Brett Stephen Lord and Marcus William Ayres v Minister for Planning and Infrastructure

Judgment 1SENIOR COMMISSIONER: In matter 13/10648 the appeal that is before the Court concerns a project concept plan for a proposed major residential development on the western side of the northern railway line shortly to the north of Pymble station. 2Matter 13/10843 is the more detailed stage 1 project application for which proceedings have been commenced. Both applications are matters that were dealt with under the now repealed pt 3A of the Environmental Planning and Assessment Act 1979. Both were considered by the Planning Assessment Commission as the delegate for the Minister for Planning and Infrastructure and refused, despite recommendations by the Director-General, that the project be approved. The substantive applicant has proceeded in the Court against those refusals and the Minister has become the contradictor on behalf of the Minister's delegate. 3Kuringgai Council (the Council), within whose local government area the proposed development is located, seeks to be a party to each of the proceedings and applies for joinder on two bases (in the alternative). 4The primary preferred position is to be joined pursuant to pt 6, r 24(1) of the Uniform Civil Procedure Rules 2005 or, in the alternative, seeks what has become to be known as a Double Bay Marina order, as a consequence of the decision of Cripps J in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. The Application for joinder is opposed by the project proponent but is supported by the Minister. 5It falls for me to determine, first, if the Council should be joined pursuant to the Uniform Civil Procedure Rules and then, if I do not consider such joinder to be appropriate, to consider whether a Double Bay Marina order should be made. Although there are two sets of proceedings, there is no suggestion by either party presently substantively engaged in the proceedings (nor by the applicant for joinder) that the issues to be considered by me are not relevant to both proceedings and that there is not suggestion that there would be any useful basis in granting joinder in one but not in the other. 6Given that it is my assumption, I think, reasonably, that evidence in one set of proceedings will be evidence in the other to the extent relevant and necessary and that submissions in one will be submissions in the other to the extent relevant and necessary, as it is presently intended at least as I apprehend it, that the proceedings will continue to travel together and will be heard in one set of proceedings. The Council, in its application for joinder, effectively says to me that its joinder is appropriate under either of the two limbs that are available in pt 6, r 24(1) - they being that, first, the Council ought to have been joined as a party, or, second, that the Council is a body whose joinder as a party is necessary to the determination of all the issues in dispute in the proceedings. 7Although Pepper J in Australian Catholic University v Minister for Planning and Infrastructure [2013] NSWLEC 174 considered that, in that case, there were appropriate bases under both of the tests, they are in my view, nonetheless, tests that have to be considered separately; are capable of being considered in the conflated fashion that her Honour dealt with; and it is possible, in my view, as I consider is appropriate here, that those matters that are raised on the first limb, if unsuccessful on the first limb, as I am satisfied is here the case, are capable nonetheless of contributing to satisfaction of the second limb of the test. 8The first limb that is pressed by the Council is that they ought to have been joined as a party because the applications propose that works be undertaken in the Council's road reserve in Avon Road that will result in the loss of several parking spaces; will result in the construction of one or more pedestrian refuges; and that is something that makes sufficient basis for them to require to have been joined as a party. I do not consider that that submission is well founded. 9The Minister, in the Minister's contentions in the proceedings, raises issues with respect to the location and other matters of adequacy concerning the road works. There is no matter that has been pointed to me, save that the Council is the local roads authority and then thus to be regarded as the future owner of the proposed works, that distinguishes the position adopted by the Council from the position adopted by the Minister on these points. I am satisfied that on that basis the matters concerning the Avon Road, road reserve works, are more than adequately represented by the Minister and that there should not be joinder under the first limb of pt 6, r 24(1). However, the position is somewhat different with respect to the proposals that are advanced with respect to the second limb. 10In this case, the Council raises, in its proposed Statement of Facts and Contentions, a range of matters that are not pleaded by the Minister in the Minister's Statement of Facts and Contentions and which, the Council says to me, are of sufficient importance and difference to warrant joinder to permit resolution of all the matters that are genuinely in dispute between the parties. 