Hardie Holdings Pty Ltd v Cessnock City Council

Bongiorno Hawkins Frasetto Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 Michael Suttor Pty Limited t/as Michael Suttor Architects v Woollahra Municipal Council [2009] NSWLEC 148 Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361 CASES CITED: Smith v Wollondilly Shire Council and Sydney Catchment Authority [2004] NSWLEC 194 Sydney Legacy Appeals Fund v Tanna (1980) 48 LGRA 98 The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 Tomko v Palasty (No 2) (2007) NSWCA 71 NSWLR 61 Vanadi Pty Ltd v Leichhardt Council (1994) 85 LGERA 87

APPLICANT Ms A Pearman SOLICITORS Thompson Norrie LEGAL REPRESENTATIVES: RESPONDENT Mr P Arnold (solicitor) SOLICITORS Sparke Helmore Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10662 of 2009 Hardie Holdings Pty Ltd -v- Cessnock City Council

EX TEMPORE JUDGMENT Introduction and Issues 1 HER HONOUR: This is an application pursuant to Pt 49 r 49.19 of the Uniform Civil Procedure Rules 2005 ("the UCPR") to review the decision of the Assistant-Registrar handed down on 8 December 2009, refusing to join the Roads and Traffic Authority of New South Wales ("the RTA") as a party pursuant to s 39A of the Land and Environment Court Act 1979 ("the Act") in Class 1 proceedings in this Court. 2 In the alternative, the Assistant-Registrar permitted the RTA to appear pursuant to s 64(1) of the Act, the RTA being an emanation of the State Crown (it is not in dispute that the RTA is the Crown for the purpose of the provision: see s 46(2)(b) of the Transport Administration Act 1988).

3 It was argued by the RTA that this right of appearance gives rise to a subsidiary issue, namely, whether s 64(1) of the Act permits the RTA a right of intervention, rather than mere appearance, and thus entitles it to the full rights of a party, in particular, a right of appeal pursuant to s 57 of the Act.

4 For the reasons given below I have declined to exercise my discretion to join the RTA to the proceedings, thereby upholding the Assistant-Registrar's decision and dismissing the motion. I have also declined to order costs.

5 The development the subject of the Class 1 proceedings is described in the consent as a tourist and agricultural facility. It comprises a number of elements including a service station, take away shop, other shops, restaurants, markets, art centre and café.

6 At the date of the application the State Environmental Planning Policy (Infrastructure) 2007 ("the SEPP") applied in respect of the development. Clause 101 of the SEPP prohibits the grant of consent to any development fronting a classified road unless the consent authority is satisfied in certain respects, including that the "safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development".

7 The development application was forwarded to the RTA. Initially it opposed the development, but ultimately it consented to it subject to certain matters being included in the conditions of consent. This was provided for by Cessnock City Council ("the council").

8 The development was then the subject of a modification application. The RTA was consulted but it objected on the basis that the application sought to modify one of the conditions the RTA initially required to be included in the consent.

9 It is the deemed refusal by the council of the modification application that is currently the subject of the Class 1 appeal.

10 Broadly put, before the Assistant-Registrar the RTA applied to participate in the appeal primarily because of the impact of the development on Wine Country Drive, a classified road under the Roads Act 1993 (classified as a main road 220) and the consequential traffic arrangements the development necessitated which were to impact that road.

11 Pursuant to s 87 of the Roads Act, traffic control work can only be carried out by the RTA, or the roads authority, that is to say, the council, with the consent of the RTA. Pursuant to s 138 of the same Act, a person may not do certain things absent the consent of the council, including connecting a private road to a classified road, such as Wine Country Drive. The council cannot give such consent without the concurrence of the RTA.

12 The Assistant-Registrar refused to join the RTA as a party under s 39A of the Act because, first, she was not convinced that the RTA's concerns and objections would not be sufficiently put before the Court by the council, and second, the RTA had a right of appearance under s 64(1) of the Act pursuant to the power contained in s 46 of the Transport Administration Act 1988.

13 Section 39A of the Act states as follows: 39A Joinder of parties in certain appeals

On an appeal under section 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979 , 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. 14 Section 64 of the Act states as follows: 64 Appearance by the Crown

(1) The Crown may appear before the Court in any case in which the public interest or any right or interest of the Crown may be affected or involved. (2) Without affecting the generality of subsection (1), the Attorney General or the Minister for Planning and Environment, or both, may, at any stage of any proceedings before the Court, intervene by an Australian legal practitioner or an agent, and may examine witnesses and address the Court with respect to matters relevant to the proceedings. (3) Without affecting the generality of subsection (1), the Minister administering the Community Welfare Act 1987 may, at any stage of any proceedings before the Court in which an approved non-Government organisation within the meaning of that Act is a party, with the consent of that organisation, intervene by an Australian legal practitioner or an agent and may examine witnesses and address the Court with respect to matters relevant to the proceedings. 15 Section 57(1) states that an appeal may only take place in the following circumstances: 57 Class 1, 2 and 3 proceedings - appeals (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Supreme Court against an order or decision (including an interlocutory order or decision) of the Court on a question of law. Power of the Court on Review

