Land and Environment Court New South Wales Medium Neutral Citation: Vincent Land Pty Ltd v Hyder Consulting Pty Ltd (No 2) [2012] NSWLEC 272 Hearing dates: 29 November 2012 Decision date: 29 November 2012 Jurisdiction: Class 4 Before: Pain J Decision: 1. The Court declares that the purported approval granted by the Second Respondent pursuant to section 96 of the Environmental Planning and Assessment Act 1979 with respect to land described as "109 Mt Vincent Road, East Maitland, Lot 220DP755237", being the subject of the Notice of Determination dated 22 November 2011 for modification of development consent DA91-117 is void and of no effect. 2. The Court orders that: (a) The Second Respondent and its servants, agents and assigns, be restrained from carrying out any works on, or using, the land comprising Lot 201 DP520191 and Lot 220 DP1095387, known as 109 Mt Vincent Road, East Maitland in purported reliance on the purported section 96 approval. (b) The Second Respondent pay the Applicant's costs of the whole proceedings as between the Applicant and the Second Respondent (when the matter has been fully concluded) on a party and party basis as agreed or failing agreement, as assessed. (c) The costs of the substantive proceedings as between the Applicant and First Respondent are reserved. 3. The Court notes: (1) The proceedings are otherwise discontinued without prejudice to the Applicant's rights to bring proceedings on same or similar grounds in respect of the discontinued claims against the Second Respondent. (2) Parties to advise Chambers on the outstanding question of costs by Thursday 6 December 2012. Catchwords: JUDICIAL REVIEW - application by consent for making of declaration of invalidity of modification to a landfill facility consent - necessity for declaration established Legislation Cited: Environmental Planning and Assessment Act 1979 s 96 Cases Cited: Carr v Minister for Land and Water Conservation [2000] NSWLEC 89 Mison v Randwick City Council (1991) 23 NSWLR 734 Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 261 Category: Consequential orders Parties: Vincent Land Pty Ltd (Applicant) Hyder Consulting Pty Limited (First Respondent) Maitland City Council (Second Respondent) Representation: Mr T Howard (Applicant) Mr C Withers (First Respondent) Mr M Staunton (Second Respondent) Mallik Rees Lawyers (Applicant) Kennedys (First Respondent) Lindsay Taylor Lawyers (Second Respondent) File Number(s): 40198 of 2012 EX TEMPORE Judgment 1Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 261 at [4], [6] states that: Maitland City Council (the Council) granted itself development consent for a waste facility known as the Mount Vincent Waste Facility on 28 June 1991. Hyder, as agent for the Council, lodged a modification application for that consent in accordance with cl 115(h) of the Environmental Planning and Assessment Regulation 2000 (the Regulation), that is, with the Council's consent as landowner. The Council approved the modification application on 22 November 2011 (modification consent). ... The Class 4 summons filed by Vincent Land Pty Ltd (Vincent) on 27 February 2012 seeks numerous declarations and orders including a declaration that the modification consent is void and of no effect (prayer 1). An injunctive order restraining both Respondents from acting in reliance on the consent is also sought (prayer 4). 2I must rule briefly on the application made by consent to the Court for a declaration of invalidity of the modification of the development consent in the terms sought and the orders handed up this afternoon by the parties. It is not appropriate that the Court automatically make declarations by consent as these operate at large having effect beyond the parties in the matter. The Court must be satisfied of the necessity of declaring a particular legal instrument to be void and of no effect. I will make the declaration on the basis of what has been put before me. The cumulative failures on the Council's part when the modification application was determined, outlined below, do justify the necessity for the declaration to be made. 3I have been provided with documents (exhibit 1A) that identify formally the original terms of the consent. I note in particular the original consent for DA 103/5/91117 was granted by the Council to itself. I have been referred to condition 6 of that consent. I note it is a fairly lengthy condition and, as Mr Staunton submitted, essentially contains all the effective operational parts of the consent. 4I was taken to the application to modify that consent dated 16 February 2011. It is described as DA 91-117, the file number that appears on the application to modify the consent. I note in particular the description of the modification sought was an increase in the final landform height to a maximum RL of 65 metres. The original consent allowed for an RL of 54 metres so that an increase of some 11 metres was sought in the modification. 5Documents were filed in support of that modification application. The report of Hyder Consulting Pty Ltd (Hyder) in particular was provided and it identified (tab 2 of the exhibit) in the table which appears in 2.2, background, that the proposed modification was intended to allow an extension of time of the waste facility of four years. 6In terms of the Council's consideration, the document which appears behind tab 3 of exhibit 1A are the minutes of a Council meeting, dated 22 November 2011. I have been referred to s 2.0, proposed development modification, which identifies the intention to expand the life of the waste facility for four years through this modification process. 7The application was determined and in the course of the grant of approval for the modification, condition 6 was substantially amended. As pointed out in submissions, that was not the subject of a modification application and its effect was to replace all the substantial operative terms in the original condition 6 with a much more truncated obligation under the Building Code of Australia and other matters. 