Viva Energy Australia Pty Limited ('Viva'), by Notice of Motion filed on 5 October 2017, seeks an order that it be joined as a respondent to these Class 1 proceedings instituted by Jomasa Pty Limited ('Jomasa') in respect of the refusal of the City of Ryde Council ('Council') to approve its proposed stormwater drainage works and, accordingly, issue an occupation certificate for its site at 146 Bowden Street, Meadowbank ('the Site').
The Motion is opposed by Jomasa, the Applicant in the substantive proceedings, and is supported by the Council.
For the reasons set out below, I grant leave for Viva to be joined as the second respondent to the substantive proceedings.
[2]
Background
Viva was previously known as The Shell Oil Company of Australia.
Viva is the owner and operator of the Gore Bay Oil Pipeline ('the Pipeline') which carries diesel, marine fuel oil, jet fuel and gasoline from Viva's Gore Bay Terminal to the Clyde Terminal in Rosehill.
The Pipeline has been operational since approximately 1962.
The Pipeline is located underground and is approximately 19km long and passes through the Site the subject of these proceedings within an easement burdening the Site and created by instrument DP 268477, of which Viva is the beneficiary ('the Easement').
As owner of the Pipeline, Viva has statutory obligations and responsibilities to ensure the safe operation and continued maintenance of the Pipeline.
On 21 April 2009, the Council granted development consent to development application LDA2008/0729 for a five storey residential flat building, consisting of 61 residential dwellings with 4 000m² of basement car parking ('the Consent').
The first condition of the Consent requires the development to be carried out in accordance with the approved plans, which include concept plans for stormwater drainage, prepared by Cardno Willing and dated 6 March 2009.
The Consent provides specific design criteria for stormwater drainage works on the Site, subject to the developer bearing all costs associated with the "approval and relocation of any utility services, including the Shell [Viva] oil pipeline."
On 22 August 2017, Jomasa provided the Council with detailed engineering drawings for the stormwater drainage works pursuant to the Consent, which were rejected by Council and are now the subject of appeal in the substantive proceedings.
The stormwater drainage works the subject of this appeal are proposed to be carried out in the Easement. Viva contends that those stormwater drainage works are unacceptable due to insufficient information being provided as to the impact of those works on the integrity of its Pipeline.
[3]
The statutory power to order joinder
The Court has power to make an order for joinder pursuant to s 39A of the Land and Environment Court Act 1979 ('Court Act'). Section 39A states:
"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."
At the hearing of this Motion, Viva submitted that it be joined on all three bases, being that it is:
1. able to raise an issue that would not be adequately dealt with if I do not to make an order for joinder;
2. in the interests of justice; and
3. in the public interest.
It is well established that the exercise of the power pursuant to s 39A of the Court Act involves two steps. The first step is that the Court is satisfied that one of the three limbs within s 39A has been satisfied. The second step is whether, in all of the circumstances of the application, the Court is satisfied that it ought to exercise its discretion to order a joinder.
The questions for my consideration are, firstly, whether there is any issue identified by Viva that ought to be raised in the proceedings that would not be adequately dealt with if I do not to make an order for joinder. The second question in this case is whether it is in the interests of justice or the public interest that I make an order for joinder. The third question concerns whether, if I am satisfied that any one of the limbs within s 39A has been satisfied, I ought to exercise my discretion in favour of making the order for joinder.
[4]
Has Viva identified an issue that ought to be raised in the proceedings that will not be adequately dealt with if I do not to make an order for joinder?
At this point it is useful to consider Council's contentions as part of the first test under s 39A of the Court Act.
In respect of the Pipeline and the Easement, Council's Statement of Facts and Contentions relevantly state:
1(e) "The proposed stormwater design does not demonstrate how it can cross the oil pipeline easement without compromising the integrity of the oil pipeline."
1(f) "Approval from the owners of the oil pipeline for the works pursuant and consequential to the proposed drawings for stormwater drainage has not been provided."
It was submitted by Jomasa, and I readily accept, that issues regarding the Pipeline and the Easement have been clearly raised by the Council in its Statement of Facts and Contentions. However, I am not satisfied that the first test for joinder fails simply because relevant issues regarding the Pipeline and the Easement have been raised in these proceedings.
It is also relevant as to whether those issues are able to be sufficiently addressed by the parties. Council submitted that it has no expertise in respect of the Pipeline. Jomasa submitted that Viva has the ability to participate in the proceedings as an objector and, if further evidence regarding the Pipeline or the Easement were required to be adduced, then Council could call Viva as a witness or engage one of its employees as an expert to provide expert evidence.
However, I am not satisfied that limiting Viva's participation in the proceedings to either an objector or a witness would assist the Court and ensure that all relevant matters would be before the Court for its consideration: Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195.
Viva is the owner of the Pipeline and the beneficiary of the Easement. As a party to the proceedings Viva would be able to put forward its own contentions regarding the construction of the proposed stormwater drainage works within the Easement and the impact of such works on its Pipeline. It would also be able to support those contentions with its own evidence and would also have the opportunity to reply to and test the evidence put forward by Jomasa, as well as participate in the conciliation conference.
It was observed by McHugh JA in State of Victoria v Sutton (1998) 195 CLR 291 at [77] that:
"a person [ought be required] to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order".
Relying on this observation, Viva submitted that as its property rights and its statutory responsibilities for the maintenance and safety of the Pipeline will likely be impacted by the stormwater drainage works proposed to be carried out in the Easement, it is appropriate for it to be joined as a party.
Furthermore, it is the uncontested evidence of Viva that all engineering expertise concerning the Pipeline resides with it and that no evidence has been provided by Jomasa as to how it proposes to carry out works in the Easement and maintain the integrity of the Pipeline.
As such, I accept that without Viva being joined to the proceedings, the proposed stormwater drainage works to be carried out in the Easement and the impacts of those works on the Pipeline will not be adequately addressed in the substantive proceedings.
[5]
Is it in the interests of justice or the public interest for Viva to be joined to the proceedings?
It is also Viva's submission that it is in the interests of justice and the public interest for it to be joined, given its ownership of the pipeline, its specialist and unique knowledge in relation to the engineering and safety features associated with the pipeline, and in particular the risks associated with its operation and maintenance.
However, having already found that one limb under the three part test set out in s 39A is satisfied, I do not need to consider this and will instead turn to whether the exercise the discretion under s 39A to allow joinder
[6]
Should the discretion be exercised?
I am satisfied that, in order for all relevant matters to be before the Court for its consideration, it is appropriate for me to exercise my discretion to join Viva to the proceedings as the second respondent to the proceedings: Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195.
[7]
Orders
The orders of the Court are:
1. Viva Energy Australia Pty Limited is joined as the second respondent to these proceedings.
Sarah Froh
Registrar of the Land and Environment Court of NSW
[8]
Amendments
13 November 2017 - Cover page amended to list correct representation.
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Decision last updated: 13 November 2017