Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council

Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313; CASES CITED: Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226; Randall v Willoughby City Council (2005) 144 LGERA 119

RITCHIES STORES PTY LIMITED Mr J A Ayling SC SOLICITORS Landerer & Company

WILLIAM JAMES LANCASTER Ms A Pearman SOLICITORS N/A LEGAL REPRESENTATIVES: BONGIORNO HAWKINS FRASSETTO & ASSOCIATES PTY LTD Mr J E Robson SC with Mr A Pickles SOLICITORS MacKenzie & Vardanega

GRIFFITH CITY COUNCIL Ms N Lowe (solicitor) SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BONGIORNO HAWKINS FRASSETTO & ASSOCIATES PTY LTD Applicant

JUDGMENT Jagot J: 1 Ritchies Stores Pty Limited makes an application for joinder pursuant to s 39A of the Land and Environment Court Act 1979 and in the alternative orders in the nature of what is known as a Double Bay Marina order pursuant to s 38(2) of that Act (see Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313). Mr William Lancaster seeks an order pursuant to s 38(2) of the Act that he be permitted to participate in these Class 1 proceedings by orders in the nature of Double Bay Marina orders and alternatively that he be joined as a party to the proceedings pursuant to s 39A.

2 The Class 1 appeal was filed in or about January of this year but I need to say something briefly about the circumstances which led to the filing of that appeal to set the context for resolution of the notices of motion.

3 The applicant for consent proposes to carry out a development comprising the construction of a supermarket with associated parking and other facilities. The Council in fact granted development consent to that development application subject to conditions. Both Ritchies Stores Pty Limited and Mr Lancaster commenced Class 4 proceedings in this Court seeking, insofar as relevant, declarations that the development consent was invalid on various grounds. The applicant for consent lodged an application for review under s 82A of the Environmental Planning and Assessment Act 1979 seeking to address some of the conditions of consent which had been raised as issues founding invalidity in the Class 4 proceedings (as well as other matters that the applicant for consent wished to address). In January of this year the Council, pursuant to the application under s 82A, redetermined the development application by way of refusal. Consequently, the Class 1 appeal, in substance, is an appeal against the Council's refusal of the development application.

4 The applicants in the Class 4 proceedings (being objectors to the proposed development) seek orders for joinder or other intervention in the proceedings in a context where the Council initially granted consent to the substance of the development (now the subject of the Class 1 proceedings) and then determined to refuse development consent when it had the s 82A application before it. In my view, this forms a background against which the application for joinder should be assessed. In saying this I do not mean to suggest in any way that there is any issue about the Council's conduct or that the Council is doing other than proceeding in this Class 1 appeal in the ordinary course as its statement of issues discloses; but I think it would be unrealistic to ignore this background which, no doubt, has contributed to these applications for joinder.

5 Under s 39A of the Land and Environment Court Act, the Court may only exercise the power to join a person as a party to these proceedings if it forms an opinion either 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 that it is in the interests of justice or the public interest that the person be joined as a party to the appeal. While s 38(2) is not similarly constrained, the types of consideration that are set out in s 39A no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order.

6 I should also say, consistent with the observation of Lloyd J in Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226, the mere fact that the Court forms an opinion within the meaning of s 39A is not sufficient. The Court retains a discretion as to whether or not an order for joinder should be made and would take into account such matters as the delay in the application, the likely strength of the issues sought to be raised and any other issue of potential prejudice in the proceedings.

7 I propose to deal first with the application by Ritchies Stores where the primary order sought is for joinder pursuant to s 39A. Both the applicant for consent and the Council oppose that application. Insofar as the Council is concerned, the joinder would involve additional time and expense because of additional witnesses, Ritchies Stores is a commercial competitor of the proposed development and, most importantly, the Council itself has raised the issue of economic impact in its statement of issues. It queried also the capacity of Ritchies Stores to raise these issues in circumstances where it said that Ritchies Stores did not have development consent for its own development. However, as Mr Ayling SC pointed out in submissions on behalf of Ritchies Stores, this does not appear be a matter of particular concern as Ritchies Stores is proposed to be a tenant of an approved development.

8 From the point of view of the applicant for consent, the main problems were that the application was premature. None of the evidence had been filed and served. Ritchies Stores made its application on the basis of an affidavit from its solicitor rather than having available expert evidence about the alleged economic impacts issues which it says it wishes to raise in the proceedings. Further, the economic issues sought to be raised by Ritchies Stores were subsumed in the Council's statement of issues. The overriding interests of justice were served by recognising that a multiplicity of parties in proceedings would undermine the efficient conduct of this litigation, particualry in circumstances where the Council was the proper contradictor for the issues.

