Issues proposed to be raised by Applicants for Joinder
Interests of justice
Source
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Catchwords
JOINDER: Application for joinderStatutory testsIssues proposed to be raised by Applicants for JoinderInterests of justicePublic interest
Judgment (2 paragraphs)
[1]
Judgment
REGISTRAR: This matter came before me on a Notice of Motion filed 23 November 2018 and heard on 11 December 2018 which seeks the joinder of Fincob (Oxford Street) Pty Limited (Fincob) as a respondent to the Class 1 proceedings between CMT Architects Australia Pty Ltd and Waverley Council (the Motion). Fincob owns five parcels of land adjoining the development site the subject of the substantive proceedings.
The affidavit of Mr Philip Couch sworn on 23 November 2018 was read in support of the Motion. The affidavit of Mr Chris Tsioulos sworn on 5 December 2018 and the affidavit of Mr Michael Gheorghiu sworn on 5 December 2018 were read opposing the Motion.
Fincob moves for joinder under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), which states:
(2) On an appeal under this Division, 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.
It has been put to me that Fincob proposes to raise the following contentions if it is joined to the proceedings:
1. Impact on Development Potential of Fincob Properties; and
2. Right of Carriageway.
In respect of proposed contention 1, it is conceded by Fincob that this issue is raised in the Respondent's Statement of Facts and Contentions. However, it is pressed by Fincob, as it is of the view that it is most able to readily assist the Court in respect of providing further expert evidence and modelling about the impact of the Applicant's proposed development on the ability for Fincob to develop its land.
It was also submitted to me that proposed contention 1 has not been pursued by the Council in the manner and way that Fincob believes it should be. To that end, the Court notes that proposed contention 1 is particularised over the course of three pages in the Draft Statement of Contentions annexed to the affidavit of Mr Couch.
It has also been submitted to me that Fincob wishes to raise proposed contention 2 about the proposed development's use of the right of carriageway which currently burdens Fincob's land. This is proposed contention is also particularised and includes issues with regards to fire safety, BCA compliance and the impact of the proposed development on the development potential of Fincob's land.
A contention about the easements and rights of carriageway affecting the subject site is raised by the Council in its Statement of Facts and Contentions, albeit as an insufficient information contention that seeks clarification about the rights of way and easements.
The Applicant's response to that contention is at B3(2) of its Statement of Facts and Contentions in Reply where it states it "does not seek to change the use, alter the form or provide public access through the rear right of way of the property to Spring Street". It goes on to state that "[d]etail about lot ownership, rights of way and easements can be provided to the Council prior to the s 34 conference."
Fincob also raised issues regarding the right of carriageway and safety issues in one of its submissions to Council which was annexed to the affidavit of Mr Couch. This was also raised in the Council's materials annexed to the Applicant's Statement of Facts and Contentions in Reply.
In support of its submissions regarding the right of carriageway, Fincob sought to rely on the decision of Al Maha Pty Limited v Huajun Investments Pty Limited [2018] NSWCA 245 (the Al Maha decision). In that case a s 34 agreement granting development consent was quashed on a jurisdictional point, as the development consent approved the construction of a driveway across Al Maha's land and Al Maha had not provided owners consent. Ultimately, the proceedings returned to the Land and Environment Court and Al Maha was joined to the proceedings: Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194.
Fincob also sought to rely on the case of Quakers Hill SPV Pty Limited and Blacktown City Council (No 2) [2012] NSWLEC 243 (the Quakers Hill decision) in support of its Motion. In that case an intervenor was joined based on the safety matters which arose on its land as a result of the use of a right of carriageway by the proposed development.
It is my view that the Owners Corporation should not be joined as a party to the proceedings, by reference to either limb (a) or (b) of s 8.15 (2) of the EPA Act.
The first limb of the test for joinder is whether the issues proposed to be raised by the party seeking joinder are sufficiently addressed. As previously stated, it is conceded by Fincob that both of the contentions that Fincob proposes to raise fall within the Council's contentions.
The test for joinder is not whether the issues are being argued in the way and manner the applicant for joinder would like, but whether the issues are sufficiently addressed. Based on the evidence currently before me and the Statement of Facts and Contention and the Statement of Facts and Contentions in Reply filed in these proceedings, I am satisfied that Fincob's proposed contentions are before the Court and capable of being sufficiently addressed.
In respect of Fincob's submissions relying on the Al Maha decision, I consider that decision readily distinguishable from these proceedings. These proceedings and Fincob's proposed contention 2 concern an already existing easement for a right of way. The Al Maha decision concerned a development where there were no rights for access across Al Maha's land.
As such, the jurisdictional point which quashed the development consent in the Al Maha decision (and was one of the grounds argued for Al Maha's joinder to those proceedings) does not arise on the contentions proposed to be raised by Fincob.
Even if I am wrong on this point with respect to this jurisdictional point, I do not consider the fact that a jurisdictional issue is not expressly raised in the material before the Court to be sufficient grounds for the order of joinder.
Any agreement entered into under s 34(3) of the Land and Environment Court Act 1979 (Court Act) can only be entered if the Commissioner considers the agreement to reflect "a decision that the Court could have made in the proper exercise of its functions".
This has always been the case and it means that if a Commissioner is presented with a s 34 agreement which she does not consider to accord with law, despite the parties' agreement, the Commissioner is to refuse to make the agreement.
The Al Maha decision specifically states that the presiding Commissioner is to expressly consider her jurisdiction when entering into a s 34 agreement and to give reasons for her findings about the jurisdiction of the Court (Preston CJ at [201]). As such, the right of way and proposed use of the easement in these proceedings will need to be expressly considered by the presiding Commissioner.
The Quakers Hill decision saw the joinder of a party to the proceedings on safety grounds and Fincob raises fire safety (amongst other particulars) in its proposed contention 2. I am of the view that the Quakers Hill decision does not provide sufficient grounds to support the joinder of Fincob to these proceedings. Proposed contention 2 has been raised repeatedly before Council, is discussed in the Council reports, is addressed in Fincob's submissions. Such material would be provided to the Court on any appeal and would be considered by the Court in determining the appeal. Furthermore, the proceedings are set down for a s34 conciliation conference and Fincob will again have an opportunity to address the issues it has concerns about and wishes to agitate on appeal.
Each of these matters support a conclusion that the issues sought to be raised are likely to be sufficiently addressed even if Fincob is not joined as a party
I also do not consider it necessary to join Fincob based on the second limb: being the interests of justice or the public interest.
To this end, I rely on the statement of Preston CJ in Morrison Design Partnership Pty Limited v North Sydney Council & Anor (2007) 159 LGERA 361 (Morrison Design) at [54] when he said: "Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings."
I am also of the view that Fincob has raised its concerns about the proposed development with the Council as evidenced by one of Fincob's submissions to Council annexed to the affidavit of Mr Couch. Those concerns have been adequately canvassed throughout the development assessment process and incorporated broadly into the Council's Statement of Facts and Contentions. The issues will continue to be addressed in the conciliation conference and at any hearing, by consideration of the Council documents that will inevitably be tendered: Morrison Design [55]. As such, it is not necessary to join Fincob to these proceedings having regard to the public interest or the interests of justice.
These findings all support the conclusion that Fincob should not be joined.
[2]
Orders
The orders of the Court are that the Notice of Motion is dismissed.
……………………….
Registrar Froh
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Decision last updated: 09 January 2019