection area between the two asset protection zones. 34 However, if the additional scope of the leave sought by the applicants, as including works/devices other than swales, went significantly beyond the merely ancillary or minor related works, it might well be that a fresh development application will become necessary. 35 This is not able to be assessed by me at the present stage of the proceedings but, if the applicants elects to continue, I will permit the respondents to re-agitate this issue when the precise scope of what is proposed by the applicants is available. 36 With respect to the second proposed amendment, I am also satisfied that this is not so major as to warrant a fresh application. 37 I have reach this conclusion because the proposed amendment is essentially an ameliorative or impact reducing one, as its likely probable result, and not one which will be likely to involve major changes to the impacts except, possibly, in one respect. That respect relates to the possible adjustments to building envelopes. If there is any significant potential impact arising in from that, in the view of the respondents, I will permit that to be re-agitated at a later time as also discussed below. 38 The more difficult area is the scope of the proposed amendments to the environmental management plans. 39 There are two elements to this. 40 The first is that, at earlier stages in the proceedings, the applicants disavowed the incorporation of the Environment Management Plans into the subdivision application. 41 It is now clear, at the very least with respect of the construction environmental management plans, that the nature of the works envisaged by the subdivision application requires the incorporation of this plan into the application. 42 I am also satisfied, for reasons consistent with the decisions with the Court of Appeal in Weal that it would not be appropriate for me to defer consideration of the environmental management plans for the long-term protection of the environment protection area to a later development application for the construction of houses. 43 I have reach this conclusion because, if the present application is granted, the development applications for the houses are likely to proceed in an ad hoc or piecemeal fashion and are unlikely to be lodged as part of a single comprehensive development of the site. 44 If I am wrong in this latter regard, nothing has been put to me by the applicants that would cause me to be aware of this assumption being incorrect. 45 As a consequence, I am of the view that the likely future protection of this area is something which is sufficiently fundamental to the application so that it needs to be dealt with at the subdivision stage. 46 The first question, therefore, is whether the prior disavowal and the now sought inclusion of the Environment Management Plans is such as to require a fresh application. 47 On fine balance, subject to curing the prejudices to the respondents, I am satisfied that the consideration of the present environment management plans – with all such inadequacies or omission as they might have – is not such a departure from the original application as to warrant the submission on a fresh development application. Nor, prima facie, would it be so with the mere addition of the ommitted annexures. 48 However, mere curing of these defects does not appear to be all that is envisaged by the applicants in terms of the leave sought to amend. 49 As a consequence, I am not able to assess whether the degree of proposed change to the environmental management plans is such that the matter would require a fresh development application because the nature of the application, as amended, would be so significantly different from that currently before the court as to require this cause to be followed. 50 If I were to grant leave to amend, it would be done on the usual curative bases. 51 Having reach that conclusion, I need to consider one of whether or not appropriate orders for costs and an adjournment are sufficient cure for the disadvantages that face each of the respondent's as a consequence of permitting such amendment (see discussion by Toohey J in Commonwealth v Verwayan [1990] 170 CLR 394 at 464 and 465). 52 Ms Duggan, counsel for the second respondent, submitted to me that, because of her client being a community association and the scope of what was being sought by the applicants, it would not be reasonable for me to the permit amendment as the prejudices to her client were not capable of being cured by an adjournment and costs. In that regard, she submitted that to follow a permissive course would be contrary to the efficient operations of the Court and the efficient and expeditious disposal of matters before it. As a consequence, she submitted, it would be contrary to the public interest to permit the course to be followed. 53 Under the circumstances, I am unable to except this argument. 54 It is quite clear that considerable time and effort has already been expended not merely by the applicants, but by the first respondent (through consultants and staff) and by the second respondent through the voluntary and paid efforts of those supporting it in these proceedings. 55 I do consider that, under all circumstances, it is in the interests of the proper disposition of these proceedings that they should continue at least until I were to reach a conclusion, if it were warranted, that the application had been transformed or was sought to be transformed in such a fashion that it crossed the divide from mere amendment to being so changed as to constitute an entirely different application. 