8In addition to those matters leading up to the grant of the approval, I have also been taken to a further report prepared for the Council by GHD in April 2009 which identifies that as a result of the determination of a maximum RL of 65 metres, that in fact the life of the waste facility is extended for eleven years not four years. That is further confirmed by a subsequent report prepared by Hyder which refers to the extension of the facility if the final capping level is RL 65 as nine years. In either case the extension is substantially more than the four years which was the basis on which the Council approved the modification. 9The advertising for the notification to the public of the fact that the modification application had been approved by the Council and the three newspaper advertisements that appear behind tab 10 of the exhibit identify that approval of the modification has been granted, the basis is to increase the RL to 65 metres from 54.5 metres, and that there is an increase of the life of the facility of 4.5 years. These matters appeared on three occasions in the three advertisements that were placed by Maitland City Council contained in tab 10. 10Further to this evidence, the Council has admitted three matters in the Points of Claim (to which I will come shortly). Firstly, that there has been a breach of procedural fairness in that there was a failure to accurately identify in the notice to the public and in the assessment of the actual modification application the fact that there was going to be an eleven year extension by virtue of what was being approved, not four years, and that the public was misled in that regard. 11Secondly, there has also been a change in the nature of the alteration sought as a result of the substantial amendment of condition 6. This means that the principle identified by Priestley J in Mison v Randwick City Council (1991) 23 NSWLR 734 set out recently in Carr v Minister for Land and Water Conservation [2000] NSWLEC 89 at [55] applies. A consent authority cannot purport to grant consent for a particular development in such a way that it has the effect of significantly altering the development before it. There has clearly been such an impermissible change in the development in relation to the modification in relation to condition 6. 12A third basis on which the modification application can be declared invalid is that the Council's decision in these admitted matters resulted in an unreasonable decision by the Council. 13The particular details of these three identified matters are set out in the Points of Claim. I have been directed to par 13 of the Points of Claim which identifies the nature of what was sought in the modification application. The second and subsequent notifications identified that the life of the landfill facility was identified as four years when in fact it was eleven years, par 55 and 68 of the Points of Claim. These matters were admitted by the Council in its defence filed in the proceedings. In particular par 82 of the defence admits that the Council failed to afford procedural fairness to parties to whom it notified the modification application and to members of the public. 14In relation to condition 6, the Points of Claim refer at par 112115 to the fact that the original consent contained condition 6. Paragraph 115 identifies the changes and deletions that resulted from the modification approval. Those paragraphs are admitted by the Council in its defence. Paragraph 119 of the Points of Claim is also admitted by the Council and states that it was not reasonably open to the Council to be satisfied that the development as proposed to be modified was substantially the same as the development approved by the original consent. 15Paragraph 123 of the Points of Claim states that the Council's purported satisfaction that the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted was manifestly unreasonable. This is also admitted by the Council in its defence. That appears to be established on the evidence. 16Finally there is an admission by the Council in relation to par 161 of the Points of Claim to the effect that the amendments made to condition 6 of the original consent as pleaded in par 112-115, which I have noted already were admitted, had the effect of significantly altering the development in respect of which the modification application was made. 17I am satisfied on those three bases that it is appropriate to make the declaration sought in the orders handed up today, with only one small change, being the deletion of the words "to the first respondent". Declaration and Orders 18The Court declares that the purported approval granted by the Second Respondent pursuant to section 96 of the Environmental Planning and Assessment Act 1979 with respect to land described as "109 Mt Vincent Road, East Maitland, Lot 220DP755237", being the subject of the Notice of Determination dated 22 November 2011 for modification of development consent DA91-117 is void and of no effect. 19The Court orders that: (a)The Second Respondent and its servants, agents and assigns, be restrained from carrying out any works on, or using, the land comprising Lot 201 DP520191 and Lot 220 DP1095387, known as 109 Mt Vincent Road, East Maitland in purported reliance on the purported section 96 approval. (b)The Second Respondent pay the Applicant's costs of the whole proceedings as between the Applicant and the Second Respondent (when the matter has been fully concluded) on a party and party basis as agreed or failing agreement, as assessed. (c)The costs of the substantive proceedings as between the Applicant and First Respondent are reserved. 20The Court notes: (1)The proceedings are otherwise discontinued without prejudice to the Applicant's rights to bring proceedings on same or similar grounds in respect of the discontinued claims against the Second Respondent. (2)Parties to advise Chambers on the outstanding question of costs by Thursday 6 December 2012. 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: 31 January 2013