16 The power of the Court to review a registrar's decision is located in r 49.19 of the UCPR, which apply to this Court. The power of review is different from an appeal and is not subject to the restrictions that usually apply to an appeal, such as the need to demonstrate an error of law (Tomko v Palasty (No 2) (2007) NSWCA 71 NSWLR 61 at [48] cited in Michael Suttor Pty Limited t/as Michael Suttor Architects v Woollahra Municipal Council [2009] NSWLEC 148 at [2] and [3]).

17 The review confers a broad discretion on the Court (Michael Suttor at [3]). There is an onus on the RTA in seeking to have the Court set aside or vary the Assistant-Registrar's decision to make a case that the Court, in the interests of justice, should exercise its discretion to do so.

18 The RTA contends that it ought to have been joined, notwithstanding the right of appearance it already has pursuant to s 64(1) of the Act because: (a) first, the central issue in the Class 1 proceedings concerns the traffic arrangements of the proposed development and the impact of the development on the classified road, Wine Country Drive. As the consent authority for the road, the RTA must be a party to the proceedings in order to ensure that it is bound by the decision of the Court;

(b) second, while the applicant is proposing to tender expert engineering traffic evidence, the council is not, and therefore, the RTA must joined in order to furnish the Court with appropriate evidence in this regard; and

(c) third, because of an ambiguity contained within s 64(1) as to whether the right of appearance pursuant to the section affords the RTA full rights as a party by way of intervention, including a right of appeal under s 57 of the Act, or some lesser status with diminished concomitant rights, the RTA should be joined as a party in order to accord it appeal rights should it be necessary to seek appellate review at a later date.

19 The applicant states in response that: (a) first, the council will more than adequately put before the Court the matters that the RTA seeks to agitate as it has done to date, for example, by ensuring that the matters concerning the RTA became conditions of consent and by way of inclusion in the council's statement of facts and contentions;

(b) second, to the extent that the council is not tendering expert evidence, it is relying on the evidence of the RTA, which the RTA is not precluded from adducing pursuant to its right of appearance under s 64(1) of the Act;

(c) third, other than possibly not having any rights of appeal because it may not under s 64(1) have the status of a party, the RTA will be able to fully participate in the Class 1 proceedings on any issue relevant to the appeal. Accordingly, joinder pursuant to s 39A is not necessary;

(d) fourth, even if s 64(1) does not confer the status of intervenor on the RTA together with all of the rights flowing from it, given that pursuant to s 57 of the Act a right of appeal only arises from an error of law, the council is equally placed to appeal should any such error arise; and

(e) fifth, this application is not a suitable vehicle in which to agitate any ambiguity within s 64(1) because no such relief has been sought in respect of this issue in the notice of motion and nor could it be absent the seeking of declaratory relief. Moreover, there is nothing precluding the RTA from raising this issue if it sought to exercise appeal rights at a later point in time.

20 I agree with the submissions of the RTA that s 64(1) of the Act does contain an ambiguity insofar as it suggests that a lesser form of status is conferred by the right of appearance granted by it (Sydney Legacy Appeals Fund v Tanna (1980) 48 LGRA 98 at 104). This suggestion is reinforced by the legislature's deliberate use of the word "intervene" in sub-s 64(2) and (3) in contradistinction to the language of 'appearance' in sub-s 64(1). Applying the canon of construction that an express reference to one matter indicates that other matters are excluded, especially given the particularity of the entities upon whom intervenor status has been expressly conferred in sub-s 64(2) and (3), there is a strong argument for construing s 64(1) of the Act as according some lesser panoply of rights than that of a party, which is usually not the case with intervenor status (Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 at 396).

21 Against this interpretation, however, is the Explanatory Memorandum to the Land and Environment Court Bill 1979 which states that "clause 76 [now s 64] allows the Crown to intervene" (emphasis added).

22 Curiously the issue has not been the subject of any prior decision of this Court. Rather it has been assumed, without the benefit of full argument, that the Crown's status under s 64(1) is that of an intervenor (see Vanadi Pty Ltd v Leichhardt Council (1994) 85 LGERA 87 at 91) and Smith v Wollondilly Shire Council and Sydney Catchment Authority [2004] NSWLEC 194 at [1] and [6]).

23 The issue, however interesting, neither need be nor cannot be determined by me today. I accept the submissions of the applicant that absent being specifically requested to declare that s 64(1) of the Act confers the status of intervenor on the Crown absent express words to this effect contained in the section, it is neither necessary nor desirable for me to decide the issue. Further, given that whatever the Court opines about this specific issue can only ever be obiter dicta, it is also not appropriate for this issue to be taken into consideration in determining the question of joinder under s 39A of the Act.