9 I accept that there are concerns about a multiplicity of parties being involved in proceedings. It is not the case that s 39A or indeed s 38(2) of the Land and Environment Court Act were intended to encourage a multiplicity of parties in circumstances where the Court could be satisfied that the relevant issues would otherwise be appropriately and sufficiently ventilated in proceedings between the applicant for consent and the relevant consent authority. Accordingly, it is necessary to weigh up this consideration about multiple parties, although it seems to me that this concern is more relevant in the second step under s 39A, namely the exercise of discretion (rather than the first step, at least insofar as subs (a) is concerned, about whether the person can raise an issue that should be considered but would not be likely to be sufficiently addressed).

10 Having regard to the affidavit of Mr Farland sworn 22 March 2007, it is my opinion that Ritchies Stores seeks to raise at least two issues in the Class 1 proceedings that are not likely to be sufficiently addressed if Ritchies Stores were not joined as a party to the proceedings. Those issues are first the actual economic impact on Ritchies Stores and, secondly, the correct approach to the extent of s 79C(1)(b) of the EPA Act by reference to the observations of Basten JA in Randall v Willoughby City Council (2005) 14 LGERA 119 at [45]. I accept the submissions made by Mr Ayling SC that Ritchies Stores is really the only person of capable of ensuring these issues would be sufficiently addressed in the proceedings because of the actual character of the issues and the Council's statement of issues makes it clear that its concern is inadequate information in respect of likely economic impact.

11 Therefore, I have formed the opinion in s 39A(a) with respect to the application by Ritchies Stores. In terms of discretionary considerations, I do take into account the general undesirability of having a multiplicity of parties to proceedings, but against that must be weighed: o the context in which the application is brought by Ritchies Stores to which I have already referred; o the limited nature of the issue on which Ritchies Stores seeks to call evidence and be heard; o the capacity through case management to ensure that there is not inappropriate duplication between Ritchies Stores' evidence and that of the Council insofar as the Council's evidence goes; and o the fact that the application has been brought in a timely manner to enable those case management procedures to be effectively implemented.

12 Taking into account all those matters, I am satisfied that it is an appropriate exercise of discretion for Ritchies Stores to be joined as a party to these proceedings pursuant to s 39A and that the reasons put forward by both the Council and the applicant for consent against the joinder are not sufficiently powerful to lead to a contrary view. Accordingly, I am going to make an order that Ritchies Stores Pty Limited be joined as a party to these proceedings.

13 I will now deal with the application by Mr Lancaster. As I said, Mr Lancaster's primary application was for a form of Double Bay Marina order pursuant to s 38(2) of the Act with an alternative claim to be joined pursuant to s 39A. The application by Mr Lancaster is somewhat more difficult to resolve because the submissions made by Mr Robson on behalf of the applicant for consent (particularly that it can be reasonably expected that Mr Lancaster will be called as an objector in the Council's case and accordingly will have a full opportunity to place his concerns about the proposed development before the Court) have some force.

14 On the other hand, I need to take into account the material that Mr Lancaster has put forward by way of affidavit which identifies a series of issues which, in my view, are not sufficiently raised in the Council's statement of issues to satisfy me that these issues would be sufficiently addressed absent some special order being made for Mr Lancaster's involvement in the proceedings. In particular I have in mind the issues about the size of the site and the consequences for the relationship between the proposed development and Wakaden Street, being those matters set out in paragraphs 17.2.4 and 17.2.5 of Mr Lancaster's affidavit filed on 23 March 2007, as well as the particular issues set out in paragraphs 18.1, 18.2, 19.1 and 22.1 of that affidavit. I do not think those issues are wholly subsumed in the Council's statement of issues.

15 As I have said while this is a more difficult application to resolve, there are matters where I consider Mr Lancaster's particular issues will not be likely to be sufficiently addressed. I am concerned about the multiplicity of parties in these proceedings. That concern must be weighed against the other material in Mr Lancaster's affidavit - namely: o his relative proximity to the site, as he lives at 99 Binya Street which is only some 40 metres from the subject site; o his conduct, by which he has exhibited a particular interest in this development application including by arranging public meetings with respect to the development application; and o his intention to ensure that any involvement he has in the proceedings does not lead to unnecessary duplication).

16 The particularly unusual background to these proceedings is also relevant (the two sets of Class 4 proceedings and the fact that the development application was refused on s 82A review after having been approved), as is the fact that the application has been made in a timely manner and that case management procedures are available. In all of the circumstances, I am minded to grant William James Lancaster leave to lead evidence, cross-examine witnesses and make submissions pursuant to s 38(2) of the Land and Environment Court Act. ****************************

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