Land and Environment Court New South Wales Medium Neutral Citation: Kerford Developments Pty Ltd v Albury City Council [2011] NSWLEC 154 Hearing dates: 30 August 2011 Decision date: 31 August 2011 Jurisdiction: Class 1 Before: Craig J Decision: 1. The applicant's notice of motion filed on 15 August 2011 is dismissed. 2. The respondent's notice of motion filed on 24 August 2011 is dismissed. 3. No order as to costs. Catchwords: PROCEDURE - interlocutory applications - application to strike out contentions in Statement of Facts and Contentions - whether presence of threatened species on subject land can be raised as a ground on which to refuse development consent -applicable planning instrument biodiversity certified pursuant to Threatened Species Conservation Act 1995 - consideration of savings and transitional provisions of the Threatened Species Act - statutory scheme does not preclude consideration of impact on a threatened species under s 79C of the Environmental Planning and Assessment Act 1979 - motion for separate question under Uniform Civil Procedure Rules, r 28.2 - whether determination of separate question is appropriate - facts and relevant documents still in dispute between the parties and necessary to be agitated at the final hearing - applications dismissed Legislation Cited: Albury Local Environmental Plan 2010 Civil Procedure Act 2005 Crown Lands Act 1989 Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010 Cases Cited: Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 138 Category: Interlocutory applications Parties: Kerford Developments Pty Ltd (Applicant) Albury City Council (Respondent) Representation: Mr I J Hemmings (Applicant) Mr M Seymour (Respondent) Williams Love and Nicol Lawyers (Applicant) Kell Moore Solicitors (Respondent) File Number(s): 10622 of 2011 EX TEMPORE Judgment 1Presently before me for determination are two notices of motion, one filed by each party. By its notice of motion filed on 15 August, Kerford Developments Pty Ltd ( Kerford ) seeks an order that paragraph 3 of the contentions contained in the Statement of Facts and Contentions filed by Albury City Council ( the Council ) on 11 August be struck out. For its part, the Council seeks an order that a separate question be first tried and also seeks a further order striking out paragraphs 6 and 7 (amended from paragraphs 7 and 9) as framed in Kerford's Statement of Facts and Contentions. 2The present proceedings are brought in Class 1 of this Court's jurisdiction. They involve an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ( the EPA Act ). Generally, it would be inappropriate to bring proceedings to strike out paragraphs of a Statement of Facts and Contentions as if it was a pleading, notwithstanding the importance of such a Statement in the preparation of a development appeal for hearing. However, save for the Council's motion for determination of a separate question, the parties have treated the matters agitated before me as if they involved a case management hearing. 3For reasons that follow, I have determined that both notices of motion should be dismissed. The issues sought to be agitated in support of them are issues that should more properly be agitated on a final hearing when all matters of fact and law relevant to them can be fully developed. 4The land that is the subject of Kerford's development application is located in Thurgoona, an outer suburb of Albury. It has an area of about 2.26 hectares and is the residue lot in a land subdivision to which the Council granted consent in 2008 ( the residue lot ). That consent, so I am told, has been implemented. According to a condition of the 2008 consent, a significant part of the residue lot was intended to be a reserve for environmental protection and ultimately transferred to the Department of Lands under s 134 of the Crown Lands Act 1989. 5The principal environmental planning instrument controlling development on the land has now changed. The present local planning controls are those imposed by Albury Local Environmental Plan 2010 ( the LEP ). Under the LEP, the residue lot is now zoned R1-General Residential. As a consequence, Kerford now seeks development consent for a 15 lot subdivision of that lot, intended to be carried out in three stages. 6On 15 February 2011, the Minister for Climate Change and the Environment made an order conferring biodiversity certification on almost all of the land controlled by the LEP. That order was made under cl 25(2) of Sch 7 to the Threatened Species Conservation Act 1995. The order applied to the residue lot. 7Prior to making the order for biodiversity certification, a detailed assessment report was published by the Department of Environment, Climate Change and Water for public comment ( the Certification Report ). It identified the means by which the LEP sought to address biodiversity values and the provisions of the LEP that led to "an overall improvement or maintenance of biodiversity values, including threatened species and communities" (Certification Report, Executive Summary). The Certification Report also identified threatened species likely to be affected by the implementation of the provisions of the LEP. Among the threatened species identified was the vulnerable bird species known as the Speckled Warbler ( Pyrrholaemus saggitatus ). 8As I have earlier indicated, Kerford argued its application as if it was seeking directions on a case management hearing before me. Reference was made to the overriding purpose expressed in s 56 of the Civil Procedure Act 2005 with particular reference to s 58(2)(vi). 