Blakeney v Mosman Council

The grounds for joinder 6Ultimately, two issues were identified by Mr and Mrs Simpson as being issues that they would seek to agitate in addition to those identified by the Council. First they dispute that the land identified in the development application as an unformed section of Stanton Road is, in law, a public road. If they are correct, then the development application must be refused as the owner of the land, whoever that may be, has not provided consent to the making of the development application, as is required by the provisions of the EPA Act and the Environmental Planning and Assessment Regulation 2000. Second, they contend that Aboriginal heritage has not been and is not being adequately addressed by the Council in its contentions. Such an issue is not nominated by the Council in its statement of facts and contentions. 7As to the first issue, namely the public road question, Mrs Simpson has annexed to an affidavit sworn by her a number of title searches together with a letter of advice prepared by her solicitors. That advice is to the effect that the solicitors are unable to determine who owns the unformed road and that there has not been evidence produced to them to demonstrate "formal and proper" dedication of the land as a public road. 8The second issue which Mr and Mrs Simpson seek to propound is also the subject of annexed documents to Mrs Simpson's affidavit. This evidence contains extracts from a register of Aboriginal sites maintained by the National Parks and Wildlife Service as well as extracts from an Aboriginal heritage study commissioned by the Council. The study identified Aboriginal heritage sites in the Reserve that adjoins the site of the unformed road. No such sites are identified as occurring with the unformed road. 9There are two matters of present relevance that need to be noticed. First, the Council opposes the grant of development consent sought by Mr Blakeney and actively maintains that position in the conduct of the appeal before the Court. Indeed, the Council is represented by experienced senior and junior counsel for the purpose of conducting its case. 10Second, a number of written objections have been framed by Mr and Mrs Simpson and submitted to the Council. Those objections will be in evidence before the Court in the principal proceedings. Further, Mr and Mrs Simpson are to be called (and I add, have now been called) on the first day of hearing of the principal proceedings. Their evidence will therefore be considered by the Court, along with all other evidence that is tendered in the course of the proceedings. 11Section 39A of the Court Act is in the following terms: "39A Joinder of parties in certain appeals 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." Reliance was placed by the solicitor representing Mr and Mrs Simpson only upon the first limb of the two limbs which are contained in s 39A. I am satisfied that the issues raised by Mrs Simpson and intended to be agitated by the Council will be sufficiently addressed. 12The categorisation of the land over which the driveway access is proposed as an unformed public road was initially challenged by the Council. On Friday last it withdrew that issue after consideration by the Council's legal advisors of all available evidence. Nonetheless, the Council has accepted, through its counsel, the practical onus of establishing to the Court, in its capacity as "a model litigant", that the road has been dedicated as a public road. The applicant in the proceedings, Mr Blakeney has also indicated, through his counsel, that a practical onus is accepted to establish to the Court that on the evidence to be adduced, the road has been dedicated as a public road. That evidence will be critically assessed by the Court. Moreover, the solicitor acting for Mr and Mrs Simpson has stated that all evidence upon which they would seek to rely, if joined as parties, was the same evidence to be relied upon both by the Council and Mr Blakeney. 13Further, the material tendered for the purpose of the motion amply demonstrates that Aboriginal heritage and any potential impact by the proposed driveway, if approved, upon any items of Aboriginal heritage has been considered. Not only did the relevant planning instrument require as much, but the reports to the Council when it refused the application, directed attention to a considerable volume of material that addressed that issue. The material so identified included, but extended beyond that material, which is annexed to the affidavit of Mrs Simpson. 14It was submitted on behalf of Mr and Mrs Simpson that the Court would be greatly assisted if there was a third party agitating those issues which they sought to raise, particularly that directed to the proper categorisation of the road as a public road. However, it must clearly be borne in mind that the provisions of s 39A of the Court Act are not framed so as to require that any person seeking to raise an issue to be joined as a party.

Principles and their application 15A number of decisions of this Court have considered applications of the present kind. The Court's approach was summarised in Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5 in which I said at [16]: "The caution that should be exercised before joinder in circumstances such as the present is, if I may respectfully say so, appropriately identified in the judgment of the Chief Judge of this Court in Morrison Design Partnership Pty Ltd v North Sydney Council and the Director-General of the Department of Planning [2007] NSWLEC 802; (2008) 159 LGERA 361. In particular, I refer to the observations made by his Honour as to the distinction that the legislature has drawn between development appeals involving objectors to designated development and those appeals in respect of development that are not so classified." The present appeal is in the latter category. The judgment in Freshwater continued: "Neither the power of joinder provided by s 39A nor the utilitarian application of "Double Bay Marina" participation should be seen as the provision of a plenary power to allow, in each and every circumstance, objectors to development to be joined or participate in a development appeal, with separate representation." Those observations are supported, as I have said, by a number of decisions of this Court. 16Furthermore, the fact that there are issues that an applicant for joinder wishes to raise which a respondent council did not think sufficiently important to raise does not automatically warrant an order for joinder under s 39A (The Sabian Mandaean Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94). In exercising the discretion available under s 39A, the Court has observed that a multiplicity of parties is undesirable for the efficient conduct of litigation in proceedings brought under s 97 of the EPA Act (The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205). 17Those matters are of significance in the present case. While it is not suggested for one moment that the issues sought to be raised by Mr and Mrs Simpson are unimportant, for the reasons that I have indicated, I am satisfied that they will or have been adequately addressed in the course of the conduct of this appeal. 18Those reasons are sufficient to dispose of the motion and reflect my reason for so doing on Monday last. Given the issues to be agitated, the just, quick and cheap disposition of these proceedings does not warrant and did not warrant the exercise of discretion to permit the joinder sought by Mr and Mrs Simpson.

Costs 19In his written submissions in opposing the notice of motion, Mr Blakeney sought costs if, as has happened, the notice of motion brought by Mr and Mrs Simpson is dismissed. I do not accede to that application. The issue of costs is governed by r 3.7 of the Land and Environment Court Rules 2007 that relevantly requires that in proceedings of this kind an order for costs should only be made if it is fair and reasonable so to do. Although I have not acceded to the motion for joinder, it cannot be gainsaid that the application made by Mr and Mrs Simpson was lacking in merit. 20Particularly is this the case, given that it was only on Friday last that the Council sought to withdraw, as a contention, the proper categorisation of the unformed section of Stanton Road as a public road. It seemed to me that Mr and Mrs Simpson were entitled at least to agitate that issue if not the others upon which they relied for the purpose of the argument that they sought to mount. As I have said, ultimately the question will be addressed in the course of the hearing without their intervention as parties. 21For those reasons, the notice of motion is dismissed and there is no order for costs.

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