[2017 NSWLEC 130
Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361
Source
Original judgment source is linked above.
Catchwords
[2017 NSWLEC 130
Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361
Judgment (2 paragraphs)
[1]
Judgment
By its Notice of Motion filed on 15 December 2022 (the Motion), the Commonwealth of Australia seeks to be joined as a party to Class 1 appeal proceedings between the applicant, CWO Pty Ltd, and the respondent, Muswellbrook City Council (the Council), pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
Section 8.15(2) of the EPA Act provides as follows:
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.
The Commonwealth submits that it should be joined to the proceedings pursuant to either s 8.15(2)(a) or s 8.15(2)(b) of the EPA Act.
The Commonwealth's application for joinder to the proceedings is supported by the respondent and is opposed by the applicant.
In support of its application, the Commonwealth relies on the evidence of Mr Tim Hogan, the Acting Director Land Planning and Regulation, which is set out in Mr Hogan's affidavits affirmed 12 December 2022 and 19 January 2023.
The applicant is the lessee of the property at 516 Rosemount Road, Denman NSW (the Site). The Site is approximately 236 hectares in size and was formerly used as a winery and wine storage and distribution complex. There are approximately 30,000 square metres of sheds and associated buildings constructed on the Site.
On about 4 November 2021, the applicant lodged a development application with Council, being Development Application No. D/2021/137 (Development Application), for approval for the change of use of the Site from a winery, storage and distribution complex to an "information and education facility with focus on light art".
The Statement of Environmental Effects (SEE) accompanying the Development Application described the proposed development as follows:
"The development proposal is for the change of use of a former winery, storage and distribution complex at 516 Rosemount Rd Denman NSW to that of an Information and Education Facility. The existing infrastructure on the site can be repurposed rapidly to build a vibrant tourism attraction and further create local jobs to boost the local Muswellbrook Shire economy. Due to the lengthy period of vacancy the owners of the site are leasing the property to CWO Pty [Ltd] who are seeking approval for the proposed change of use.
Any future installations of art works on the site will be the subject of a separate development application. It is intended that the proposed Information and Education Facility will utilize the existing built infrastructure …
CWO Pty Ltd is proposing to operate a tourist attraction focusing on light art. The proposed Information and Education Facility will contain elements of a museum, art gallery and visitor centre.
The proposed change of use is an adaptive reuse of an existing facility and is estimated to attract approximately 250 visitors per day and employ approximately 50 staff in its first year of operation. The visitor numbers are projected to increase to 500 people daily and employ 83 staff by the third year of operation. …
The facility will be open 365 days per year and opening to the public at 10 am. Closing time will be 10 pm at the latest in mid-summer and 7 pm at the earliest in mid-winter. …
A separate application for food and beverage facilities may be sought in the future to complement the proposed use. It is expected that these facilities will have a seating capacity of approximately 250 and operate the same hours as the main facility and solely service visitors to the Information & Education Facility."
The Commonwealth is the owner of land which is adjacent to the northern and eastern boundaries of the Site (the Commonwealth Land).
The Commonwealth Land is the site of the Myambat Explosive Ordnance Depot (EO Depot), which is an enduring site serving as the National Wholesale Explosive Ordinance Depot for the Australian Defence Force (ADF) which stores and distributes explosives to the ADF around Australia.
The EO Depot is classified as a "Major Hazard Facility" (MHF) by Comcare, the Commonwealth work health and safety regulator and requires a licence from Comcare to operate.
Mr Hogan's affidavit provides a copy of the Department of Defence's "Safeguarding Map" which plots "safeguarding lines" around the EO Depot. That document states that the safeguarding lines represent the areas within which the Department of Defence may not want certain types of development and land uses permitted.
Part of the Site is within the "purple safeguarding line" around the EO Depot, which includes the part of the Site which is the subject of the Development Application.
Mr Hogan's first affidavit annexes a copy of the document entitled "Safeguarding Maps for Explosive Facilities" which describes the purple safeguarding line as follows:
"PURPLE SAFEGUARDING LINE
Defines the minimum distance large public buildings, where many people may congregate, or major community amenities, must be sited from explosive facilities. The following are examples of structures and facilities that the Department of Defence may not wish to see approved inside the Purple Line:
major public structures or facilities of economic importance or of vulnerable construction, eg transportation terminals and telephone exchanges,
major structures or facilities that attract large populations, eg multi-storey buildings, schools, hospitals, shopping centres, sports stadiums, and
major public infrastructure which would cause considerable inconvenience to the general public if damaged, eg major bridges and dams."
The Commonwealth submitted that the purpose of the "safeguarding lines" is to mitigate the risks of the EO Depot to users of surrounding land, and also to protect the long-term viability of the EO Depot.