11It is appropriate to mention but briefly some matters that make it clear that the Council has been an active opponent of the proposed development since at least March 2013, when the Council made its first submission of considerable detail in opposition to the project. Following the publication of the Director-General's Environmental Assessment Report in June 2013 and subsequent revisions of the proposal, in response to that, the Council filed a further substantive submission in opposition to the proposal in February 2014. As part of the submissions that have been made to me, the Council has set out its proposed Statement of Facts and Contentions. I note at this time, that Mr Hutton of counsel who appeared for the Council, suggested in a number of respects that the Council may need to amend its draft Statement of Facts and Contentions - particularly to incorporate further particularisation of contentions. 12Although I have reached the conclusion that the Council should be joined in both proceedings, I do so on the basis of the draft Statement of Facts and Contentions attached to the Council's submissions. Should the Council wish to seek to amend its draft Statement of Facts and Contentions, it will need to deal with that in an appropriate fashion to provide the project proponent with any opportunity that the project proponent might wish to take to submit that any such amendment might fall foul of Aon v Australian National University [2009] HCA 27; (2009) 239 CLR 175 or otherwise be of prejudice to the proponent of the development. 13The draft Statement of Facts and Contentions is a matter to which I will return further in detail later in this decision; however, it is appropriate to note that the Council's draft Statement of Facts and Contentions includes a number of contentions that are different from those that are pleaded by the Minister. Some of them are of significantly less apparent importance, although, I make (and should be not taken to be making) any merit assessment of the adequacy or importance of any of those contentions, but some of them are clearly of lesser importance than others - some of them might be regarded as matters of detail capable of being rectified during the course of proceedings. 14The position that was adopted by the Minister was that the Minister supported the joinder on the basis that the proposed Statement of Facts and Contentions raises issues or aspects of issues that will not be raised by the respondent and are matters that are relevant considerations in the determination of the appeal by the Court as the consent authority. 15It became clear during the course of the hearing that Ms Duggan SC who appeared for the Minister not only indicated that the Minister was not proposing to raise differing aspects proposed to be raised by the Council but expressly eschewed the Minister adopting those matters and that is a matter of some importance on what I consider to be the determinative proposition in these proceedings to which I will turn in a second. 16The project proponent strongly opposes the joinder of the Council on any basis. 17In part, that opposition is based on the proposition that the Council's additional contentions are differing aspects in, at least as I understood it, flavour only of matters that were otherwise to be pleaded as part of the Minister's Statement of Facts and Contentions and that if they were not appropriate to be so described they were of such a minor nature not as to warrant joinder. As was revealed during the course of the submissions, there is no sufficient support for those broad propositions. 18I take, for example, the suggestion that the Minister's contention concerning "Accessibility" and the proposed contention of the applicant Council on accessibility should be regarded as coincidental. It is clear from the nature of the discussion during the course of the submissions on joinder that the matters that were raised by the Council dealing with the layout of units in one building and the length and nature of an access ramp to a second were quite distinctly different from (and not minor matters compared to) those matters that were raised by the Minister under the same heading. 19I have earlier referred to the Australian Catholic University decision of Pepper J on this matter. Of particular relevance, in my view, given that I have concluded that there should not be joinder under the first limb, is the comment by her Honour in para 58 of the decision concerning the need for flexible and malleable approaches to the processes of Class 1 proceedings. Her Honour said: Subject to ensuring that the parties are afforded procedural fairness as stated above the court is not strictly bound by the contentions identified by the parties in the merits appeal. 20It is important in this application or these proceedings to note that not only are the matters that are contended by the Minister different from those that are proposed to be contended by the Council but there is one quite significant aspect of the Council's proposed contentions which, in my view, warrants joinder under the second limb of pt 6, r 24(1) in its own right. 