Land and Environment Court New South Wales Medium Neutral Citation: Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 2) [2018] NSWLEC 53 Hearing dates: 10 April 2018 Date of orders: 10 April 2018 Decision date: 10 April 2018 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [33] Catchwords: NOTICE OF MOTION – civil enforcement and judicial review proceedings – leave sought to file and serve further amended summons – summons sought to be amended in light of expert evidence produced – respondents sought to vacate hearing dates in response – leave to serve further amended summons should be granted – hearing dates vacated Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 75J, 76A Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 Category: Procedural and other rulings Parties: Muswellbrook Shire Council (Applicant) Hunter Valley Energy Coal Pty Ltd (First Respondent) The Secretary, Department of Planning and Environment (Second Respondent) Representation: Counsel: R Lovas (Applicant) J Taylor (First Respondent) N Kelly (Second Respondent) Solicitors: Moray & Agnew Lawyers (Applicant) King & Wood Mallesons (First Respondent) Department of Planning and Environment (Second Respondent) File Number(s): 2017/00236338 Publication restriction: Nil EX TEMPORE Judgment 1. Before the Court is a notice of motion filed on 16 March 2018 by Muswellbrook Shire Council ('Council') seeking an order that leave be granted to file and serve a further amended summons. The summons for which leave is now sought is a version of the summons attached to a document tendered by Council and styled "Short Minute of Order – 28 March 2018" (which I have admitted as Exhibit A). 2. The motion was previously before Preston CJ of LEC on 28 March 2018 and was adjourned for further hearing today. Mr R Lovas, of counsel, appears for Council; Ms J Taylor, of counsel, appears for the first respondent; and Mr N Kelly, of counsel, appears for the second respondent. 3. The proceedings were commenced by way of summons filed on 3 August 2017 pursuant to which Council seeks declaratory and consequential relief against Hunter Valley Energy Coal Pty Ltd ('first respondent') and the Secretary, Department of Planning and Environment ('second respondent') in relation to the Mt Arthur Coal Rehabilitation Strategy dated 26 May 2017 ('Rehabilitation Strategy') prepared by the first respondent. Council alleges that the Rehabilitation Strategy does not comply with condition 42 of a Project Approval for the Mt Arthur Coal Mine – Open Cut Modification Project dated 26 September 2014 ('Modified Project Approval'). 4. The background facts were considered by the Chief Judge in Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184, a judgment his Honour handed down on 20 December 2017 in respect of an earlier notice of motion filed by Council, seeking orders that the then summons be amended and that Council be granted leave to serve expert evidence ('first motion'). 5. For the purposes of today's proceedings, it is sufficient for me briefly to note the following facts. Coal mining began at the Mt Arthur Coal Mine in the early 1960's. The mine has been modified on a number of occasions. It is currently operated by the first respondent. 6. In 2010, the Minister for Planning granted project approval under the then Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) ('the EP&A Act') to consolidate its open cut mining operations and some activities at the mine. 7. On 26 September 2014, the Planning Assessment Commission, as delegate of the then Minister for Planning and Infrastructure, issued the Modified Project Approval pursuant to s 75J of the EP&A Act. Conditions 41A and 42 of Schedule 3 of the Modified Project Approval provided for the rehabilitation of the site and required the preparation of a revised strategy. Compliance with those conditions, and more particularly condition 42, is the subject of the substantive proceedings. 8. On 26 May 2017, the first respondent prepared the Rehabilitation Strategy purportedly to address condition 42. The Rehabilitation Strategy was submitted to, and approved by, the second respondent on 7 June 2017. 9. The proceedings brought by Council are both civil enforcement proceedings and judicial review proceedings. Council is concerned that the rehabilitation being carried out by the first respondent purportedly in accordance with the conditions of the Modified Project Approval is not being conducted appropriately. The civil enforcement aspect is to restrain and remedy the alleged breaches of s 76A(1) of the EP&A Act (as it was when the summons was filed). In essence, Council alleges that the first respondent is not carrying out the development in accordance with the conditions. 10. The judicial review aspect of the proceedings relates to Council's contention that the second respondent's opinion of satisfaction in relation to the Rehabilitation Strategy is invalid. 11. Some procedural history of the matter is also helpful to explain the motion before the Court today. In the first motion, Council sought leave to rely upon expert evidence and although such leave was opposed, leave was granted on 20 December 2017 at which time the Court gave directions for the further preparation of the matter and for the listing of the matter for hearing for three days from 1 May 2018. 