Ace Gutters Pty Limited v Hurstville City Council

Land and Environment Court (NSW)|2008-05-29|Before: Mr J, Mr P, Preston CJ

The applicant's submissions 13 The applicant also submits that BlueScope's joinder would not be appropriate, especially as the council has taken an expert and rigorous approach to the case and has not abandoned its role as a contradictor. Any outstanding issues must be seen in the light of BlueScope's involvement thus far including: its participation has an active objector; it's provision of expert material and close consideration of the development application; and a request for additional detailed material associated with the application. The applicant has comprehensively responded to the request for additional material although BlueScope now seeks further particulars. The applicant's essential reasoning against joinder involves: o The council is an experienced consent authority properly raising contentions (and issues) it believes appropriate. o BlueScope's concerns are comprised within the council's contentions and concerns and within the significant expert evidence now marshalled. o The issues identified by the council are able, almost without exception to be dealt with by council and if required the Court.

14 The applicant submits that the purpose of s 39A is not to create multiple parties in proceedings which are otherwise subject of proper control and which afford an opportunity for objectors' concerns to be taken into account. The creation of further parties will prolong the case, contrary to the intent of the legislation, which, as referred to by the council, requires the just and efficient determination of matters. The court is not the venue for the ventilation of commercial disputes between competitors. Also, the conciliation conference process will facilitate the appropriate resolution of all of the evidence including any objections (expert or otherwise) and the issues.

Court's consideration and conclusions 15 In my opinion it is unnecessary in determining the question of joinder to decide whether or not this development proposal is prohibited or comprises integrated development. These questions have been squarely raised and must be resolved. The council (and the Court on appeal) has the responsibility of ensuring that the proposal is permissible and in this case must ensure that the development is light industry, otherwise it is prohibited. In my opinion this issue can be resolved as part of the appeal process that is now underway.

16 The permissibility question is a mixed question of fact and law; for an industry to be defined as light industry and thus permissible it must not interfere unreasonably with the amenity of the neighbourhood. The amenity of the neighbourhood has been a matter of concern to the council from the beginning. Once the amenity question is decided so too will the permissibility question be decided.

17 As for the integrated development question, this is plainly one that needs to be resolved particularly as a licence for the operation of the paint line may be required pursuant to the Protection of the Environment Operations Act 1997. Whilst this question was not raised as one of the council's original contentions the council now agrees that it needs to be resolved.

18 In relation to any legal question associated with the development application, should the parties come to an agreement pursuant to s 34(3) or consent to the Commissioner disposing of the proceedings pursuant to s 34(4)(b) of the Court's Act, the Court in the proper exercise of its functions must, before disposing of the proceedings, in accordance with s 39(4) have regard to any relevant act or instrument made under any such act. It will need to be demonstrated that any relevant statutory provisions have been complied with and I accept that the council can and will attend to these matters. In these circumstances I do not accept that the questions of prohibition and integrated development require joinder for their proper resolution.

19 In the Statement of Facts and Contentions the council identifies two issues that are in dispute: the classification of the development; and the amenity impacts of the development. These issues encompass the definition of light industry and impacts on the amenity of the surrounding neighbourhood through traffic, air quality, noise and other matters set out in letters of objection. In this context BlueScope directed the court's attention to the council's statement that: If the paint line is operated in accordance with the recommendations as listed in the reports in response to BlueScope Steel's request for particulars and council's draft conditions of consent, then the amenity impacts of the development may be acceptable . (My emphasis).

20 In essence BlueScope, submits that this statement indicates that the council will not be a true contradictor especially in relation to amenity impacts. The council rejects this submission, contending that the statement leaves the question open for resolution and the issues raised in it sufficiently encompass the matters of concern to BlueScope. I agree and am satisfied that these matters are likely to be sufficiently addressed if BlueScope is not joined as a party to the proceedings. The issues will be addressed by council reports, submissions and expert reports including those prepared by on behalf of BlueScope and these materials will be utilised in the conciliation conference and by the Court should it be required to dispose of the proceedings pursuant to s 34(4)(b) of the Court's Act. In this regard I note that the parties have not objected to BlueScope's attending the conciliation conference when it resumes.

21 If BlueScope wishes to provide meaningful assistance, relying on its own knowledge of this kind of plant and its operation, and engage consultants to prepare reports of an expert nature (any expert reports must, of course comply with the relevantly applicable Uniform Civil Procedure rules) there is no reason why this cannot be done. Such materials can be provided, as submissions to the proposal. The council does not oppose this approach and on this basis I see no reason why BlueScope's concerns cannot be effectively taken into account.

22 By so doing this will, in my opinion, enable the matters of concern to BlueScope to be sufficiently addressed, and will assist in the consideration of all of the issues at the continuing conciliation conference and if necessary at the subsequent hearing should this be required.

23 I have thus reached the conclusion that BlueScope should not be joined in this appeal. In reaching this conclusion I have taken into account that the issues identified by the council may not entirely encompass those matters raised by BlueScope. However taking into account the opportunities that are available for BlueScope to express its concerns, the fact that it is not directly affected and giving some weight to the council's opposition to joinder and its insistence that it will press all of the relevant issues, any omission does not attract sufficient significance to cause me to exercise my discretion under s 39A in favour of BlueScope.

24 Whilst BlueScope is to be commended for its public spirit in seeking to ensure that this application is appropriately dealt with, this is not enough to warrant joinder and I thus reject the application that they be joined as second respondent to these proceedings.

      T A Bly
      Commissioner of the Court
      ljr

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.

CITATION : Ace Gutters Pty Limited v Hurstville City Council [2008] NSWLEC 1204

CASES CITED: Morrison Design Partnership Pty Limited v North Sydney Council and Director General of the Department of Planning [2007] NSWLEC 802

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (2)