CWO Pty Ltd v Muswellbrook Shire Council and Commonwealth of Australia

Land and Environment Court (NSW)|2023-03-10|Before: Robson J

Judgment

Before the Court is a notice of motion filed 21 February 2023 by CWO Pty Ltd ('CWO') seeking a review pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') of the decision and orders made by the Registrar of this Court on 6 February 2023 joining the Commonwealth of Australia ('Commonwealth') as the second respondent to these Class 1 proceedings: CWO Pty Ltd v Muswellbrook Shire Council [2023] NSWLEC 1049. These appeal proceedings were commenced by CWO on 31 October 2022 appealing against the deemed refusal by Muswellbrook Shire Council ('Council') of a development application lodged by CWO on or about 4 November 2021.
The notice of motion seeks the following orders: "1 The decisions and orders of Registrar Froh made 6 February 2023 be set aside. 2 The Notice of Motion filed by the Commonwealth of Australia on 15 December 2022 be dismissed. 3 The Commonwealth of Australia to pay the Applicant's costs of this motion. 4 Such further order as the Honourable Court deems fit."
For the reasons that follow, I consider that the decision and orders made by the Registrar on 6 February 2023 should be varied such that the scope of the Commonwealth's participation as a party is limited to discrete issues raised in Contentions 1 and 2 of its draft statement of facts and contentions (being annexure A to the affidavit of Tim Hogan affirmed 19 January 2023) in relation to the impact of the proposed development on the Myambat Explosive Ordnance Depot and/or the impact of the Myambat Explosive Ordnance Depot on the proposed development.

Background

An understanding of the background facts, which are relatively uncontentious, provides context for the detailed submissions made by the parties. Further facts not recorded in this section of the judgment are noted in my consideration of the parties' submissions.
CWO is the lessee of the property at 516 Rosemount Road, Denman ('site'). The site is approximatively 236ha in size and was formerly used as a winery, wine storage and distribution complex. There are approximatively 30,000sqm of sheds and associated buildings constructed on the site.
On or about 4 November 2021, CWO lodged a development application with Council, seeking development consent for a change of use of the site from a winery, storage and distribution complex to an "information and education facility with a focus on light art" ('proposal').
The statement of environmental effects accompanying the development application described the proposal 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 2328 to that of an Information and Education Facility. … 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 compliment 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 owns land that is adjacent to the northern and eastern boundaries of the site, and on which the Myambat Explosive Ordnance Depot ('EO Depot') is located ('Commonwealth Land'). The EO Depot is a site serving as the National Wholesale Explosive Ordnance Depot for the Australian Defence Force ('ADF') which stores and distributes explosives to the ADF around Australia.
Given the nature of the materials stored at the EO Depot, it is classified as a "Major Hazard Facility" by Comcare, a statutory authority of the Australian Federal Government established to regulate work health and safety, and it requires a licence from Comcare to operate.
In order to mitigate the risk posed by the EO Depot to persons on land surrounding the Commonwealth Land, the Department of Defence has prepared a "Safeguarding Map" which plots various "safeguarding lines" around the EO Depot, which represent the areas within which certain types of development and land uses should not be permitted. The map and associated plotting are not part of any environmental planning instrument or policy adopted by Council, and the plotting does not reflect land boundaries. The purpose of the "safeguarding lines" is, according to the Commonwealth, to minimise the risk to persons on land surrounding the EO Depot, and also to protect the long-term viability of the EO Depot from the adverse effects of incompatible developments on adjacent land.
The part of the site which is the subject of the proposal is within a "safeguarding line" around the EO Depot styled "purple safeguarding line", and the Commonwealth (through the Department of Defence) maintains that the following types of development and land uses should not be permitted on land within the "purple safeguarding 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 explosive ordnance infrastructure constructed on the Commonwealth Land is valued at approximatively $800 million.
The development application was notified to adjoining property owners on 29 November 2021. The Commonwealth provided three separate written submissions objecting to the proposal on 17 December 2021, 4 March 2022 and 27 July 2022.
By notice of motion filed 15 December 2022, the Commonwealth sought to be joined as a party to these Class 1 appeal proceedings commenced by CWO. The motion for joinder was heard by the Registrar on 25 January 2023. In a compendious judgment delivered on 6 February 2023, the Registrar ordered that the Commonwealth be joined as the second respondent to these proceedings. The Registrar also made orders for the further conduct of the matter, including directing the Commonwealth to file and serve its statement of facts and contentions and granting leave for Council to file an amended statement of facts and contentions in respect of the contentions it no longer pressed as a result of the joinder.
CWO's notice of motion to review the Registrar's decision was heard on 10 March 2023. Mr A Stafford of counsel, appeared for CWO; Ms A Pearman of counsel, appeared for Council; and Mr D Robertson of counsel, appeared for the Commonwealth.