12. I am informed that when the matter was before the Chief Judge for mention on 28 March 2018, a document styled "Short Minute of Order – 28 March 2018" was circulated and provided to the Court. That document (which I have admitted as Exhibit A) attaches a draft summons styled "Further Amended Summons" (which contained further amendments from the draft attached to the present notice of motion which were marked up colourfully in yellow and green). The further amended summons contains amendments which respond to the expert evidence of Dr Cherie McCullough (for which leave was earlier granted in the first motion). 13. The respondents do not oppose the further amendment, however, they each submit that, given the nature and extent of the changes, their acceptance of the further amended summons raises concerns about their ability to prepare the matter in time for the scheduled hearing on 1, 2 and 3 May 2018. 14. Each respondent notes that the further amended summons may require the marshalling of evidence to respond to the further allegations (and the expert evidence now relied upon by Council). If the Court is minded to allow the amendment, the respondents therefore maintain that an adjournment of the hearing would be required. 15. Council moves on the affidavit of Mark James Brothers. Mr Brothers is the solicitor for Council. He deposes in relation to the retention of Council's expert, Dr McCullough, in January this year and that an expert report prepared by Dr McCullough was served on the respondents on about 5 March 2018. Mr Brothers' affidavit also attaches an earlier draft of the further amended summons which is not significantly dissimilar to that in Exhibit A. 16. Mr Brothers also deposes that the report of Dr McCullough (which is annexed to his affidavit and which I have read) raised "further areas of non-compliance". Mr Brothers details his request for and receipt of instructions to pursue the additional areas of non-compliance by way of the further amended summons. 17. Mr Lovas stated that he only became aware this morning that a condition of the respondents accepting the amendment was that they required an adjournment. In the circumstances, Mr Lovas had been unable to obtain instructions as to whether to consent to the adjournment, however anticipated his client may be reluctant to lose the hearing dates. I consider in the circumstances that Council neither consents to nor opposes the adjournment. 18. Ms Taylor, counsel for the first respondent, submitted that the first respondent was "unlikely" to be able to prepare material by the hearing dates in response to the expert report of Dr McCullough which annexes three volumes of documentation. She also submitted that despite the fact that the first respondent had already retained two experts, it was unlikely that they would be in a position to respond to Council's evidence and be in a position properly to address the manner in which the claim is now put in time for the hearing. 19. The first respondent read the affidavit of Debra Jean Townsend sworn 10 April 2018, in which she supports the vacation of the hearing dates. Ms Townsend deposes that having received correspondence from Council's solicitors on 27 March 2018 enclosing the revised draft further amended summons, she has endeavoured to obtain expert evidence on behalf of the first respondent to address the range of matters pleaded in the revised further amended summons. She deposes that she is "not confident" that it will be possible for the first respondent to prepare and file its expert evidence in time for the current hearing dates (which I note are three weeks' away). 20. Ms Taylor informed the Court that the first respondent's position, simply stated, is that it will not be in a position to have marshalled and provided to the parties any expert evidence upon which it intends to rely. Ms Taylor also submits that the area of dispute the subject of the earlier summons was "quite confined" but that it has now become quite broad. 21. Mr Kelly, counsel for the second respondent, submits that, with the hearing being less than three weeks' away, it is "unrealistic" to expect the second respondent, given the nature of the amendments sought specifically in relation to the second respondent, to have time to respond. 22. Mr Kelly also submits that, irrespective of Dr McCullough's material, the second respondent's view is that although much will depend upon the construction and interpretation of condition 42, the amendments to pars 12, 13 and 16 (and I assume 16A, 16B, 16C and 16D) of the further amended summons, significantly change the manner in which the claim is now pleaded against the second respondent. In particular, he submits that it is now pleaded that the level of satisfaction that was required in regard to the Rehabilitation Strategy was formed in the absence of taking certain (now specifically pleaded) matters into account and that the second respondent's failure to take those matters into account was itself unreasonable in a Wednesbury sense. Mr Kelly also points to the further amendments in relation to the expanded challenges to the second respondent's reported satisfaction with the Rehabilitation Strategy as a matter that may require the second respondent to marshal evidence. 