9Paragraph 3 of the Council's Statement of Facts and Contentions, being the subject of Kerford's motion, provided as follows: "The Development Application should be refused because the reserve for environmental protection that was to be provided on the site under the Consent will not be provided under the proposed development, and the proposed development will accordingly: (a) have unacceptable impacts on the natural environment including: i. Degradation of vegetation that is the preferred habitat of the Speckled Warbler, a nominated vulnerable species under the NSW Threatened Species Conservation Act 1995. ii. inappropriate development of the site will place the population of the Speckled Warbler at risk of extinction; and iii loss of a large area of vegetation on the site that has high conservation significance due to" A. the known presence of threatened species; B. the size and strategic position of the site providing linkages to adjoining conservation areas. (b) be contrary to the public interest." 10In the course of the hearing, the Council amended its statement of facts and contentions by inserting a new paragraph 3 that reads as follows: "The Development Application should be refused because: (a) The proposed development will not preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation contrary to cl 5.9(1) of the ALEP 2010. Particulars (1) The proposed development includes clearing along the Eastern boundary for the purpose of creating asset protection zones and along the Northern boundary for the purpose of constructing an access road; (2) Trees over 4.5 metres in height and 3m in spread will therefore be removed from the site; (3) Trees over 4.5 metres in height and 3m in spread provide ground cover that can be used by the speckled warbler; (4) Removal of the trees will result in the degradation of vegetation that is the preferred habitat of the speckled warbler, a vulnerable species under the Threatened Species Conservation Act 1995; (5) Inappropriate development of the site will place the population of the speckled warbler at risk of extinction; (6) It is contrary to biodiversity values to incur a loss of vegetation from the site that has high conservation significance due to: A. the known presence of a threatened species; and B. provides linkages to adjoining conservation areas because of the size and strategic position of the site; and (7) Such trees likely to be removed constitute a semi-isolated strand of vegetation that contributes to the amenity of, and provides a scenic backdrop to, the local area; (b) the proposed development will not conserve and enhance the existing aesthetic character and public amenity of Albury through the removal of native vegetation contrary to Objective (1) of clause 5.2 of the ADCP2010; (c) The proposed development will not assist in the retention and on-going protection of native vegetation that may be habitat for threatened species, namely, the speckled warbler; (d) the proposed development is contrary to the public interest in the orderly development of land because: i. it is contrary to the objectives of the ALEP2010 and ADCP2010; and ii. the reserve for the on-going protection of the speckled warbler that was to be provided on the site under the Consent will not be provided under the proposed development." 11It will be apparent that the issue sought to be raised by the Council in paragraph 3, in either form, is directed, at least in part, to the impact that the grant of development consent will have upon the Speckled Warbler. Kerford accepted that the Speckled Warbler remains a threatened species within the meaning of the Threatened Species Conservation Act . 12In substance, Kerford sought a direction that the impact upon the Speckled Warbler and its habitat should not be the subject of consideration when determining its development application. If such a direction was now given, it would be relieved of the cost of expert evidence addressing the issue and further hearing time for the appeal would be reduced. Thus, Kerford's appeal to the overriding purpose provisions of the Civil Procedure Act . 13Kerford's argument was founded in cl 26(1) of Sch 7 to the Threatened Species Conservation Act. That clause, which is in Pt 8 of the Schedule, provides as follows: " 26 Effect of biodiversity certification (1) Any development for which development consent is required under the provisions of a biodiversity certified EPI is, for the purposes of Part 4 of the Environmental Planning and Assessment Act 1979 , taken to be development that is not likely to significantly affect any threatened species, population or ecological community, or its habitat." 14Expressed succinctly, Kerford contends that the provisions of cl 26(1) preclude consideration by the Council or the Court, when determining its development application, of a contention that consent should be refused for any reason associated with the impact upon the Speckled Warbler. 15At least as a submission directed to the exclusion of evidence or argument, I cannot accept Kerford's submission. It seems to me that cl 26 is carefully framed so as to limit its application to such matters as arise for consideration under Pt 4 of the EPA Act by reference to the phrase "likely to significantly affect any threatened species ... or its habitat". As the Council submits, the provisions of the clause would appear to be directed to what it described as "mechanistic" matters rather than an absolute exclusion of consideration. 16The provisions of Pt 4 of the EPA Act in which the relevant phrase is used are ss 78A(8) and 79B(3). I accept that cl 26(1) of Sch 7 to the Threatened Species Conservation Act would operate so as to remove any obligation on the part of Kerford to prepare a species impact statement (s 78A) or to seek concurrence of the Director-General under s 79B. However, the matters to be considered when determining a development application, as they are identified in s 79C(1) of the EPA Act, are expressed in more general terms. Relevantly, consideration of "the likely impacts of that development, including environmental impacts on both the natural and built environments" (s 79C(1)(b)) does not contain the verbal formula found in cl 26(1). That clause would not, in terms, preclude consideration of an impact associated with the use of land by the Speckled Warbler by reference to s 79c(1)(b). 