Lahoud v Willoughby City Council

Introduction

1. These are judicial review proceedings commenced pursuant to the open standing provisions contained in s 9.45 of the Environmental Planning and Assessment Act 1979 (the EPA Act). This provision of the EPA Act permits any person or entity (here, Mr V Lahoud, the applicant in these proceedings - the Applicant) to seek to have the Court intervene to remedy or restrain a breach of the EPA Act.
2. The Applicant alleges that Willoughby City Council (the Council), in issuing a notice of determination granting development to Helm Pty Limited (the Company) for adaptive conversion of an existing building into shop top housing, including an additional level, at 131 Sailors Bay Road, Northbridge, had done so in circumstances where the process leading to the Willoughby Local Planning Panel (the Panel), making the merit decision on behalf of the Council concerning the proposed development, had committed vitiating errors in that process.
3. The Panel is not presently a party to the proceedings, but the Applicant, on 8 September 2022, filed a Notice of Motion seeking, amongst other things, that the Panel be joined as the Third Respondent to the Class 4 judicial review proceedings. Resolution of this aspect of the Applicant's Notice of Motion is dealt with by this judgment.
4. The substantive hearing of the Applicant's challenge to the Company's development consent is set down for four days commencing on 1 November 2022.
5. The Further Amended Summons (Judicial Review), filed on behalf of the Applicant on 10 March 2022, records the orders that are now sought in these Class 4 proceedings as being: 1 Declare that the decision to grant development consent was not validly made. 2 Order that the consent and any construction certificate issued with respect to the consent be set aside. 2A Order (on grounds referred to in paragraphs 8(e).16B, 17 or 26) that the development application be refused. 3 Costs.

Representation at the hearing for joinder

1. At the hearing on joinder held on 4 October 2022, the representation was: 1. Mr T Robertson SC and Mr D Robertson, barrister, for the Applicant; 2. Mr C Norton, barrister, by leave, for the Council - leave being necessary as the Council had filed a submitting appearance and also for the Panel; and 3. Mr H Grace, barrister, for the Company.

The joinder hearing

1. Although represented at the joinder hearing, the Company did not play any active part in these joinder proceedings.
2. The joinder hearing took half a day. Brief written submissions, and briefer written submissions in reply, were provided for the Applicant. More fulsome written submissions opposing joinder were provided for the Panel and the Council.

Introduction

1. Two provisions of the Uniform Civil Procedure Rules 2005 (the UCPR) arise as they are the two alternative bases upon which joinder of the Panel can potentially be founded.
2. A number of provisions of the EPA Act were raised in the submissions made on behalf of the Applicant and on behalf of the Panel and the Council.

The UCPR provisions

1. The first of the UCPR provisions requiring consideration is r 59.3(4), a special provision applying to joinder in judicial review proceedings (as is here the case with the Applicant's Class 4 proceedings). This rule in the following terms: 59.3 Commencement and parties (1) ... (2) ... (3) ... (4) The body or person responsible for a decision to be reviewed must be joined as a defendant, but not as the first defendant unless there is no other defendant.
2. The second of the provisions potentially requiring consideration is r 6.24(1), a rule in the following terms: 6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

The EPA Act

1. As I have concluded that the Panel should not be joined as the Third Respondent to the proceedings, it is not necessary to set out the detail of all the provisions of the EPA Act to which I was taken on behalf of the Council. It is sufficient, for present purposes, only to set out the terms the relevant portion of s 4.8 of the EPA Act. These are in the following terms: 4.8 Exercise of consent authority functions on behalf of councils where local planning panel constituted (1) This section applies in respect of an area of a council for which a local planning panel has been constituted. (2) The functions of a council as a consent authority in respect of any such area are not exercisable by the councillors. They are exercisable on behalf of the council by - (a) the local planning panel, or (b) an officer or employee of the council to whom the council delegates those functions.
2. As a consequence, it is also sufficient, for present purposes, to note that there is no functional contest as to the valid constituting of the Panel, or of its ability to exercise power standing in the shoes of the Council, to decide that the Company should be given a development consent for its proposed development.
3. There is also no contest that, the Panel having so concluded, the EPA Act required the Council to issue the notice of determination and its accompanying conditions of development consent to the Company.