56 This regard, I warn the applicants that my preparedness to continue is on the basis of them being aware that the fine line between the proposal remaining a modification, albeit substantial, of the 5 allotment application and being so different as to constitute a fresh matter of warranting a fresh application, is a very close to being crossed. 57 Therefore, subject to reserving to each of the respondents the right to re-raise the question of whether a fresh application is required in light of the further information to be provided, I propose to direct that the applicants provide such material as they wish in support of the proposed revised application by I do not propose to grant the entire leave to amend, at this stage, as discussed further below. 58 Having reached that the conclusion, I indicate that I propose to give directions which would require the applicants to prepare and file material relating to each of the three areas for which leave has being sought. 59 The time for doing this is the dealt with in the directions which conclude this decision. 60 However, at this stage, formal leave to amend is confined to amendment, with respect to item (1), to the extent that the additional works/devices are in ancillary or minor of the in nature and necessary for the efficient operation of the proposed swales about which evidence has been given and, with respect those matters contained in (2) of the application for leave to amend, that amendment is granted. 61 With respect to any scope of the application relating to a more expansive amendment to the on-site stormwater drainage mitigation works and with respect to the scope of amendments to the environmental management plans, I do not propose to determine whether I should grant leave to amend in those regards until I have sufficient particularization or detail of the proposed amendments to enable me to consider whether or not they would require a fresh application to be lodged with the first respondent. 62 With respect to the issue of costs, there are two matters which arise. 63 The more minor of them relates to the costs of and preparation for the hearing, which took place on 16 September. 64 In response to a question for me, Mr Cole indicated that it was the applicants position that some element of the costs warranted being met by the applicants but not the entirety of those costs. 65 The respondents were each of the view that the totality of those costs should be met by the applicants and, at least for the second respondent, the proposition was put that those costs should be on an indemnity basis. 66 The second issue of costs, and the more significant one, is what should be the costs basis of permitting any of the substantive amendments sought in (1), (2) or (3) of the application for leave to amend. 67 I turn, first, to the issue of the costs for attendance and preparation for the short hearing on 16 September. 68 I am of the view that an examination of the transcript of the hearing on 9 September makes it clear that the necessity for the hearing on 16 September arose, effectively, entirely as a consequence of my raising with the applicants manifest deficiencies in Exhibits Q and R – those being the two environmental management plans. 69 The second of the amendments for which leave is sought is something that was canvassed, to a limited extent on 9 September – not by way of formal amendment but more by way of the question being asked of me as to whether or not it would be of assistance to me if such an amendment was sought. The exchange appears from the top of page 13 of the transcript of the 9 September in which I indicate that I was not prepared to give such advice to the applicants. Leave to amend in that regard was not further pressed by Mr Cole on that occasion. 70 I am satisfied that the hearing, which took place on 16 September arose entirely as a consequence of the inadequacy of preparation of the applicants material or from the defects which had emerged in it. 71 As a consequence, I consider it appropriate that all of the costs of preparation for and attendance at the hearing of 16 September should be born by the applicants to the extent that they are not already covered by the order for costs that was made on 9 September with the concurrence of the parties and of the Chief Judge pursuant to s 69(8) of Land and Environment Court Act 1979. 72 In the correspondence which was handed out to me for my consideration, which the solicitors for the first respondent wrote to the applicants' solicitors on 2 July 2004 indicating that it was the first respondent's understanding that the relevant expert advising the applicants on the environmental management plans proposed that an amended environmental management plan would be provided the parties. The letter notes that the first respondent did not propose to have those advertising it undertake any further work on the environmental management plan until such time as revised documents were provided to it. 73 It is those revised documents that appear to have become Exhibits Q and R with all their self-evident and manifest deficiencies. 74 I have carefully considered whether the order for costs should be on an indemnity basis. However, as the matter was raised by the Court and not by the parties, I am not prepared to seek concurrence to go beyond the usual "as agreed or assessed" basis for those costs. 75 On the broader costs issue, I am not able to make (and I doubt that the first or second respondent's are able to make) any assessment of what might be the cost implications of either the work rendered irrelevant from that which has already been done by those advising them or the additional work which may be required as a consequence of changes to the environment management plans until the those revised documents are provided to them. 76 For that reason, I do not consider it appropriate that I seek the consent of the Chief Judge, at this time, to the making of any immediate further costs orders. 