24 In addition, given that the RTA will not be precluded from agitating this issue at a later date if appellate review is undertaken by it, or by some other party, it will suffer no disadvantage by me leaving the issue to be determined to another day. In any event, I do not consider that any actual or potential lack of appeal rights under s 64(1) of the Act is a sufficient reason, without more, to warrant the RTA's joinder as a party to the proceedings under s 39A.

25 Section 39A provides for a two stage process before joinder can be permitted. First, the Court must be satisfied that the circumstances of sub-paragraphs (a) or (b) are met, and second, if they are, the Court must determine if it is appropriate to exercise its discretion to join the putative party (Bongiorno Hawkins Frasetto Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 at [6] and Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361 at [42] and [43]).

26 Even if the matters contained in either sub-paragraphs (a) or (b) could be met by the RTA, in my opinion, given the rights accorded to it under s 64(1) to fully participate in the appeal, rights that would not, by the RTA's proper and frank concession during the hearing of the motion, be augmented by joinder in these proceedings, as an exercise of my discretion I would not allow the joinder. Simply put, there is little, if anything, to be gained by it: the RTA has filed a statement of facts and contentions and has indicated a desire to adduce expert evidence on the matters central to the case, evidence which will be relied upon by the council thereby saving the parties costs and the Court time.

27 Further, I do not consider that, first, the issues raised by the RTA will not be adequately dealt with by the council. The council's statement of facts and contentions articulate the RTA's concerns as raised in the affidavit of Ms Natalie Vella of Blake Dawson, a solicitor employed by the solicitors of the RTA, affirmed on 2 December 2009.

28 Second, the bare fact that the appeal concerns a classified road of which the RTA is the consent authority with particular responsibilities under cl 101 of the SEPP is not, in my view, a sufficient basis upon which to join it as a party to the proceedings. Were this so, joinder would become all but automatic for the RTA in Class 1 proceedings involving classified roads. In any event, in my opinion, the RTA has not demonstrated that the council, as the road authority, will not adequately address the issue of traffic on Wine Country Drive, notwithstanding that it is a classified road. I accept the applicant's submissions in this respect.

29 I also consider that neither the interests of justice nor the public interest require joinder of the RTA to the proceedings. In addition to the reasons already expressed, the joinder would cause the proceedings to have a multiplicity of parties which will of itself necessarily lengthen the hearing and elevate costs thereby undermining "the overall objective of achieving the quick, just and cheap resolution of proceedings as described in [s 56 of] the Civil Procedure Act 2005" (The Sabian Mandaen Association at [18] and see s 58 of that Act). Moreover, the commissioner determining the appeal is required to consider the public interest pursuant to s 79C of the Environment Planning and Assessment Act 1979.

30 However, even if I am wrong in finding that the contentions sought to be raised by the RTA are not completely dealt with by the council, as Lloyd J stated in The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 (at [14]): 14 Even if I am wrong in finding that the contentions sought to be raised by Ms Butler are not all covered by the statement of facts and contentions raised by the Council, the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think to be sufficiently important does not automatically warrant an order for joinder under s 39A: see Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293 at [36] per Pain J. Moreover, it is not sufficient merely to establish the matters described in subs (a) and (b) of s 39A and the Court may consider the nature of the issues which an applicant for joinder seeks to raise in the context of the overriding objective of the quick, just and cheap resolution of the proceedings. Conclusion 31 For all of these reasons, I conclude that this is not a proper case to order the joinder of the RTA as a party to the proceedings. I therefore uphold the Assistant-Registrar's decision and dismiss the motion.

32 The applicant, Hardie Holdings Pty Ltd, having successfully opposed the application by the RTA for joinder seeks its costs. Although the Court has a discretion under s 98 of the Civil Procedure Act 2005 in relation to costs, such discretion is regulated by the Land and Environment Court Rules 2007. For Class 1 proceedings the relevant rule is Pt 3 r 3.7. That rule provides that no order for the payment of costs will be made unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable. As Preston J stated in relation to the operation of the now repealed but relevantly identical Pt 16 r 4(2) in Morrison Design (at [64]): [64] The structure of the rule is that the Court starts from the position that no order for the payment of costs will be made unless the Court forms the opinion of satisfaction that, in the circumstances of the particular case, it would be fair and reasonable to make a cost order. As to what constitutes fair and reasonable, see the Court of Appeal's recent decision in Port Stephens Council v Sansom (2007) 156 LGERA 125. 33 In the circumstances of this case, I do not consider that it is fair and reasonable to make an order for costs. The motion, although dismissed, was not without merit inasmuch as there were rational reasons the RTA put forward seeking to justify its joinder as a party. Further, there is no other conduct by the RTA which would otherwise suggest that a costs order was warranted.

34 The formal orders of the Court are therefore that the motion is dismissed with no orders as to costs.

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