The issues in dispute

1. The first issue in dispute, which requires consideration initially, is whether, for the purposes of the application of r 59.3(4) of the UCPR, the Panel or the Council is "responsible for the decision" which granted development consent to the Company for its proposed development. If a proper understanding of that provision is that the Panel is responsible for the decision, then it is mandatory that the Panel be joined as a party to the Applicant's Class 4 judicial review proceedings.
2. If it is the Council which is responsible for the decision, the mandatory joinder provision is satisfied as the Council is already the First Respondent to the proceedings.
3. However, such a position does not preclude joinder of the Panel, as it is also potentially possible that such joinder might be appropriate pursuant to r 6.24(1) of the UCPR, this being the general joinder provision permitting persons or entities to be made parties to proceedings if it is necessary that that occur. This basis for joinder is pressed by the Applicant as a fallback position, if not successful on a proper interpretation of r 59.3(4) of the UCPR. This is the second (contingent) issue for consideration.
4. Given that I have concluded that a proper understanding of r 59.3(4) is that the Council is responsible for the decision, it is also necessary to consider whether joinder pursuant to r 6.24(1) is appropriate.

Rule 59.3(4) mandates joinder

1. Meaning no disrespect to Mr Robertson, his written and oral submissions concerning r 59.3(4) can be summarised concisely and simply. The proposition he advances is that the Panel was vested by the EPA Act with the power to: 1. consider the merits of the Company's proposed development; 2. decide whether the proposed development warranted being approved; 3. determine what conditions should be imposed as part of the development consent if the project was to be approved; and 4. provide reasons in explaining why it had reached such a conclusion.
2. The Panel had fulfilled all those elements of its functions and was, therefore, responsible for the decision it made (being the decision and accompanying reasons).
3. This meant that the Panel was the body responsible for the decision and, therefore, was mandated to be joined as a party to the proceedings by operation of r 59.3(4) of the UCPR.
4. This, as I understood his submission, did not require reading in any additional words into the rule, because an ordinary English reading of the provision mandated that the propositions he advanced evidenced the only proper way to construe the provision.
5. I also observe that Mr Robertson had provided a copy of the Minister's Second Reading Speech (Legislative Assembly Hansard - 8 August 2017) on the introduction of the Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017 as reinforcing the independence of the roles of local planning panels. I do not understand that the Council questions the independence of this Panel.

Rule 6.24(1) - the alternative path for joinder

1. It is sufficient to note that Mr Robertson also relied on r 6.24(1) of the UCPR as a basis for joining the Panel if I was to hold that joinder pursuant to r 59.3(4) was not necessary. His written submissions, on the question of necessity, proposed that: … it is useful to look at the authorities on the application of the second limb in this rule [referring to rule 6.24]. Those authorities suggest that is not just the central issues in the case that attract joinder but rather all issues that may arise, which would include, for example, the need to interrogate to establish the basis for the decision or the matters taken into account in making the decision [citing the reasoning of Glass JA in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSLWR 34].
2. The written submissions then continued, in paragraph 11, in the following terms: The panel should be joined, because it should have been joined when the proceedings were commenced under r 59.3(4). It should also be joined so as to be bound by the results of the case, and to answer interrogatories about its decision. One effect of success would be to set aside the development consent, leaving on foot the development application before the Panel. It is necessary to bind the Panel in its redetermination of the application, with which Council cannot interfere.
3. The Applicant's submissions in reply, relevant to the question of whether or not r 6.24(1) of the UCPR requires joinder of the Panel said, relevantly, at paragraph 5 (including the flourish of a rhetorical question): 5 As the Council cannot direct the Panel, if its decision has been vitiated, the fact that the Council is bound by the result does not bind the panel. Can Council direct the Panel to re‑determine the DA according to law?

Introduction

1. Mr Norton's written submissions, at paragraph 19, summarised (accurately in my view) the bases upon which the Applicant seeks that the Panel be joined as the Third Respondent to these proceedings. This paragraph of his submissions is in the following terms: 19. The Applicant's written submissions state that the Panel should be joined for three reasons (see A Subs [11]): a. the Panel should have been joined when the proceedings were commenced under UCPR r 59.3(4); b. the Panel should be joined so the Panel is bound by the result of the case; and c. the Panel should be bound to answer interrogatories about its decision.

Is joinder mandated by r 59.3(4)?