Registrar's decision

In her judgment, the Registrar briefly recorded the salient background facts (including that Council supported the Commonwealth's application) and summarised the evidence before the Court in a manner which does not raise concern. The judgment then recorded in summary form, the reasons for which the Commonwealth sought to be joined to the proceedings and noted its "principal objections" to the proposal, being first, that the proposal was not suitable for the site given its close proximity to the EO Depot; and second, that it was not in the public interest because of its possible adverse impacts on the continuing operation of the EO Depot, particularly in consideration of the proposed number of people anticipated to attend the site on a daily basis and the resulting impact on the ADF's ability to store and distribute explosive ordnance to the ADF throughout Australia.
The Registrar recorded that the Commonwealth had prepared a draft statement of facts and contentions that it proposed to file, if made a party, which reflected the three written submissions it had produced to Council in objection to the proposal. The Registrar recorded that these objections had been "largely reproduced" in the statement of facts contentions that had been filed by Council in these appeal proceedings. The Commonwealth's draft statement of facts and contentions raised "Site Suitability"; "Impacts on the ongoing operation of the EO Depot"; and "Public Interest", as three discrete contentions. Council's statement of facts and contentions filed 12 December 2022 raised as Contention 1, "Site Suitability" as one of a number of contentions which was particularised by reference to the three detailed written submissions produced by the Commonwealth. The Registrar then noted that the apparent duplication of contentions raised by Council and those proposed by the Commonwealth and was one of the bases upon which CWO opposed joinder.
The Registrar then noted Council's submission that the Commonwealth was "best placed" to argue those contentions and that Council indicated that it would not press those contentions proposed by the Commonwealth if joinder was ordered. This position was not supported by CWO.
The Registrar, having summarised the parties' respective positions, then recorded (at [23]-[25]), in obvious reference to s 8.15(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW) ('EP&A Act'), that she did not find that there was any issue that could only be raised by the Commonwealth and that would otherwise not be sufficiently addressed if joinder was not ordered. Having so found, she then considered (at [26]), in obvious reference to s 8.15(2)(b) of the EP&A Act, whether "it is in the public interest or the interests of justice for the Commonwealth to be joined to the proceedings".
The Registrar, having briefly summarised the applicable law, noted that CWO had provided detailed evidence and submissions in relation to "publicly available information" about the EO Depot, however, she recorded her preference for the evidence called by the Commonwealth, being the affidavits of Tim Hogan, the Acting Director, Land Planning and Regulation, Estate Planning Branch in the Commonwealth Department of Defence, affirmed 12 December 2022 and 19 January 2023, who deposed to the impacts of the proposal on the operation, the function and viability of the EO Depot, and the ability of the ADF to store and distribute explosive ordnance to the ADF throughout Australia, and considered the potential risk and impact of the EO Depot's operations on the proposal.
Thereafter, "guided by" comments of the Court of Appeal in Shoalhaven City Council v Lovell (1996) 136 FLR 58 ('Lovell') (Court of Appeal (NSW), Gleeson CJ, Mahoney P and Sheller JA, 4 December 1996) at [62]-[63], the Registrar stated at [28]: "…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."
In light of these findings, the Registrar exercised her discretion in favour of the Commonwealth and made orders for joinder. The Registrar further ordered that the Commonwealth file and serve its statement of facts and contentions (in the form which had been annexed to the affidavit of Mr Hogan affirmed 19 January 2023) and granted Council leave to file and serve an amended statement of facts and contentions in respect of contentions Council no longer pressed. A conciliation conference was also confirmed to proceed on 8 February 2023.

