Boral Resources (NSW) Pty Ltd v Camden Council (No 2) [2019] NSWLEC 1070

Land and Environment Court New South Wales

Medium Neutral Citation: Boral Resources (NSW) Pty Ltd v Camden Council (No 2) [2019] NSWLEC 1070 Hearing dates: 14 February 2019 Date of orders: 26 February 2019 Decision date: 26 February 2019 Jurisdiction: Class 1 Before: Maston AC Decision: See orders at [21] below Catchwords: PROCEDURE: application to amend conditions of development consent pursuant to slip rule – orders amended Legislation Cited: Civil Procedure Act 2005 s 56 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005 rr 36.16(3B), 36.17 Cases Cited: Newmont Yandal Operations Pty Ltd v The J Aron Corporation [2007] NSWCA 195; (2007) 70 NSWLR 411 (C.A.) Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 7) [2013] NSWLEC 157 Category: Procedural and other rulings Parties: Boral Resources (NSW) Pty Ltd (Applicant) Camden Council (Respondent) Representation: Counsel: F Berglund (Applicant)

Solicitors: MinterEllison (Applicant) L Raffaele, Bartier Perry (Respondent) File Number(s): 2017/256851 Publication restriction: No

Judgment 1. COMMISSIONER: Before the Court on 14 February 2019 was an application by way of Notice of Motion filed 18 December 2018 by the Applicant in which an order was sought with respect to my judgment in the substantive proceedings delivered on 5 December 2018 (Boral Resources (NSW) Pty Ltd v Camden Council [2018] NSWLEC 1623). The Applicant sought an order that the decision published on 5 December 2018 be varied to provide that the hours of operation listed at Condition 6(7) at Annexure A of the decision are 7am to 10pm Monday to Saturday and 8am to 10pm on Sundays and public holidays. 2. This referred to one of the conditions imposed on the grant of development consent for a mobile concrete batching plant to be erected on part of the land known as 60 Greendale Road, Bringelly within Lot 100 DP 1203966. 3. The Notice of Motion was supported by an affidavit sworn by Matthew Cole, a solicitor for the Applicant on 18 December 2018. Ms F Berglund of counsel appeared for the Applicant and Ms Raffaele, solicitor, appeared for Camden Council. There was no objection raised by Ms Raffaele to the affidavit of Mr Cole or to the application made by the Applicant. 4. During the hearing of the principal proceedings, several issues arose as to the particular draft conditions of consent including conditions with respect to the hours of operation of the business of the mobile concrete batching plant. 5. At the end of the last day of the hearing of the principal proceedings (23 August 2018), there was debate between Mr A Pickles SC for the Council and Mr C McEwen SC for the Applicant, as to several aspects of the conditions relating to noise generated by the operations to be carried out on the site and mitigation of noise. By the end of the argument on that day, there was no complete agreement between senior counsel as to these matters. 6. Mr Pickles SC stated: "my instructing solicitor will submit by e-Court, if that's convenient, rather than this marked up version of Exhibit K, a final version of the Council's conditions of consent that reflect what is in Exhibit K, handwritten." 7. On 27 August 2018, Messrs Bartier Perry solicitors for the Council sent an email to the Court referring to the hearing on 22-23 August 2018, attaching "the Council's final conditions of consent" and confirming that only two conditions at that time remained in dispute. One of these was Condition 6(7) – the permitted hours of operation of the business. 8. The email concluded: "In relation to [Condition 6(7)], the Applicant [presses proposed] alternate hours of operation. [The] alternate hours [of operation] and proposed changes to the conditions are detailed in the comments column of the attached document." 1. On 28 & 29 November 2018, I caused messages to be sent to the parties in which I requested "the Word copy of the conditions of consent (Exhibit K)". 2. On the hearing of the Notice of Motion, Ms Berglund noted that the comment in respect of Condition 6(7) stated that the Applicant pressed for hours of operation being Monday to Saturday 7am to 10pm and Sunday and public holidays 8am to 10pm. Ms Berglund then referred to Condition 28 – Noise Limits which was not in dispute. It states: "Noise generated at the premises must not exceed the noise limits in the following table at any of the receiver locations specified …" 3. Ms Berglund noted that Condition 28 has a noise limit from 7am to 6pm and another noise limit from 6pm to 10pm respectively called the "day" and "evening" hours. She also noted Condition 27 referring to noise mitigation matters and to the fact that in my judgment I preferred the evidence of the acoustic engineer, Mr Cooper who found the hours of 7am to 10pm and work on Sunday acceptable when the proposed noise mitigation measures were put in place. She also referred to the decision of Pepper J in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 7) [2013] NSWLEC 157 (Foxman) and the cases at [22] and following referred to by Pepper J in that litigation as a summary of the principles relevant to the rule 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR) (the "slip rule") and submitted that in the present case there had been an error arising from an accidental omission, that is, a mistake in which no real difference of opinion can exist and no further exercise of the Court's discretion is required and does not involve making substantive alterations to determine points not argued, considered or decided at the hearing: see [23]. 4. Reference was also made by Pepper J in Foxman to Newmont Yandal Operations Pty Ltd v The J Aron Corporation [2007] NSWCA 195; (2007) 70 NSWLR 411 (C.A.) to the effect of "the overriding purpose rule" in s 56 of the Civil Procedure Act 2005 and its effect on the slip rule and that the rule may be applied to carry into effect the actual intention of the judge making the order to ensure it does not have a consequence which the judge clearly intended to avoid or ameliorate such as an unforseen and unintended legal consequence. The relevant intention is the objective intention of the decision-maker at the time the orders were made. 5. I indicated that my subjective intention was to ensure when drafting the conditions of consent that there was a consistency with Conditions 6(28) and 6(7), which listed the maximum noise at particular hours on specified days of the week as determined by the acoustic experts at each of the receiver locations. 6. In the part of my judgment dealing with acoustic matters I stated that I would deal with permitted hours of operation later in the judgment. 7. The omission of a condition permitting development in the "evening" hours when elaborate provision was made in Condition 6(28) to deal with the amenity of the properties at the receiver locations in those hours was unintended. 8. It was not and could not have been the intention of the Court to omit to deal with the identification of the evening hours of operation of the development in Condition 6(7). 9. In my opinion, the error of omitting the list of the evening hours of operation is in this case a suitable one to be corrected by UCPR r 36.17. 10. Ms Berglund submitted that the slip rule clearly applied in this case and noted that there was no opposition from the Council to the rule being invoked. In addition, she noted that Division 4 Part 36.16(3B) of the UCPR gives the Court power to vary a judgment or order within 14 days after a motion for setting aside or varying it is filed as if the judgment or order had not been entered. 11. Ms Berglund noted that the present Notice of Motion was filed within 14 days of the judgment and that in those circumstances, the power under r 36.16(3B) is also available to the Court if necessary. 12. At the conclusion of the hearing of the application in the Notice of Motion, I indicated that I was satisfied that an order should be made in this case under UCPR r 36.17. I therefore directed the Applicant to deliver to the Court a draft order granting the relief sought in the Notice of Motion.