The judgment in Gales-Kingscliff Pty Ltd v Tweed Shire Council (No. 2) [2007] NSWLEC 817 underscores the critical need for detailed particulars in Statements of Fact and Contentions.

What are “particulars”?

Particulars in Statements of Fact and Contentions (SOFACs) are descriptions that clearly outline the factual and legal bases for each issue (or “contention”) in a legal proceeding. Particulars ensure clarity and precision, enabling all parties to understand the issues at hand. They are essential for identifying the specific points of dispute and ensuring fair and efficient case management. Properly detailed particulars help avoid unnecessary delays and additional costs, facilitating a just, quick, and cheap resolution of proceedings.

Background of the case

Gales-Kingscliff Pty Ltd lodged a development application with Council to use the land for livestock grazing. Council initially refused the application, citing the proposed development as prohibited. However, after the appeal was lodged and the SOFAC had been filed, Council sought to amend its SOFAC to include new contentions related to the vegetation on the land being an endangered ecological community.

The Court’s emphasis on particulars in SOFACs

The judgment was delivered by Chief Judge Preston. In paragraphs [19], [45], and [46] of the judgment, Chief Judge Preston highlighted the necessity for a SOFAC to connect facts with issues in dispute. The Court emphasised that the failure to include sufficient particulars in a SOFAC can be a critical oversight, and by not doing so it can deprive an applicant of the opportunity to address this contention adequately.

The Court stated that the usual way to remedy such an oversight is for a council to seek permission from the Court to amend its SSOFAC. However, in this particular case, the Court determined that allowing the amendment at a late stage (following the commencement of the hearing) would not be fair or conducive to proper case management. It was noted that the introduction of new issues after the hearing commenced would lead to substantial additional evidence, time, and cost, which would be disproportionate to the nature of the development proposed.

Requirements in the Practice Note for Class 1 Development Appeals

As set out in the Land and Environment Court Practice Note for Class 1 Development Appeals, particularising contentions in a SOFAC involves several key elements:

1. Clarity and Brevity: The SOFAC should be as brief as reasonably possible while providing clear and detailed information about the facts and contentions.
2. Division into Facts and Contentions: The statement should be divided into two parts – Part A (Facts) and Part B (Contentions). Part A should detail the proposal, site, locality, statutory controls, and actions of the respondent consent authority without including matters of opinion. Part B should identify each fact, matter, and circumstance that requires or should cause the Court to refuse the application or impose certain conditions.
3. Focus on Genuine Disputes: The contentions should focus on issues genuinely in dispute and should have a reasonable basis. They should be presented clearly, succinctly, and without repetition.
4. Identification of Non-Compliance: Where a proposal does not comply with provisions of an environmental planning instrument or development control plan, the specific standard or provision breached should be identified, and the extent of non-compliance should be quantified if necessary.

Key takeaways

1. Early Identification of Issues: local councils must identify and articulate all relevant issues and contentions at the outset. This includes specifying any environmental or statutory concerns that may impact the development application, and the extent of non-compliance.
2. Detailed and Clear SOFACs: The SOFAC should comprehensively outline all factual and legal bases for the contentions, ensuring that each contention is supported by relevant facts and statutory provisions.
3. Timeliness and Completeness: Amendments to the SOFAC should be avoided unless absolutely necessary. Any new issues should be raised as early as possible to allow the other party to respond adequately.
4. Case Management Principles: Adherence to the principles of just, quick, and cheap resolution is crucial to the efficient operation of the Court. It is important to avoid actions that may lead to unnecessary delays or increased costs.

Further reading

You can obtain a copy of the judgment and the Practice Note for Class 1 Development Appeals below.