21The Council, perhaps with a degree of novelty in these proceedings compared to other proceedings, wishes to contend that the terms of its own s 94 Contributions Plan should not be adhered to in the requirement of contributions for this proposed development. Whilst there was some discussion during the course of the hearing about the accuracy or otherwise of the arithmetical calculations that are contained in the proposed draft s 94 condition that was appended to the Council's draft Statement of Facts and Contentions, that is not the matter that is of significance it would seem to me. 22The Council's present Contributions Plan proposes, in effect, that as each stage of the development is approved, the relevant contributions for that stage would become due and payable upon the issue of a construction certificate for that stage. The proponent's statement of commitments agrees to pay contributions on that basis in accordance with the Council's s 94 Contributions Plan. In its draft condition, the Council seeks to have all of the contributions paid to the Council prior to the issue of the first construction certificate for any aspect of the development. 23As I understand it, the Council (although a matter of some novelty for the Council to do so) and any other party to merit appeal proceedings involving s 94 contributions is entitled to suggest to the Court that the Contributions Plan should be varied in some way. Although, the more conventional way these matters are raised in proceedings on merit appeals is for an applicant to say the contributions are too high and should be varied or offset, there does not seem to me to be, consistent with the decision of the Court of Appeal in Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266; (2003) 58 NSWLR 159; (2003) 129 LGERA 165, any reason why a Council in a merit appeal cannot itself seek from the Court the power that the Council does not have itself to have a variation to the Contributions Plan. 24It would seem to me that that is a matter of significant substance which warrants joinder under the second limb. It is also a matter, at least as I apprehend it, of sufficient novelty and future importance in other potential merit appeals to warrant being ventilated and determined - if only to provide some future guidance on that point. 25However, although I am of the view that that matter warrants joinder in itself, I am also satisfied that the range of other matters that are proposed to be pleaded by the Council taken together as a bundle, if I were to be wrong about the importance of the s 94 contributions point, warrants joinder pursuant to the second limb. In doing so, I am simply canvassing the nature of the matters that are proposed to be pleaded and thus put in dispute between the parties in the proceedings. 26I am not to be taken as making any assessment of either the merit or reasonableness of each or any of those that, if it becomes necessary to do so, is capable of being tested on some future occasion before some other member of the Court and guidance in such circumstances might well be taken from Grant v Kiama Municipal Council [2006] NSWLEC 70 if that were to occur. 27As a consequence, given the conclusion I have reached it becomes unnecessary to consider joinder on a Double Bay Marina basis. 28For completeness, I should turn to the recent decision of the Court of Appeal in Ross v Lane Cove Council [2014] NSWCA 50 to which Ms Hemmings of counsel for the project proponent took me. I am satisfied, as Ms Duggan pointed out, that case relates to direct matters that are proposed to deal with the direct personal rights of a person who was not properly joined as a party to the proceedings - they being proceedings in Class 4 of the Court's jurisdiction, rather than merit appeal proceedings in a merit appeal aspect of the Court's jurisdiction. 29Although the matters that were the subject of submissions arising out of the decision of the Privy Council to which I was taken are of interest, I am satisfied that the case is not on all fours and does not give rise to matters that I need to consider in this process. Therefore, the line of reasoning commencing with the decision of Diplock LJ In Pegang Mining Co Limited v Choong Sam [1969] 2 MLJ 52 following through a number of decisions of the High Court including John Alexander's Clubs Pty Ltd v White City Tennis Club do not detain me. 30As a consequence, the orders of the Court are, in matter 2013/10648: (1)Pursuant to pt 6, r 24(1) of the Uniform Civil Procedure Rules 2005, Ku-ring-gai Council is joined as a party to the proceedings; and (2)The exhibits are returned. 31In matter 2013/10834, the order of the Court is that: (1)Pursuant to pt 6, r 24(1) of the Uniform Civil Procedure Rules 2005, Ku-ring-gai Council is joined as a party to the proceedings. Tim Moore Senior Commissioner 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. Decision last updated: 27 June 2014