Defence's principal objections to the Development Application are that the proposed development (a) is not suitable for the Site given its close proximity to the EO Depot, and (b) is not in the public interest because of its possible adverse impacts on the continuing operation of the EO Depot. These objections are based on the increased number of people attending the Site each day (up to 583 persons per day based on the applicant's SEE).
The Commonwealth also submitted that its Comcare licence for the EO Depot may be restricted as a result of the Development Application being approved, adversely impacting the EO Depot's functions and operations, which may impact on the ability of the ADF to store and distribute explosive ordnance throughout Australia.
It is for these reasons that the Commonwealth seeks to be joined to the proceedings to raise these contentions in opposition to the Development Application.
The Commonwealth has prepared a proposed Statement of Facts and Contentions which, if leave is granted, it proposes to file in these proceedings. That proposed Statement of Facts and Contentions largely covers the same ground of the three written objections to the Development Application submitted to the Council by Defence. These objections are also largely reproduced in the Statement of Facts and Contentions filed by the Council in these proceedings.
The duplication of the contentions raised by Council and proposed by the Commonwealth is one of the bases on which the applicant seeks to resist the Motion. Indeed, the applicant has provided detailed submissions covering the extent to which the Council contentions and Commonwealth's proposed contention overlap. It is accepted law that joinder should not be granted if an issue can be sufficiently addressed without joinder: Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361 at [44]; Ali v Liverpool City Council [2009] NSWLEC 107 at [32].
When pressed by the court on this point the Council submitted that it considered the Commonwealth best placed to argue those contentions before the court and give any evidence in support of them and that if joinder was ordered, the respondent would not press those contentions.
Despite this stated position and the Council's support of the Motion, this is not a situation analogous to Avalon Beach Property Pty Limited v Northern Beaches Council (2017) 227 LGERA 393 when his Honour found that without joinder the proceedings lacked a contradictor. These proceedings do have a contradictor, and the Council has informed the Court that it will continue to press those contentions proposed by the Commonwealth if joinder is not ordered.
The Commonwealth submitted that only it is able to raise these contentions and adduce evidence in respect of them and do so sufficiently. This was disputed by the applicant, and I do not accept the submission.
The contentions that the Commonwealth proposes to raise are before the Court. They are contained in three detailed objections, are incorporated into the Council's Statement of Facts and Contentions and are the subject of a detailed Statement of Facts and Contentions in Reply filed and served by the applicant on 23 December 2022.
Furthermore, it is a well-established principle that there is no property in a witness and experts and other witnesses from Defence can and may be called on to give evidence in these proceedings concerning Council's contentions. As such, I do not find that there is an issue that can be raised by the Commonwealth that would not be sufficiently addressed if joinder is not ordered.
The second matter I must consider is whether it is in the public interest or the interests of justice for the Commonwealth to be joined to the proceedings. In considering this matter I am guided by the Court of Appeal in Shoalhaven City Council v Lovell (1996) 136 FLR 58 (Lovell) at [62]-[63] who held that the possible adverse impacts of a proposed development on the functioning of a Defence installation (in that case, a naval air force base), as well as the possible adverse impacts of the Defence installation on the proposed development, were relevant matters for the Court to take into account in the exercise of its discretion, which in the Lovell case the discretion to be exercised was whether to grant or refuse consent to the proposed development.
It is accepted that the EO Depot stores and distributes explosive ordinances to Defence sites around Australia. I accept that there are risks associated with the operation and functions of the EO Depot both to people at the EO Depot and on surrounding sites.
The applicant provided detailed evidence and submissions on the amount of publicly available information available about this particular EO Depot. However, I prefer the evidence of Mr Hogan who attests that if approved, the Development Application may impact the operation, function and viability of this EO Depot and the ability for the ADF to store and distribute explosive ordinance throughout Australia. The impact of the proposed development on the EO Depot and, conversely, the potential risk and impact of the EO Depot's operations on the proposed development are matters I consider to be of public interest for the purposes of s 8.15(2)(b)(ii) of the EPA Act.
Guided by the finding in Lovell, I consider it in the public interest to exercise of the court's discretion in favour of the Commonwealth and I make an order for joinder in its favour.
The orders of the Court are:
1. The Motion is granted.
2. The Commonwealth of Australia is joined as the Second Respondent to these proceedings.
3. The Second Respondent is directed to file and serve its Statement of Facts and Contentions in the form annexed at A to the affidavit of Mr Hogan affirmed on 19 January 2023 by 6 February 2023.
4. The First Respondent is granted leave to file and serve an amended Statement of Facts and Contentions in respect of the contentions it no longer presses by 12PM on 7 February 2023.
5. The conciliation conference listed at 10:30AM on 8 February 2023 is confirmed.
S Froh
Registrar of the Court
[2]
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: 06 February 2023