Azzure-Blacktown Pty Limited v Blacktown City Council

KEY ISSUES: PRACTICE AND PROCEDURE :- joinder of party - non-designated development - discretionary statutory power to order joinder - issue related to internal parking and internal traffic circulation within the development - relevant considerations

LEGISLATION CITED: Land and Environment Court Act 1979 s 39A Civil Procedure Act 2005 s 62(3)(b)

Bongiorno Hawkins Frassetto and Associates Pty Limited v Griffith City Council [2007] NSWLEC 205 CASES CITED: Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293 Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361

APPLICANT: S B Nash (solicitor) SOLICITORS: Blake Dawson

RESPONDENT: LEGAL REPRESENTATIVES: R E Dawes (solicitor) SOICITORS: Lindsay Taylor Lawyers

APPLICANTS ON JOINDER APPLICATION: C C Gough (solicitor) SOLICITORS: Storey & Gough

JUDGMENT:

• 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

AZZURE-BLACKTOWN PTY LIMITED V BLACKTOWN CITY COUNCIL [2009] NSWLEC 63

1 HIS HONOUR: On 4 June 2008 the applicant, Azzure-Blacktown Pty Limited, lodged a development application with Blacktown City Council for a development at Nos. 132-136 Sunnyholt Road, Blacktown. The proposed development is a mixed use development including a service station and convenience store building, a car wash facility, three light industrial units and associated facilities. 2 The development application was publicly notified between 2 July 2008 and 16 July 2008. Two written objections were received - one from Sicily Island Pty Limited, which operates a service station at No. 48 Sunnyholt Road, and the other objection from BP Blacktown Pty Limited, which operates a service station at No. 162 Sunnyholt Road. 3 On 14 January 2009, the applicant for development consent lodged an appeal in the court in class 1 of the court's jurisdiction against the deemed refusal of the development application. 4 In February 2009, the council's professional staff recommended that the development application be approved subject to conditions. 5 On 17 March 2009, the two objectors to whom I have referred caused to be forwarded to the council an expert report of D Thompson relating to traffic and car parking matters. 6 On 18 March 2009, the council formally resolved to refuse to grant development consent to the development application on traffic safety grounds. 7 On 20 March 2009, the matter was set down for hearing on 30 April 2009. 8 On 3 April 2009, a notice of motion was brought on behalf of the two objectors, Sicily Island Pty Limited and BP Blacktown Pty Limited, seeking joinder under s 39A of the Land and Environment Court Act 1979. That motion is now before me. 9 The directions for the preparation of the trial include that the parties' respective traffic experts produce a joint report on 15 April 2009 and, as I have noted, the hearing is on 30 April 2009. 10 Mr C C Gough, appearing for the applicant for joinder, states that the objectors wish to be joined as parties to the proceedings to raise two issues which have not been raised in the statement of contentions filed in the proceedings. The two issues relate to an alleged insufficiency of on-site car parking and alleged deficiencies in internal circulation within the development site. 11 Section 39A of the Land and Environment Court Act is a facultative provision which is in the following terms: On an appeal under section 96(6), 96AA(3), 96A(5), 97 or 98 of the Environmental Planning and Assessment Act 1979 , the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion:

(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that: (i) it is in the interests of justice, or (ii) it is in the public interest that the person be joined as a party to the appeal. 12 The power under s 39A is discretionary as appears from the use of the word "may" in the section. The fact that there are issues that the applicants for joinder wish to raise which the council did not think to be sufficiently important does not automatically warrant the application of s 39A, see Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293 per Pain J at [36]. Moreover, it is not sufficient merely to establish the matters described in sub-ss (a) and (b) of s 39A. The court must consider the nature of the issues which the applicants for joinder seek to raise in the context of the overriding objective of the quick, just and cheap resolution of the proceedings. 13 The Environmental Planning and Assessment Act draws a distinction between designated development and other development. The role of s 39A of the Act must be seen with this distinction in mind. In this respect I can do no better than refer to the judgment of Preston J in Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361 at [42] and [43]: I note at the outset that s 39A is facultative in the sense of enabling the court to join a person to proceedings under the Environmental Planning and Assessment Act of the types listed in s 39A of the Land and Environment Court Act who would not otherwise have a right to be a party to such proceedings. Under the Environmental Planning and Assessment Act, persons who object to development proposed in a development application or to a modification of a development consent have no right to be joined as a party to proceedings unless the development is classified as designated development. Objectors to development applications for designated development do have a right of appeal under s 98(1) of the Environmental Planning and Assessment Act and have a right to be joined to an appeal in respect of such development by the applicant for development consent under s 97(4). This is relevant to note because the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation including the right to be a party to an appeal to the court for the different types of development. This needs to be kept in mind when considering exercising the power under s 39A. The power under s 39A is not intended to be a plenary power to allow in each and every circumstance objectors to non-designated development to become a party to appeals under ss 96, 96AA, 96A and s 97 by dissatisfied applicant for or holders of development consent.

14 The applicants on the present motion have been given the opportunity to express in writing their concerns to the council. They will have, I would expect, a similar opportunity to do the same orally before the commissioner. 15 In Bongiorno Hawkins Frassetto & Associates Pty Limited v Griffith City Council [2007] NSWLEC 205, Jagot J referred to the undesirability of having a multiplicity of parties to proceedings. To this observation I might add the undesirability of having a multiplicity of expert witnesses. A multiplicity of parties and a multiplicity of expert witnesses would undermine the conduct of litigation. It would also undermine the practice of the court, which is to limit the number of expert witnesses on any issue: see s 62(3)(b) of the Civil Procedure Act 2005. 16 Having regard to the overriding objective of the quick, just and cheap resolution of the proceedings, I am not persuaded that an order for joinder should be made in the present case. As I have said, nevertheless the council may at the hearing call the representatives of the applicants for joinder as objectors who may then raise their concerns regarding the proposed development. 17 Although the applicants for joinder in the present case are trade competitors of the applicant for development consent, their objections relate only to the internal parking and internal traffic circulation within the development site. These are matters which are properly those of the applicant for development consent and the council. They clearly have no impact on the applicants for joinder or on their amenity. The applicants for joinder are, in effect, officious bystanders who happen to be trade competitors of the applicant for development consent and with no legitimate interest in the internal activities on the development site. 18 In these circumstances the notice of motion for joinder is refused with costs. The exhibits may be returned. I hereby certify that the preceding 18 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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