Land and Environment Court New South Wales

• Medium Neutral Citation: Friends of Tumblebee Incorporated v ATB Morton Pty Limited [2014] NSWLEC 127
• Hearing dates: 20 August 2014
• Decision date: 20 August 2014
• Jurisdiction: Class 4
• Before: Pepper J

Decision

Leave granted to file the further amended summons. Costs reserved.

• Catchwords: PRACTICE AND PROCEDURE: amendment of originating process - whether leave should be granted to amend summons - application allowed - whether applicant to pay the costs of the application - whether proceedings are public interest litigation - costs reserved.
• Legislation Cited: Civil Procedure Act 2005, ss 56-60, 64; Environmental Planning and Assessment Act 1979, ss 5A(2)(d), 78A(8)(b); Threatened Species Conservation Act 1995, Sch 1A; Land and Environment Court Rules 2007, r 4.2(1)
• Category: Interlocutory applications
• Parties: Friends of Tumblebee Incorporated (Applicant); ATB Morton Pty Limited (First Respondent); Cessnock City Council (Second Respondent)
• Representation: Mr J Lazarus with Ms J Walker (Applicant); Ms H Irish (First Respondent); Submitting Appearance (Second Respondent); Environmental Defender's Office NSW (Applicant); ATB Morton Pty Limited (First Respondent); Marsdens Law Group (Second Respondent)
• File Number(s): 40027 of 2014

EX TEMPORE Judgment

The Applicant Seeks Leave to Amend its Amended Summons

1 This is an oral application by the applicant, Friends of Tumblebee Incorporated ("Tumblebee"), to further amend its amended summons filed on 16 May 2014. The application is opposed by the first respondent, ATB Morton Pty Limited ("ATB"). Cessnock City Council ("the council") has filed a submitting appearance in these proceedings.

2 The proposed alterations to the amended summons are to paragraphs 4 and 6 as follows (the changes are underlined):

4 The Proposal is likely to significantly affect the Regent Honeyeater and/or its habitat, therefore the DA must be accompanied by a Species Impact Statement (SIS) prepared in accordance with Division 2 of Part 6 of the TSC Act, pursuant to s78A(8) of the EPA Act.

...

6 The Consent involved a jurisdictional error, because the Proposal is likely to significantly affect the Regent Honeyeater and/or its habitat and the DA was not accompanied by a SIS at the time of the Consent.

3 The necessity for the amendment is, Tumblebee submits, because if these words are not included in the amended summons, s 5A(2)(d) of the Environmental Planning and Assessment Act 1979 ("the EPAA") may not be relevant in its application to the proceedings, if it is construed as dealing only with "the habitat of a threatened species", rather than including both the habitat and the species itself.

4 Section 5A(2)(d) states that:

(2) The following factors must be taken into account in making a determination under this section:

...

(d) in relation to the habitat of a threatened species, population or ecological community:

(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,

5 This is relevant because this case concerns a challenge to the council's determination of a development application, lodged by ATB, on 23 October 2013. The development consent is for the construction of a steel fabrication workshop and distribution facility and associated infrastructure in Weston, New South Wales. The proposal includes the clearing of approximately 3.2ha of habitat for the Regent Honeyeater, which is listed as a critically endangered species under Sch 1A of the Threatened Species Conservation Act 1995.

6 The development application was not accompanied by a species impact statement which Tumblebee claims is required pursuant to s 78A(8)(b) of the EPAA. That provision provides as follows:

(8) A development application (other than an application in respect of State significant development) must be accompanied by:

...

(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats-a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

7 It is Tumblebee's case that the development is likely to significantly affect the Regent Honeyeater and its habitat, and therefore, the development application ought to have been accompanied by a species impact statement. Because at the time the council purported to determine the development application there was no species impact statement, the determination is invalid.

8 There does not appear to be any serious dispute between the parties that encompassed within the asserted likely effect that the development would have on the Regent Honeyeater, is a significant impact on both the species and its habitat, insofar as any changes to the habitat of the Regent Honeyeater would also be likely to have a significant effect on the Regent Honeyeater itself. This assertion has been met in the ecological evidence relied upon by the parties (Dr Stephen Debus, on behalf of Tumblebee, and Mr Craig Anderson, on behalf of ATB).

The Amendment is Allowed

9 ATB could not point to any evidential prejudice it would suffer if the amendment were allowed. Rather, it argued that it would lose an opportunity to file an amended response to the proposed further amended summons.

10 This perceived prejudice can, however, be easily remedied by the Court granting leave (which it will do) to ATB to file an appropriate amended response to the proposed further amended summons. The asserted prejudice is therefore, in my opinion, entirely without substance.

11 In respect of the delay by Tumblebee in bringing the application, counsel for Tumblebee, Mr Jason Lazarus, frankly conceded that the tardiness of the amendment was occasioned by the fact that it was not until shortly before the commencement of the hearing that the potential lacuna contained in the originating process was discovered by him. I accept this explanation.

12 It follows that when regard is had to the matters contained in ss 56-60 of the Civil Procedure Act 2005 ("the CPA"), and in particular, s 64 of that Act concerning the amendment of documents, allowing the proposed amendment facilitates the overriding purpose of the CPA and facilitates the just, quick and cheap resolution of the real issues in the proceedings (see s 56 of the CPA).

Costs

13 ATB sought its costs of the application. In doing so, it sought not only its costs thrown away occasioned by the amendment (the conventional costs order made in such applications), but moreover, all of its costs to date responding to the amended summons.

14 However, as Tumblebee correctly submitted, the Court must have regard to r 4.2(1) of the Land and Environment Court Rules 2007 in respect of any proposed costs order. That rule provides as follows:

4.2 Proceedings brought in the public interest

(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

15 Tumblebee foreshadowed that it would, in due course, make a submission that these proceedings have been brought in the public interest.

16 Assuming that such an application will eventuate, the operation of r 4.2 is thereby enlivened, displacing the orthodox exercise of the Court's discretion in respect of an order for costs consequent upon a successful amendment application.

17 At this early juncture in the proceedings, with the hearing not yet finalised, it is inappropriate that Tumblebee's claim that these proceedings have been brought in the public interest be fully ventilated or determined. Accordingly, the most appropriate order is that the costs of the adjournment application be reserved.

Orders

18 The orders of the Court are therefore as follows:

(1) leave is granted to the applicant to file in Court its further amended summons dated 20 August 2014;

(2) leave is granted to the first respondent to file and serve by 4pm on 21 August 2014, an amended response to the further amended summons; and

(3) the question of the payment of the costs of, and associated with, the application to amend is reserved.

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Decision last updated: 25 August 2014