17Moreover, a further process of statutory interpretation aids the tentative conclusion I have expressed. The provisions of Pt 8 of Sch 7 to the Threatened Species Conservation Act , in their present form, were inserted by the Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010. Part 8 of Sch 7 is included as containing savings provisions. The 2010 Act also inserted a new Pt 7AA into the Threatened Species Conservation Act providing an amended regime for biodiversity certification. Section 126I is one of the sections addressing biodiversity certification under the new regime. Subsection (2) of that section contains provisions which are essentially the same as those found in cl 26(1) of Sch 7. However, subsection (3) of s 126I provides as follows: "(3) A consent authority, when determining a development application in relation to development on biodiversity certified land under Part 4 of the Planning Act, is not required to take into consideration the likely impact of the development on biodiversity values (despite any provision of the Planning Act or any regulation or instrument made under that Act)." Reference to "biodiversity values" in that section includes reference to threatened species (s 4A). 18An equivalent provision to s 126I(3) was not inserted into Pt 8 of Sch 7 when that Schedule was inserted by the amending legislation. If cl 26 had the effect for which Kerford contends, s 126I(3) would appear to be redundant, at least as it pertains to consideration of likely impacts upon threatened species pursuant to s 79C(1) of the EPA Act. Powerful reasons would be required to infer such redundancy before that conclusion was reached. None have been advanced to persuade me of that position. 19Nothing that I have said is intended to preclude the argument advanced by Kerford at the final hearing nor to suggest that substantial reliance cannot be placed upon the detail in the Certification Report to address the issue raised. However, by reason of the statutory provisions that I have discussed, I am not prepared to preclude consideration of the issue raised by the Council in its amended paragraph 3 of the contentions in the Statement of Facts and Contentions. The issues agitated before me are sufficiently open to rational argument so as to allow the issue to be fully agitated at the hearing when all the facts are before the Court. The separate question 20The Council makes application to have determined, as a separate and preliminary question, the following: " Whether pursuant to s 80(2) of the Environmental Planning and Assessment Act 1979 the Court must refuse the development application the subject of this appeal ." 21Its application is made in reliance upon the provisions of Pt 28, r 28.2 of the Uniform Civil Procedure Rules ( UCPR ). Its argument is founded on the conditions of the 2008 Development Consent. It contends that if it succeeds in establishing that the present application is precluded, as a matter of law, by operation of the 2008 consent, the parties will be spared the expense of preparing for the merit hearing of Kerford's development application. Its success will result, so it is submitted, in a saving of Court time and considerable saving of costs to the parties. 22I have recently considered the principles applicable to the determination that a separate question be tried pursuant to UCPR 28.2 ( Wollongong City Council v Vic Vellar Nominees Pty Ltd [2011] NSWLEC 138). For the sake of brevity in delivering this judgment I do not repeat all that I there said. However, I emphasise the need to be satisfied that the utility, economy and fairness to the parties in making an order of the kind sought is beyond question ( Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1) at [170] per Kirby and Callinan JJ and also the need to be confident that all facts are "clearly ascertainable" ( Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193) at [198]. 23I would add that a high degree of confidence needs to be held that any assumed facts are unlikely to be contested. This requirement is reflected in principle (5) repeated by Jagot J in Young at [6] where her Honour stated (omitting citation of authority): "(5) In order to dispose of what may first appear to be a pure question of law, the inquiry might "range round questions of fact and the proper inferences to be drawn from the primary facts". Hence, it should be able to be seen "with clarity" that the determination of the separate question will be beneficial to the conduct of the proceedings and resolution of the dispute." 24The present question does turn on matters of fact and inferences to be drawn from those facts. While these facts may, in essence, be ascertainable from documents, the identity of those documents that are ultimately seen to be relevant is, so it seems, the subject of some conjecture. When questioned on this matter, counsel for the Council initially identified only a small number of documents as being necessary for the purpose of determination. On further reflection, it was acknowledged that other documents might be relevant to the question sought to be argued. The difficulty experienced at this stage in making a definitive statement as to the relevant documents and agreement in them by Kerford militates against the appropriateness of ordering the trial of the separate question framed by the Council. 25The application to strike out paragraphs 6 and 7 of Kerford's Statement of Facts and Contentions is directed to excluding an estoppel argument. The facts relevant to this argument are in contest. Both the topic and the absence of agreement as to relevant fact renders it wholly inappropriate now to exclude those issues from being agitated on the final hearing of this appeal. Orders 26For these reasons, the orders that I make are as follows: 1. The applicant's notice of motion filed on 15 August 2011 is dismissed. 2. The respondent's notice of motion filed on 24 August 2011 is dismissed. 3. No order as to costs. 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: 09 September 2011