Evidence

In respect of its motion seeking review of the Registrar's decision, CWO tendered two bundles of documents. The first contained the material (including the affidavits) that was before the Registrar (referred to by CWO as the "appeal bundle") and a supplementary bundle containing, inter alia, an aerial map of the EO Depot; the transcript of the hearing of the motion for joinder before the Registrar; and Council's annual financial statements for the year ended 30 June 2022. CWO also read the affidavit of Christopher James Hilton affirmed 21 February 2023 and the affidavit of Harchit Kaur affirmed 9 March 2023.
Council tendered a copy of its amended statement of facts and contentions filed 6 February 2023 (which still raises, as Contention 1, "Site Suitability"), and Council read the affidavit of James Matthew Griffiths sworn 9 March 2023. Mr Griffiths, Council's solicitor, deposed to his instructions that Council did not have the resources to advance the issues raised by the Commonwealth which are in the domain of the Commonwealth; has not retained experts to address the issues raised by the Commonwealth; and will not adduce expert evidence in respect of the matters raised in Contention 1 of its amended statement of facts and contentions if the order for joinder is upheld.
The Commonwealth read (in part) the affidavit of Justin Matthew McGovern sworn 9 March 2023. Mr McGovern, the Commonwealth's solicitor, provided details of the expert and lay witnesses retained by the Commonwealth to give evidence in these appeal proceedings. These include Charles Mangion, Director Land Planning and Regulation, Estate Planning Branch in the Commonwealth Department of Defence, who will give evidence as to the nature of the EO Depot (including what it is used for, and its strategic importance), and the impact on its operation and functions if the proposal is approved; and Dr Anthony Green, an independent risk assessment expert, who will give evidence in respect of potential risks to the proposal associated with fire, explosion, emergency planning, and other catastrophic risks.

CWO's position

CWO makes three primary submissions. First, the Registrar misapplied the statutory test for joinder in s 8.15(2)(b)(ii) of the EP&A Act when she considered whether the Commonwealth could raise an issue "of public interest", which is a consideration relevant to the evaluation of a development application under s 4.15(1)(e) of the EP&A Act, rather than satisfying herself that it was in the public interest that the Commonwealth be joined to the proceedings. CWO submits that the test under s 8.15(2)(b)(ii) asks a different question and has a much narrower application than the considerations before a consent authority under s 4.15(1)(e).
In circumstances where the Commonwealth relies on what CWO claims to be an unsubstantiated risk posed by its facility to the neighbouring community in order to satisfy the public interest limb in s 8.15(2)(b); where the Commonwealth is not raising any issue that Council cannot address by its contentions; where the Commonwealth is not proposing to put forward a specialist expert in its employment, such that there are no evidentiary questions that only the Commonwealth could address; and where the Commonwealth has already had the opportunity of meaningful participation by way of three written submissions opposing the proposal, CWO submits that it was not in the public interest, in the relevant sense, that the Commonwealth be joined to these appeal proceedings.
CWO further submits that the Registrar failed to exercise, in relation to the Commonwealth, the restraint that applies to considerations of the public interest under s 8.15(2)(b)(ii) in the same way as she would have in relation to any other intervener.
Secondly, CWO submits that, in circumstances where the Court's power pursuant to s 8.15(2)(b)(ii) of the EP&A Act is discretionary and requires satisfaction that it should, in fact, exercise its discretion to grant joinder having regard to the nature of the issues sought to be raised and the overriding objective of the just, quick and cheap resolution of the proceedings, the Registrar erred by failing to address several discrete factors put to her by CWO in its extensive submissions as to why she should not exercise her discretion. These factors included, the fact that the Commonwealth sought to be joined to the proceedings to raise issues that Council had already raised; that CWO would thereby incur unnecessary costs in preparing a further statement of facts and contentions in reply addressing the same issues (albeit raised in a different way); that the joinder may result in a multiplicity of experts; that the Commonwealth failed to provide specific details on the expertise that it would seek to call; that the Commonwealth has delayed bringing its application for joinder; and, that alternative mechanisms were available for the Commonwealth to participate in these appeal proceedings. CWO also submits that Council has persisted, despite the Registrar's decision, in raising Contention 1 concerning "Site Suitability", and particular (i) of Contention 4, in relation to the submitted "Evacuation Plan" in its amended statement of facts and contentions, which duplicate those proposed contentions now raised by the Commonwealth.
Thirdly, CWO submits that the Registrar failed to consider the appropriate scope of the Commonwealth's participation, including whether it should be given leave without restriction to file and rely on all of its proposed contentions in the proceedings and/or whether the Commonwealth should participate by way of limited joinder, or some other means. If the Court was minded to grant joinder, CWO submits that it should limit the Commonwealth's involvement solely to the contention in its draft statement of facts and contentions concerning the alleged impacts of the proposal on the Commonwealth Land and the alleged impacts of the EO Depot on the proposal.
In addition, CWO submits that the Court should revoke the leave granted to the Commonwealth to file and serve its statement of facts and contentions in relation to proposed Contention 3, Contention 2 particular (c), as well as the facts in Part A, save for 5 and 6. Alternatively, CWO relies on the Court's discretion to make such other orders as it deems fit, such as a "Double Bay Marina" order (as per Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313) under s 38(2) of the Land and Environment Court Act 1979 (NSW) ('Court Act').
CWO opposes the respondents' reliance, raised during oral submissions, on s 8.15(2)(a) of the EP&A Act as an alternative ground for joinder. CWO submits that responsibility lies with Council, as the relevant consent authority, to make a decision as to which contentions are to be raised in these appeal proceedings, and that Council's concession in relation to Contention 1 (noted below, that Council would proceed without pressing Contention 1 if the Commonwealth's joinder is upheld) is undesirable as it involves Council "outsourcing" its contentions to the Commonwealth and "abdicat[ing] responsibility for running the contention".
CWO is also critical of Council's new evidence that it does not have the resources to deal with the issues raised by the Commonwealth, submitting that Council could clearly marshal town planning evidence and itself call the independent risk expert (Dr Green) to give his evidence in Council's case. CWO further submits that the calling of a single expert is "hardly a considerable expense" in the context of a Class 1 appeal where Council had proposed to raise Contention 1 in any event.
Further in relation to the requirement in s 8.15(2)(a) of the EP&A Act, CWO submits that the Commonwealth has not provided any compelling evidence concerning the alleged risks posed to, and by, the EO Depot and the Commonwealth's operations, such that it has not made out that it can raise any issue that would not be properly articulated if it were not joined as a party. Finally, CWO reiterates its submissions that the Commonwealth has already had a meaningful opportunity to participate as an objector and that joinder under s 8.15(2)(a) would result in increased costs to the parties.

The Commonwealth's position

The Commonwealth opposes CWO's motion seeking review and submits that the Registrar's decision and orders ought to remain undisturbed.
In relation to a court's power to review a registrar's decision and in response to the alleged error of law in the Registrar's application of the test in s 8.15(2)(b)(ii) of the EP&A Act raised by CWO, the Commonwealth submits that there is a "unity" in the meaning of "public interest" in ss 4.15(1)(e) and 8.15(2)(b)(ii) of the EP&A Act, such that the Registrar did not err in the application of the statutory test. In any event, the Commonwealth submits that notwithstanding any demonstrated error of law in the Registrar's decision, the interests of justice do not require intervention in circumstances where one of the alleged errors of law is a deficiency of reasons, and the result is not an unreasonable one.
In relation to CWO's concerns over any duplication of issues with a resulting increase in the costs of the proceedings, the Commonwealth submits that its statement of facts and contentions raises contentions different (and additional) to those raised by Council in its amended statement of facts and contentions, including Contention 2, which relates to the adverse impact that CWO's proposal will likely have on the continued operation of the EO Depot and the ADF's capabilities.
The Commonwealth further submits that joinder will neither result in a multiplicity of issues or experts nor in increased costs for the parties in light of Council's agreement with the Commonwealth that only the Commonwealth would adduce evidence in respect of Contention 1 of Council's amended statement of facts and contentions; and Contentions 1, 2 and 3 of the Commonwealth's statement of facts and contentions. In any event, any resulting overlap in the issues raised by the respondents would not, in the Commonwealth's submission, outweigh the 'public interest' considerations which weighed in favour of the Commonwealth's joinder.
The Commonwealth addresses CWO's submissions in relation to the evidence regarding the risk posed by its facility to the neighbouring community and points to the evidence of Mr Mangion regarding the particular safety risk that would eventuate in the case of an explosion arising from a major incident at the EO Depot and submits that this evidence establishes the nature and extent of the relevant risk. Irrespective of the magnitude of such risk, the Commonwealth submits that satisfaction of the existence of a "not insignificant risk" favours joinder under s 8.15(2)(a) or (b) of the EP&A Act.
In relation to CWO's submission that there are other ways in which the Commonwealth could participate in these appeal proceedings in lieu of being joined as a party, the Commonwealth submits that an alternative order (such as a "Double Bay Marina" order) is not appropriate in circumstances where the proceedings are at an advanced stage, and where the Commonwealth seeks to retain full rights of participation and of appeal. The Commonwealth further submits that it would, in any event, be required to seek leave from the Court to further amend its statement of facts and contentions, such that joinder would not necessarily create a risk that additional matters would be raised.

Council's position

Council opposes the orders sought in CWO's motion seeking review and submits that the Registrar was correct to order joinder pursuant to s 8.15(2)(b) of the EP&A Act. Council points to its recent evidence, which was not before the Registrar, that Council did not have the resources to "advance the issues put by [the Commonwealth]" and that only the Commonwealth could adduce expert evidence in relation to Council's primary contention, being "Site Suitability".
In response to CWO's concerns over Council's failure to remove Contention 1 in its amended statement of facts and contentions following the grant of joinder by the Registrar in circumstances where Council had informed the Registrar that it would do so if the Commonwealth was made a party, Council submits that in light of its duty as the consent authority, Contention 1 ought to remain on foot until judgment on this notice of motion for review. However, Council indicates that it would be prepared to proceed without pressing Contention 1 of its amended statement of facts and contentions should the Registrar's decision and orders in relation to joinder remain undisturbed. In these circumstances, Council submits that joinder of the Commonwealth as a party pursuant to s 8.15(2)(a) of the EP&A Act in order to address Contention 1 would be appropriate on the basis that Council would no longer raise this contention.
Council noted that it would continue to press Contention 1 if joinder is not ordered.

Consideration

It is first appropriate to record the legislative provisions in relation to a review of a registrar's decision and in relation to the joinder of parties.
Rule 49.19 of the UCPR provides: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. …
The principles governing the exercise of the Court's power to review a registrar's decision are conveniently summarised in Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 at [12]-[13] per Preston CJ of LEC, as follows: "[12] What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party's rights. In Tomko v Palasty (No 2) [[2007] NSWCA 369] at [8] and [9], Hodgson JA (with whom Ipp JA also agreed) provided guidance as to what might be required for the different types of decisions: '8. In the case of a decision on practice [or] procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. 9. In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of justice require it. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.' [13] Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]-[48] and [52(4)]."
The applicable principles have been frequently cited: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 ('Tomko') at [5]-[9] (Hodgson JA, Ipp JA agreeing); Elanor Investors Limited v Sydney Zoo Pty Ltd (No 2) [2019] NSWLEC 121 at [40] (Pain J); DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31 at [24]-[25] (Robson J); Nola Demuth v Eurobodalla Shire Council [2021] NSWLEC 10 at [4] (Duggan J); Benyon v City of Canada Bay Council [2021] NSWLEC 122 at [36] (Pain J); Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [52] (Kirk JA).
A party may be joined to proceedings pursuant to s 8.15(2) of the EP&A Act or pursuant to r 6.24 of the UCPR. The Commonwealth's motion for joinder before the Registrar sought orders under s 8.15(2), which reflects the former s 39A of the of the Court Act, and sets out the circumstances under which an application for joinder may be made and the matters to be considered in assessing whether joinder should be ordered, in the following terms: 8.15 Miscellaneous provisions relating to appeals under this Division … (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. …
The consideration of s 8.15(2) is a two-step process. First, the Court must be satisfied that the requirements of s 8.15(2) are met and, second, if they are, the Court must determine whether it is appropriate to exercise its discretion to join the putative party.
In Morrison Design Partnership Pty Ltd v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802; (2007) 159 LGERA 361, Preston CJ of LEC stated at [43], that the section (then s 39A of the Court Act) was not intended to be a plenary power allowing, in all circumstances, objectors to non-designated development to become a party to an appeal, and further observed at [54]: "The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. 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 of the opinion that the Registrar's decision under review is a decision on practice and procedure, as opposed to a decision which finally determines, or has a decisive impact on, a party's rights. Review of a decision of this nature normally requires at least a demonstration of an error of law or a material change of circumstances which may result from further evidence being marshalled before the reviewing court. However, as often stated, even if there has been an error of law or a material change in circumstances (or indeed further material evidence), the reviewing court may consider that the interests of justice do not require intervention, particularly where one of the concerns is a deficiency of reasons, and the decision itself is not on its face an unreasonable one.
Having had the benefit of detailed written and oral submissions and having closely considered the extensive evidence before the Registrar and the further evidence now before the Court, and although not without some concern in relation to a number of the matters raised by CWO, I have formed the view that it is not appropriate to overturn the decision of the Registrar but that it is appropriate, in the light of the further material now before the Court, to review the orders as to the scope of the Commonwealth's participation in these appeal proceedings which are now to be confined to the one issue which it primarily raises, being "Site Suitability", and the impacts on the ongoing operation of the EO Depot. My reasons can be shortly stated.
First, I do not accept CWO's primary position that the Registrar misapplied the statutory test in s 8.15(2)(b)(ii) of the EP&A Act, and thereby committed an error of law, when she appeared to find that the Commonwealth could raise an issue of "public interest" when the trigger in the subsection is in fact that the joinder itself should be "in the public interest", and that such error is compounded or shown by the Registrar's adoption (at [26]) of the reasoning in Lovell. Although the Court of Appeal in Lovell (per Mahoney P) was considering matters relating to "public interest" under s 90(1) of the EP&A Act (now s 4.15(1)(e)), in the course of determining an appeal against a decision involving a development application, I do not consider that this reliance manifests the Registrar's misapplication (or misconstruction) of the question that arises under s 8.15(2)(b)(ii) of the EP&A Act. Having regard to the Registrar's reasons as a whole, it is clear that she relied upon Lovell to find that the matters sought to be raised by the Commonwealth were matters of 'public interest' in the context of these appeal proceedings such that it would be in the public interest to grant joinder.
CWO referred to a number of authorities where this Court has considered various factors weighing against joinder being "in the public interest" in the relevant sense, including, first, whether issues that the intervener proposed to be raised would be addressed in the decision-maker's (or Council's) case; second, whether submissions already made by the intervener would be considered by the Court without joinder; and third, whether meaningful assistance would be provided to the Court if the intervener was joined. CWO further submitted that a mere impact on a neighbour does not render joinder "in the public interest" where the applicable legislative scheme provides for community consultation and participation, and points to a number of other decided cases where the Court has not allowed interested neighbours and/or landowners to become a party to proceedings. While providing a helpful summary of the relevant matters to be considered in deciding whether to grant joinder, I find that these authorities do not exhaustively or conclusively define the matters to be taken into account under s 8.15(2)(b)(ii) of the EP&A Act. It is trite that each matter must be decided on its own case.
In circumstances where the question under s 8.15(2)(b)(ii) of the EP&A Act is not whether an intervener can raise an issue that is in the public interest, but whether it is in the public interest that the intervener be joined, although the Registrar's wording (particularly in [28]) is somewhat infelicitous, her reasons, read as a whole (and without a fine-tooth comb approach for error), and in particular her wording (in [26]), "[t]he second matter I must consider is whether it is in the public interest or the interests of justice for the Commonwealth to be joined…", indicate that the Registrar understood the essential questions to be addressed. Even if an error was made, and considering that the power to review is not subject to the restrictions that apply to an appeal, I have reconsidered the material, and I have independently formed the view that it is in the public interest that the Commonwealth be joined. On this basis, I do not consider the alleged error to be vitiating, or to require intervention beyond that which I find later in this judgment.
Secondly, irrespective of the nice distinction between whether the joinder is "in the public interest" as opposed to public interest under s 4.15(1)(e) of the EP&A Act which may have been of significance to the Registrar, I am of the opinion that, in any event, it is in the interests of justice that the Commonwealth be a party to the proceedings. To the extent necessary, I substitute my own discretionary decision for that of the Registrar. Apart from finding that the Registrar did not make any justiciable (or relevant) error of law, I repeat that I have formed this opinion on the basis of the further evidence marshalled on behalf of Council that it is not in a position to "advance" the issue, although, as I have noted above, I have some concern as to the evidence as to Council's resources to advance the issues dictating this concern. I also take into account the further evidence of the Commonwealth as to the nature and extent of the evidence the Commonwealth intends to marshal. In any event, I consider that the opinion of Council as to its resources and in relation to joinder, as the relevant local government authority, is not without some weight.
Further, while I accept CWO's submission that caution must be exercised to ensure that a local government authority does not "outsource" its statutory responsibility as a consent authority, I record Council's submission (which may or may not have been clear before the Registrar), that it effectively would not adduce (expert and other) evidence in relation to what is Council's Contention 1 - although noting, again as raised in CWO's submissions, that Council has not formally discarded Contention 1. This position now raises, if it had not been raised before, consideration of s 8.15(2)(a) of the EP&A Act. Put simply, as Council's solemn submission that it does not propose to duplicate submissions or evidence dealing with the subject matter raised by the Commonwealth; and that, if the order for joinder is maintained, it will not marshal evidence in relation to Contention 1, is in my view persuasive, and addresses, to some extent, any concern in relation to duplication (and the suggested "multiplicity") of experts, although I accept that the presence of a third party (even if there is no crossover of issues) will likely add to the time and cost of any appeal hearing.
Thirdly, CWO contended that the risks of serious injury and the like suggested in the Commonwealth's submissions are not supported by cogent evidence, I do not consider this submission compelling. While part of CWO's opposition to joinder before the Registrar, and in this review, is that the Commonwealth has not marshalled evidence that justifies the alleged potential impacts it seeks to raise in these appeal proceedings, and CWO's suggestion that all that is propounded by the Commonwealth are "bald assertions" that there is a risk, this Court is not presently concerned with the actual extent of any risk which is a merit matter for later consideration and this is not determinative in my consideration of the present motion for review. Despite this, there is presently evidence that the Commonwealth has now put forward that suggests that there is a serious threat to the surrounding community, and I find such evidence to be persuasive and sufficient to warrant joinder on public interest grounds.
Fourthly, I do not accept the submission made by CWO that, even if the Registrar was satisfied that it was in the public interest, the Registrar still had to exercise her discretion and that she failed to properly exercise this discretion, and therefore committed an error of law, in that she did not consider the "many discretionary factors" raised by CWO (these matters are summarised at [29] above) before making the order for joinder. Even if this was an error of law, which I do not find, this would be the type of error, being a failure to provide reasons, considered by Hodgson JA in Tomko at [8], (noted at [46] above). Despite this, I have considered each of these matters and I find, given the evidence now before the Court (particularly the identification of the witnesses to be called by the Commonwealth, and the nature of the evidence each will give; and clarification of Council's position) combined with my view that the Commonwealth should be confined to the discrete issue it desires to raise, appropriately addresses those "discretionary" matters raised by CWO to have been overlooked by the Registrar.
Finally, although CWO criticises the Registrar for failing to take into account other potential means of participation, again I do not consider this determinative, and while there are other modes of presence in a merit review appeal (as considered in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [196]-[197]), including by way of a "Double Bay Marina" order, or by the Court appointing a person as an amicus curiae, given my view that, as far as practical, the Commonwealth should be confined to its primary issue, I do not consider that either of these modes of presence to be appropriate.

Conclusion

For the above reasons, first, I do not consider that there has been either a misapplication or misconstruction of s 8.15(2)(b)(ii) of the EP&A Act; second, I do not consider that there has been a failure to address discretionary considerations or the overriding objective of a "just, quick and cheap" resolution of proceedings; and third, I do not consider that there has been a failure to address the appropriate scope of participation. These findings address the three primary contentions raised by CWO. Moreover, given the evidence now before the Court, in particular the attitude adopted by Council, I am of the view that the appropriate resolution of the motion for review is to uphold the order joining the Commonwealth to the proceedings and restricting the Commonwealth to the one (sole) contention in which it is primarily interested; and to note Council's position that it will not conduct itself in a manner that would duplicate the evidence and/or submissions involved in what is otherwise considered to be Contention 1.
Further, while I consider there is some strength in CWO's position that there was an absence of reasoning in relation to some of the conclusions of the Registrar's decision and this may amount to a failure to consider a number of the submissions, I do not consider this is determinative. In any event, I consider it appropriate to confirm the joinder of the Commonwealth to the proceedings with a review of the extent of the joinder in a matter similar to draft orders provided by CWO on 16 March 2023. I consider that this balances the interests of the parties and contributes to a just, quick and cheap resolution of the proceedings, and I am comfortable that the present formalised position of Council will avoid duplication, and the orders I intend to make prevent any expansion of the role of the Commonwealth without leave of the Court.
Finally, given the manner in which the application was conducted (in Class 1 of the Court's jurisdiction) and determined, I am of the view that there should be no order for costs of CWO's motion for review. However, as I have not heard argument in relation to costs, I direct that any application for costs be made within 14 days of the date of this judgment accompanied by written submissions limited to three pages, and that any submissions in response (also limited to three pages) be filed and served within a further 14 days, with the intention, subject to any further application, that any question of costs be dealt with on the papers.

Orders

The orders of the Court are: 1. The joinder of the Commonwealth of Australia as the second respondent to these proceedings is upheld. 2. The Court directs the Commonwealth of Australia to file and serve within 7 days an amended statement of facts and contentions in the proceedings: 1. limited to the matters identified in Contentions 1 and 2 (of the statement of facts and contentions being annexure A to the affidavit of Tim Hogan affirmed 19 January 2023; and 2. in which the contentions identified in Order 2(a) are confined to the impact of the proposed development on the Myambat Explosive Ordnance Depot and/or the impact of the Myambat Explosive Ordnance Depot on the proposed development. 1. Muswellbrook Shire Council is granted leave to file and serve a further amended statement of facts and contentions withdrawing Contention 1 within 7 days. 2. Any application for costs is to be made within 14 days of the date of this judgment.

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: 04 April 2023

(2021) 105 NSWLR 152

(2009) 168 LGERA 260

(2007) 159 LGERA 361

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