Land and Environment Court New South Wales Medium Neutral Citation: Fostoria-Fannon (Aust) Pty Limited v Minister Administering the Water Management Act 2000 (No 2) [2011] NSWLEC 64 Hearing dates: 14 March 2011 Decision date: 14 March 2011 Before: Preston CJ Decision: The Court orders: 1. The hearing on 14-16 March 2011 is vacated. 2. The applicant is to file and to serve on the respondent before 4.00pm on Friday 18 March 2011 a Channel Management Plan prepared by a suitably qualified expert and including the following: (a) drawing and plans showing in detail the works proposed to be carried out along Swamp Oak Creek on Lot 2, DP 615451, which works are to include: (i) those works set out 1 and 2 in the report by Dr David Outhet entitled "New Dam on Swamp Oak Creek at Balarang - Expert Opinion - Comments and Recommendations on 'Stream Works Management Plan'" by Brown Consulting, October 2010; and, (ii) the works and methodology for addressing appropriately the stability of the spillway of the new dam, including plans for the armouring of the right bank of the spillway; (b) the method considered most suitable for the safe removal of the Booth Dam so as to cause minimal harm to the environment, together with details and plans for removal of the Booth Dam and the rehabilitation of the area of the Booth Dam and relevant surrounding area; (c) method of implementation of the Channel Management Plan; and (d) curriculum vitae of the author of the Channel Management Plan. 3. The respondent is to file and to serve on the applicant before 4.00pm on Monday 21 March 2011: (a) its response as to the adequacy of the applicant's Channel Management Plan; and (b) if adequate, a draft of the recommended terms and conditions of the amendment to the existing approval. 4. The applicant is to file and to serve on the respondent its response to the draft terms and conditions of the amendment to the existing approval before 4.00pm on Tuesday 22 March 2011. 5. Proceedings are set for hearing on Wednesday 23 March 2011. 6. The applicant is to pay the respondent's costs of the court attendance on 16 December 2010. 7. The applicant is to pay the respondent's costs thrown away by vacation of the hearing on 14-16 March 2011. Catchwords: COSTS - vacation of hearing - applicant's evidence late and incomplete - whether costs order fair and reasonable - applicant to pay costs thrown away by vacation of hearing Legislation Cited: Water Management Act 2000 Cases Cited: Fostoria-Fannon (Aust) Pty Limited v The Minister Administering the Water Management Act 2000 [2010] NSWLEC 121 Category: Costs Parties: Fostoria-Fannon (Aust) Pty Limited (Applicant) Minister Administering the Water Management Act 2000 (Respondent) Representation: Dr S Berveling (Applicant) Ms C Spruce (Respondent) P J Duffy & Associates (Applicant) New South Wales Office of Water, Department of Environment, Climate Change and Water (Respondent) File Number(s): 10002 of 2011 and 10832 of 2009 Ex Tempore Judgment 1These proceedings concern different applications by the applicant under the Water Management Act 2000 in relation to two dams on the applicant's property. Proceedings no 10832 of 2009 involve an appeal against an order that the applicant remove a new dam constructed without approval by the applicant while proceedings no 10002 of 2011 involve an appeal against a refusal to modify an existing approval for an older dam so as to also authorise the new dam. 2The proceedings have had a lengthy history in this court: see Fostoria-Fannon (Aust) Pty Limited v The Minister Administering the Water Management Act 2000 [2010] NSWLEC 121. They have changed direction a few times. The course that they are set on at the moment is for the applicant to have proceedings no 10002 of 2011 heard and determined first with a view to obtaining approval for the new dam that has already been constructed. If this occurs, the earlier appeal no 10832 of 2009 can be upheld and the order revoked because the current unlawfulness of the new dam would have been cured for the future. 3There have been a number of setbacks in the preparation of these proceedings almost always associated with the applicant failing to comply with various directions the court has made for the proper preparation of the proceedings for hearing. Directions as to the filing of experts' reports have been not complied with on a timely basis. The reports that have been filed have often been inadequate and have lacked detail or say that they are only preliminary and need further investigation and report. 4The consequence has been that there have been a number of attendances far beyond what would normally be expected to prepare the proceedings for hearing. 5On a previous occasion, 16 December 2010, there was an attendance before me and the proceedings were set for hearing starting today, 14 March and continuing to 16 March 2011. The proceedings were set for hearing at that occasion in the expectation that all of the expert reports would have been ready and that the hearing would be able to proceed on the allocated hearing days. 6The applicant had filed and served, and the respondent had responded to, a preliminary engineer's report. That preliminary report was superseded by a final report filed shortly before the court attendance on 16 December 2010. 7An issue arose as to whether there should be an order that the applicant pay the respondent's costs for that attendance on 16 December 2010. I decided to reserve the question of costs on that occasion because it was not clear to me at that time as to whether the preliminary report that had been filed would ultimately be relied upon by the applicant in addition to the final report. If it had been able to be relied upon, then the attendance on 16 December 2010 would not have been a complete waste of time and it may be that there was some utility gained by the attendance. 8However, as events have transpired, it has become clear that the preliminary report will not be relied upon by the applicant and that the final report has completely superseded the preliminary report and hence the earlier attendance and the respondent's responses to the preliminary expert report were futile. 9On this basis, I consider that it is fair and reasonable to make a cost order in relation to the respondent's costs of attending on that occasion and I intend to do so. 10The other matter of costs concerns the costs thrown away by the vacation of the hearing which, as I said, was due to commence today. 