77 However, that is not to say I do not consider that such costs orders should not be made and, mindful that the second respondent is a community group and that I have been advised by those representing at that it does not have the financial means to the extent that might be expected of the first respondent, I am also satisfied that any order that I might propose to put to the Chief Judge for his consent should be in terms that do not, as a consequence of its operating at some future time, cause disadvantage to the second respondent in the continuation of the presentation of its case in these proceedings as a consequence of not having past wasted costs paid for promptly. 78 I also have no evidence of the assets or capacity of the applicants to satisfy any order for cost of which might be made against them. 79 On further reflection on remarks I made during the course of the hearing yesterday, I do not consider that it would be appropriate to seek the concurrence of the Chief Judge to making an order for security for costs as this does not seem to me to be appropriate in Class 1 proceedings of the Court's jurisdiction. 80 However, I do consider that it would be appropriate that the orders for which I seek the Chief Judge's concurrence provide a degree of immediacy for at least the second respondent with respect to past wasted costs and, in the circumstances, I consider it would also be appropriate to incorporate the first respondent in such an approach. 81 I have, therefore, concluded that I should formally grant leave to amend with respect to any minor, ancillary or supplementary works related to the swales together with the matters sought in (2) of the application for leave to amend. 82 However, I have also concluded that it is not possible for me to determine, absent further details from the applicants as to what is proposed, whether or not any more substantive expansion on (1) of the application for leave to amend – beyond that envisaged by my direction 3 of 9 September – or whether what is envisaged by (3) of the application for leave to amend will result in an amended application, if leave be granted, which was so substantially different as to require a fresh development application process. 83 The directions which I have concluded are appropriate are, therefore: 1. Directions 3, 4, 5, 6 and 7 of my directions of 9 September 2004 are vacated; 2. The applicants are to file and serve, by 5pm on 7 October 2004, a plan of all on site stormwater runoff mitigation works ("the proposed swales") required as part of the subdivision application together with any further statements of evidence concerning the design, location or construction of the proposed swales; their operation or the impacts of their construction or operation and any ancillary works/devices necessary for the effective operation of the swales; 3. The applicants are to file and serve, by 5pm on 7 October 2004, an amended plan and any supplementary statements of evidence which deal with adjustments to the inner and outer protection zones on Lots 1 and 2 together with any consequential adjustments to the fire trails and building envelopes; 4. The applicants are to file and serve, by 5pm on 7 October 2004, any material concerning stormwater drainage disposal mitigation which goes beyond that encompassed by direction (2) above; 5. The applicants are to file and serve, by 5pm on 7 October 2004, any further material concerning the proposed environmental management plans; 6. The respondents are to file and serve, by 5 PM on 20 October 2004, an estimate of the amount of costs which would have been wasted with respect to evidence rendered irrelevant if all the elements of the applicants' proposed amendments were permitted together with an estimate of the additional costs which would be incurred to deal with all of those amendments if permitted. These estimates are to be provided in categories setting out estimated legal costs and other estimated costs by area of expertise; 7. Liberty to relist before Moore C at 9 AM on two days notice; and 8. The matter is listed for further short hearing at 8:45 AM on October 26 on whether or not leave should be granted to amend in terms of items 1 and 3 of the present application to amend . 84 I indicate that, if I grant the leave to amend in the more expansive terms relating to (1) and (3) of the leave sought, I will seek the concurrence of the Chief Judge to my making of an order for requiring that the applicants pay, to the first and second respondents, the sums relating to their past wasted costs which will be set out in the material provided pursuant to direction (6) above within 21 days of the granting by the Chief Judge of his concurrence to and the consequent making of this order.The second element of the estimates will provide the applicants with some indication of their likely minimum further costs exposure as a consequence of any permitted amendments. 85 I also make clear that I would be prepared to hear, from Mr Cole, submissions as to the appropriateness of the sums nominated by the respondents in response to direction (6) and the reasonableness or otherwise of requiring payment of the amounts within a 21 day period within which it is to be paid. 86 I do not, however, in that process, propose to embark on anything involving any form of detailed assessment of individual items forming the basis of sums proposed merely as to the general reasonableness of them. 87 Obviously, the process of submissions to the Chief Judge as provided for in the Practice Direction, will remain available to the parties. Tim Moore Commissioner of the Court 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.