23. Having heard argument today and having considered the material, and not without some reluctance, I am of the view, for reasons I shall shortly give, that Council should be allowed to amend the summons – and that an adjournment is appropriate. 24. Particularly noting the evidence of Mr Brothers in relation to the manner in which he received the report of Dr McCullough and the further concerns in relation to the alleged areas of non-compliance with the Rehabilitation Strategy, I am of the view that Council should be allowed to properly prepare its case in light of the new material. 25. The manner in which a Court should consider a party's application to amend a pleading has been the subject of much consideration by the courts. The High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 provides appropriate guidance to the Court. The matters to be taken into account include the nature and importance of the amendment to the party's claim, when the amendment was sought, and the explanation for any delay in applying for an amendment. 26. I have taken into account those matters in forming a view that Council should be entitled to amend its summons. The consequence of my finding is that the respondents' position regarding the vacation of the hearing dates in three weeks raises matters of some nicety. 27. Although not without some reluctance, I accept the submissions of counsel for each of the respondents and the evidence of Ms Townsend that, in the light of the amendments (which themselves have sprung from the evidence of Dr McCullough), they will not be in a position to have the matter properly prepared by the hearing dates. My reluctance arises from the fact that the evidence in relation to the respondents' state of preparedness is somewhat scant. However, I accept the fact that two experts have been retained who may not be in a position to have their evidence prepared in time for proper service and consideration by the other parties. I further accept the slightly different position of the second respondent in that the amended summons (and in particular the more recent amendments) expands the manner in which Council puts its case in relation to Wednesbury unreasonableness. 28. I am conscious however that the respondents have been aware of the amendment sought for some time, and I assumed – and counsel has now confirmed – that the matter was stood over to today to allow the respondents to articulate with some particularity their response to the proposed amendment. Notwithstanding this, I also accept that the more recent amendments expand the manner in which Council puts its case. 29. Whilst I have expressed some concern in relation to the evidence as to the difficulties faced by the respondents, I am conscious of the fact that the adjournment causes delay, wasted costs and importantly has an effect not just on the parties but upon the Court itself and other litigants. The principles in relation to an application to vacate and adjourn hearings have been usefully summarised in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 where Ward J said at [13]: The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court. 1. I have taken those matters into account. Whilst I have a concern in relation to the vacation of hearing dates where matters have been set down for some months, after weighing the competing matters, I am of the view that the respondents should be given the opportunity of addressing, in a considered timetable, the manner in which Council's claim is now to be propounded and marshal any evidence. 2. Therefore, I direct the parties to confer and agree and draft appropriate directions in accordance with the Court's Practice Note – Class 4 proceedings, taking into account the further conduct that is required to be undertaken and providing for a pre-trial directions hearing before the judge before whom the matter is listed, 21 days before the hearing date, and to provide that draft to my Associate by close of business on 11 April 2018. 3. If I am satisfied with the draft short minutes, I will attend to the matter being set down for hearing in the range of 10 to 14 September or 17 to 21 September 2018, dates which I am informed are convenient and appropriate to the parties, their legal representatives, and their experts. Orders 1. The Court orders that: 1. The applicant is granted leave to amend its summons in the form attached to Exhibit A within 7 days. 2. The hearing dates of 1, 2 and 3 May 2018 are vacated. 3. The parties are to confer, agree and prepare directions in accordance with the Practice Note - Class 4 Proceedings, attending to all outstanding procedural matters including the filing and serving of evidence and preparation of court books and submissions, and provide the agreed directions to my Associate by close of business on 11 April 2018. ********** Amendments 18 April 2018 - Par [7] - 'Commissioner' is substituted for 'Commission'. 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: 18 April 2018