11This matter has been case managed ever since there was an earlier application to vacate a hearing last year. Attempts have been made to obtain all of the expert evidence that the applicant wishes to rely upon so that the hearing could proceed on this occasion. 12One of the recurring problems with the applicant's case has been that the experts have expressed their opinions at a level of generality and not particularity and often as preliminary rather than final conclusions. 13As I have said, the subject matter of these proceedings concerns two dams, an old dam and a new dam, which have been existing on the property for some time. 14The respondent's central concerns have been the stability of the dams and the management of the water channel within which each of the dams has been constructed. 15The applicant has sought by the two proceedings to maintain each of the dams. Hence, it was incumbent upon the applicant to address the concerns of the respondent with final and detailed evidence as to the stability of each dam and the proper management of the water channel. 16It is only in the last week that the applicant has put forward, by way of acceptance of the respondent's evidence, a detailed proposal as to what the applicant proposes to do to improve the stability of the new dam, to remove the operation of the old dam and to ensure proper channel management. 17This evidence should have been filed well prior to the hearing. The issues have been raised repeatedly throughout the last year and at the various case management attendances before me. 18It is most regrettable that the matter has not been ready to proceed today and that yet again there needs to be an extension of time in order for the applicant to put material on which it should have, in the proper preparation of its case, put on at an earlier point in time. 19Nevertheless, it does seem that the respondent's and applicant's respective experts have reached consensus now as to the details of the works proposed to the new dam, the removal of the operation of the old dam and the upgrade of the management of the channel. 20This consensus needs, however, to be incorporated into a detailed channel management plan. The experts have discussed how this should be done and it is now agreed that it can be done by this Friday 18 March 2011. 21The respondent will then be able to put forward the suggested terms and conditions of the amendment to the existing approval so that there is a resolution of the appeals. This can be done by next Monday 21 March 2011. On that basis then, the hearing could proceed next week. It may be that the hearing will be short. 22The consequence is that the hearing cannot continue in the time allocated between 14 and 16 March 2011 and there will need to be a vacation of the hearing and the matter set for hearing again next week. Although this is regrettable, it is really the only solution that is sensible at this point in time. 23However, there needs to be a cost consequence for the applicant in not being ready to conduct the hearing at the time allocated. As I have said, there has been a long history of breaches of court directions by the applicant and the applicant was under no doubt as to how it needed to prepare its case but it has not done so. 24It is not fair and reasonable that each party pay their own cost. To the contrary, the applicant should pay the respondent's costs thrown away by reason of the vacation of the hearing between 14 and 16 March 2011. 25I should also mention that this has a cost consequence for the court and the administration of justice. Of course, such costs are never awarded but it should not go without noting that when the court allocates matters for hearing there is an allocation of resources by the court, which is also thrown away when a hearing is vacated. It also has a consequence to other litigants in the court system who have been denied the opportunity to have their case heard on the hearing dates that have been allocated to the particular applicant and respondent in this case. This needs also to be borne in mind when parties fail to comply with timetables and are forced to make an application for vacation of a hearing. 26For these reasons, there should be an order that the applicant pay the respondent's costs thrown away by reason of the vacation of the hearing between 14 and 16 March 2011. 27I make the following orders and directions: 1. The hearing on 14-16 March 2011 is vacated. 2. The applicant is to file and to serve on the respondent before 4.00pm on Friday 18 March 2011 a Channel Management Plan prepared by a suitably qualified expert and including the following: (a) drawing and plans showing in detail the works proposed to be carried out along Swamp Oak Creek on Lot 2, DP 615451, which works are to include: (i) those works set out 1 and 2 in the report by Dr David Outhet entitled "New Dam on Swamp Oak Creek at Balarang - Expert Opinion - Comments and Recommendations on 'Stream Works Management Plan'" by Brown Consulting, October 2010; and, (ii) the works and methodology for addressing appropriately the stability of the spillway of the new dam, including plans for the armouring of the right bank of the spillway; (b) the method considered most suitable for the safe removal of the Booth Dam so as to cause minimal harm to the environment, together with details and plans for removal of the Booth Dam and the rehabilitation of the area of the Booth Dam and relevant surrounding area; (c) method of implementation of the Channel Management Plan; and (d) curriculum vitae of the author of the Channel Management Plan. 3. The respondent is to file and to serve on the applicant before 4.00pm on Monday 21 March 2011: (a) its response as to the adequacy of the applicant's Channel Management Plan; and (b) if adequate, a draft of the recommended terms and conditions of the amendment to the existing approval. 4. The applicant is to file and to serve on the respondent its response to the draft terms and conditions of the amendment to the existing approval before 4.00pm on Tuesday 22 March 2011. 5. Proceedings are set for hearing on Wednesday 23 March 2011. 6. The applicant is to pay the respondent's costs of the court attendance on 16 December 2010. 7. The applicant is to pay the respondent's costs thrown away by vacation of the hearing on 14-16 March 2011. ********** 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: 15 April 2011