Australian Turf Club Limited v Liverpool City Council

Judgment 1SENIOR COMMISSIONER: In each of these proceedings, an application is made on behalf of the proposed intervener for joinder pursuant to s 39A of the Land and Environment Court Act 1979 (the Act), and, in the alternative if joinder were not to be granted pursuant to that provision, for more limited participation pursuant to s 38(2) of the Act, known as a Double Bay Marina joinder - that being the process derived from Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. 2The applications for joinder are made on the basis that the applicant, Mr Poletti, wishes to raise the alleged economic impact of the proposal by the Australian Turf Club to be permitted to continue to operate two horse stabling facilities at Warwick Farm Racecourse - they being horse stabling facilities originally constructed to enable the removal of horses from Randwick Racecourse and its environs as part of the World Youth Day celebrations of the Roman Catholic Church. 3That removal and the erection of the stables was permitted by special legislation passed by the New South Wales Parliament that permitted the erection and operation of those for a specific period of time, that time being now long past. 4The Australian Turf Club has made an application to regularise what has been the continuing operation of those facilities. The appeal against the refusal by Liverpool City Council (the council) to support that continued operation has given rise to the two separate sets of proceedings, one for each of the stabling facilities. 5The process, as is conventionally undertaken by the Court in such a matter, commenced through a conciliation conference pursuant to s 34 of the Act with that conciliation conference being conducted by me, and permitted the parties to address the contentions that were raised by the council in its Statements of Facts and Contentions - those Statements of Facts and Contentions have been tendered on the two motions, the evidence in each proceeding being taken to be evidence in the other to the extent relevant. 6In matter 10790 of 2013, the council raised two contentions, the first being that there was inadequate documentation (this being the failure to provide an odour assessment report and an acoustic assessment report or an environmental management plan). The second was that the proposed development was not demonstrated not to result in an adverse economic impact on existing stabling operations within the Warwick Farm precinct. A more confined Statement of Facts and Contentions was pressed in matter 10791 of 2013, merely an adoption of the same economic impact matter that was pressed in the other proceedings. 7At the commencement of the conciliation conference and during the course of it, council's representative on that occasion, Mr Couch, indicated that those contentions were no longer pressed. The contention with respect to inadequate information was no longer pressed on the basis that such information had been provided to the satisfaction of the council and that on the other matter the council had considered the matter and no longer pressed the contention. 8Mr Poletti, the applicant for joinder in each of the matters, had been granted leave by consent to attend, accompanied by his legal representative, the conciliation conference (subject to a confidentiality agreement that he and his legal representative gave to the Court with respect to that participation). 9During the commencement of the conciliation conference (which took place on site at Warwick Farm Racecourse), I had the opportunity to hear submissions from a range of persons who objected to the consent being granted. Whether or not the notes of that will become part of the evidence in determining the substantive proceedings is a matter that awaits consideration. The inspection also included an inspection of the exterior of the two stabling facilities and of the interior of the stabling facilities located on the Warwick Farm Racecourse land proper. 10The application for intervention was initially supported by an affidavit of an employed solicitor of the solicitor for Mr Poletti, Ms Slimnikanovski. That affidavit which has been read on this motion. At para 43, the deponent set out what she understood to be Mr Poletti's main areas of concern relating to the proposed development. They are listed as follows: