David Kettle Consulting v Gosford City Council

1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 David Kettle Consulting v Gosford City Council & Ors [2005] NSWLEC 519 CASES CITED: Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226

APPLICANT ON NOTICE OF MOTION (OBJECTOR) Mr T McLoughlin (as agent)

APPLICANT Mr N Eastman LEGAL REPRESENTATIVES: SOLICITOR Coca-Cola Amatil RESPONDENT Mr M Fraser SOLICITOR P J Donnellan & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10429 of 2005 David Kettle Consulting v Gosford City Council

JUDGMENT on Notice of Motion for joinder of party 1 Her Honour: Mr Diamond has filed a Notice of Motion seeking an order that he be joined as a party in this s 96 modification application, pursuant to s 39A of the Land and Environment Court Act 1979 (the Court Act). He was represented by his agent Mr McLoughlin in this Notice of Motion. An alternative order is sought if joinder as a party is refused and that is for participation in the hearing under a "Double Bay Marina" order pursuant to s 38(2) of the Court Act.

2 The s 96 modification application by Mr Kettle is to delete a condition imposed by Moore C when he granted development consent for the intensification of a groundwater extraction bottling operation at Euloo Road, Peats Ridge; David Kettle Consulting v Gosford City Council & Ors [2005] NSWLEC 519. The condition sought to be deleted requires a trial period for water extraction at a certain rate. The reason for the imposition is to determine if the aquifer can sustain a certain rate of extraction. The Council has filed its statement of facts and contentions and opposes the deletion of the trial period condition. A parties' single expert has been appointed to advise on the hydrology matters involved. Mr Diamond - Applicant on motion for joinder 3 A lengthy affidavit of Mr Diamond is relied on to support the motion for joinder. This affidavit is also intended to be evidence relied on in the substantive Class 1 hearing if the joinder application is successful.

4 Mr Diamond relies on s 39A(a) on the basis that he wishes to bring forward additional evidence on the desirability of enforcing the trial period in the condition because he does not consider the Council will do a sufficient job. He wishes to bring forward evidence in the form of several reports relevant to the consideration of the parties' single expert. Additional reports concerning reduction in the rainfall patterns in the area are also sought to be relied on.

5 An additional matter referred to is concern that a piece of evidence before Moore C referred to as the "green folder" is missing from the Council's file or from the offices of the Council's solicitors. A subpoena to locate that folder is intended to be issued if Mr Diamond is joined as a party. The Council's barrister advised that a search for the folder has taken place and it appears to be lost.

6 Mr Diamond also wishes to press for two new conditions. One is to ban the bulk export of water by truck from the site and one is to require rehabilitation of a nearby waterway.

7 Section 39A(b)(i) was also relied on, on the basis that it is in the interests of justice that Mr Diamond be joined. The Council substantially delayed notifying the objectors of the appeal as it should have until after the first callover in the matter (the Council admits this oversight). This resulted in a delayed application for joinder as a party so that Mr Diamond was not able to participate in the selection of the parties' single expert. While there is no intention to seek to have another parties' single expert selected a Sydney expert rather than one based in Melbourne would have been preferable. The impartiality of the expert should also be tested to see if he has done work for Coca Cola Amatil Pty Ltd which is the company behind the applicant for development.

8 Section 39A(b)(ii) was relied on, in that it is in the public interest for Mr Diamond to be joined as he acts in the public interest and has no personal interest at stake. His credentials in this regard are supported by the well regarded local group, the Mangrove Mountain District Community Group. Council 9 The Council opposes the joinder application. The Council will agree to tender to the Court all the documents which the Applicant wishes to rely on to the extent these are relevant. This applies to the material relevant to the condition sought to be deleted by the Applicant's s 96 modification application.

10 The Council is contesting the application to delete the condition requiring the testing. It is willing to call Mr Diamond as a witness in its case. It considers it will more than adequately deal with the issue which Mr Diamond also wishes to contest. 11 Objectors to development should not consider that they can continue their objections as a party. Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802 at [53] relied on.

12 The two new conditions sought to be imposed are irrelevant to the modification application and cannot arise for consideration in this s 96 modification application; see 1643 Pittwater Rd Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [51]. Applicant 13 The Applicant opposes the joinder application. The additional evidence sought to be relied upon can be provided to the parties' single expert in any event, and does not require joinder of Mr Diamond as a party. His interests are no different from those that will be represented by the Council. See Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226 per Lloyd J.

14 There is an issue of delay on Mr Diamond's part which is that there is no explanation why he did not appear before Moore C in the 2005 Class 1 hearing on the s 97 appeal when development consent was granted. 15 The power of the Court on a modification application to consider conditions other than those the subject of the modification is supported by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. Finding 16 In relation to s 39A(a) of the Court Act, there is no basis for finding that the Council will not deal sufficiently with the issue raised in the s 96 application concerning deletion of the condition requiring the test. The material relevant to this issue which Mr Diamond wishes to bring forward can be brought forward in the Council's case and he can be called as a witness by the Council. I can make directions to that effect as part of the case management of the matter. In terms of the modification application and opposition to the deletion of the condition in issue, I do not consider s 39A(a) is satisfied.

17 Development consent has been granted subject to conditions of consent including the condition sought to be deleted under this s 96 application. The ability of the Court to consider new conditions of consent beyond the condition which is the subject matter of the s 96 application is not completely unconfined but is nevertheless broad. Mason P (Sheppard AJA concurring, Stein JA dissenting on this point) adopted in obiter an expansive interpretation of s 102(3A) (predecessor to s 96(3)) in North Sydney Council v Michael Standley. In his analysis of Michael Standley McClellan J in 1643 Pittwater Rd Pty Ltd held at [51]: Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application. Accordingly, when an application to modify one aspect of a development is lodged, the consent authority must consider the matters under s 79C(1) relevant to the aspects of the development to which the application relates. Accordingly, if an application is made to modify the height of a building, consideration of any matter which is either directly or indirectly related to height will arise for consideration. If an application is made to change the approved colour of a building, matters relevant to colour must be considered. This could, in an unusual case, extend to the apparent height or bulk of the building. However, an application to change the colour of a building could not provide a basis to reconsider the provision of car parking for the development. The matter of car parking simply does not arise. I do not understand the President to be suggesting otherwise.

18 This finding supports a more expansive approach than was advocated by the Council and is also intended to encompass the wide interpretation of the Court's power in a modification application stated by Mason P in Michael Standley. I am reluctant on this joinder motion when the argument about issues is necessarily preliminary, to decide whether the two conditions sought to be raised by Mr Diamond, if joined in the proceedings, would be considered as appropriate by the Court. Based solely on the description provided by Mr Diamond's agent, the conditions appear unrelated to the condition which is sought to be deleted. Ultimately whether the conditions are appropriate in the context of the development consent will be a matter for the Commissioner determining the matter. I would prefer not to rule finally on this issue in the context of this application. 19 The desire of Mr Diamond to gain access to the Council's file in this matter is irrelevant to his motion for joinder. Similarly his desire to seek orders in relation to the "green folder" is also irrelevant to this joinder application.

20 The arguments put forward concerning the interests of justice and the public interest are not strong in the context of this application. Essentially claiming to act in the public interest and with community support does not on this occasion mean that Mr Diamond should be joined as a party. The failure of the Council to notify him of these proceedings in a timely manner does not give rise to any particular prejudice which is curable only by Mr Diamond being joined as a party. While he may have wished to challenge the selection of the Parties' single expert if he had been successful in being joined as a party earlier that alone is not a reason for joinder now. In any event no orders are intended to be sought in relation to the continuation of the parties' single expert now appointed by the Court. There was no procedural right of Mr Diamond to participate in the selection of the parties' single expert as asserted in his agent's written submissions. I note for completeness that I do to consider Mr Diamond has to explain why he did not participate in the s 97 appeal before Moore C.

21 Contrary to the submissions of Mr Diamond's agent there does not appear to be particular knowledge of Mr Diamond which supports his participation as a party. That he is well informed about the matters before the Court does not give rise to a particular knowledge as identified in Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293. As noted above the Council is willing through its case to provide relevant documents to the Court and Mr Diamond can give evidence through the Council.

22 The fact there is widespread public interest in the lack of sustainability of the bottled water industry as evidenced in newspaper articles alone are not sufficient grounds for joinder in the public interest contrary to the written submissions of Mr Diamond's agent. 23 I do not consider that Mr Diamond should be joined as a party. He has two additional conditions he wishes to put to the Court which the Council will not. Whether there is scope to impose these conditions in this modification application is not immediately apparent. Rather than prevent Mr Diamond from having any ability to present matters to the Court I consider I should make orders to enable him to participate in a confined way as provided for by a "Double Bay Marina" order under s 38(2) of the Court Act. That will be limited to providing evidence to support the additional conditions he wishes to seek and making submissions on these to the Court. Any matters concerning the deletion of the condition in issue must be presented through the Council. Orders to facilitate that occurring in an efficient and timely manner need to be considered including orders dealing with additional material to be presented to the parties' single expert as recently notified by the Applicant.

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