1. I turn, first, to summarise Mr Norton's submissions concerning the first of the propositions advanced on behalf of the Applicant, namely, that r 59.3(4) of the UCPR mandates the joinder of the Panel.
2. Mr Norton took me through all the relevant provisions of the EPA Act that apply to panels such as the Panel. This included how the Panel was established; how it stood in the shoes of the Council for the purposes of deciding development applications which fell within its purview; and, particularly, the broader process (which included the Panel) by which development applications were determined. In this latter regard, Mr Norton took me to s 4.8 of the EPA Act, a provision that made it clear that development applications lodged with the Council were to be determined by the Panel or, if they were not ones to be determined by the Panel, were to be determined by an officer of the Council to whom the power to determine such applications had been delegated.
3. In either instance, as I understood his submission, the Council was responsible for decisions made by both the Panel and any officer to whom such determinations were delegated. In part, this was because the formal notice of determination was issued in the name of the Council and, in part, because, to the extent that there were consequential obligations imposed arising from such a determination (whether made by the Panel or by an officer of the Council), those obligations fell on the Council for all relevant purposes, making it responsible for all such decisions, whether those of the Panel or of a delegated officer.
4. Mr Norton drew particular attention, as well, to the fact that local panels (as is here the position) differ in a significant statutory respect from other bodies such as the Independent Planning Commission or regional planning panels to whom various decision‑making powers concerning proposed developments are delegated. This distinction, as I understood him, makes it clear that those delegated bodies (other than local planning panels) did fall within the scope of r 59.3(4) of the UCPR, and invariably were made a party to the proceedings for that reason.

Is joinder of the Panel necessary in the sense addressed in r 6.24(1) of the UCPR?

1. Given the conclusion which I have reached in this regard for the reasons later explained, it is unnecessary to set out the compendious and helpful submissions which Mr Norton made on this point.

Introduction

1. I turn first to consider whether r 59.3(4) mandates joinder of the Panel. If the Panel is not mandated to be joined, only then does consideration of r 6.24(1) arise for consideration.

The operation of r 59.3(4)

1. It is appropriate to note that the ordinary principles of statutory construction for considering the text of r 59.3(4) are engaged for my assessment of whether the case advanced for the Applicant establishes that the test there posed is satisfied. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [70] and [71], made it clear that the meaning of the provisions of a statute (or here, statutory rule) is to be ascertained by examining the language of the rule and seeking to give effect to its purpose.
2. The High Court has said that it is permissible to read additional words into a statutory rule (see Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9) if it is necessary to do so to enable giving full effect to the operation of the rule. What might here be necessary that would require such an importation of additional words differs between the Applicant's case and that of the Council.
3. Whilst Mr Robertson resisted the necessity to read any additional words into r 59.3(4) to reach the conclusion for which he advocates, I am not satisfied that this is the correct position. Effectively, the position for which Mr Robertson advocates is one which would have the rule read: (4) The body or person responsible [making] for a decision to be reviewed.
4. The insertion of the word "making" would be necessary to distinguish it from the version of the rule, that would correctly reflect its intention, on Mr Norton's case. This version of the rule would read: (4) The body or person responsible for [giving effect to and administering] a decision to be reviewed.
5. Decision‑making bodies, whose decisions are subject to judicial review proceedings such as these, usually file submitting appearances and play no active role in the hearing and determination of the proceedings for the most part, and the active respondent (here the Company) takes the positive role of being the contradictor to the case advanced on behalf of the applicant for judicial review. Occasionally, this will mean that there is no active contradictor (unless, as was the position I was required to address in KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38, some additional individual or entity seeks actively to be joined to the proceedings to play that role). To the extent that, from time to time, such a decision‑making body does participate in the proceedings, that role is in the circumscribed fashion addressed by the High Court in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 (Hardiman).
6. The constraints imposed by the High Court in Hardiman, as to the extremely limited circumstances in which the statutory decision‑maker should take part in judicial review proceedings, were described by the High Court, at [54], in the following terms: 54 There is one final matter. Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.
7. The body which fits this confined procedural role, in the present context, is the Council. This is because it is responsible for all relevant functional activities arising from the Panel's decision and not for the merits of the Panel's decision. To seek to serve interrogatories on the Panel would, even if it did not appear and take any active part, require it to take a role significantly outside that rendered appropriate by Hardiman. This would necessitate matters potentially going to the merits of the Panel's decision in a fashion not contemplated by Hardiman.
8. As a consequence, the necessary outcome of the Applicant's seeking to join the Panel to these proceedings pursuant to r 59.3 (4) is that the Panel is not to be joined as a respondent to these proceedings.
9. It therefore follows that the proposition that r 59.3(4) mandates the joinder of the Panel must be rejected.

Is it necessary that the Panel be joined as a party?

1. As earlier noted, the basis upon which the Applicant seeks to have, in the alternative, the Panel joined as a party pursuant to r 6.24(1) of the UCPR is because it is "necessary" that the Panel should be joined so as to ensure that the Panel is bound by any orders that might be made arising out of the substantial hearing of the matters raised in the Applicant's Further Amended Summons filed on 10 March 2022.
2. Whilst it is true that the decision in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 (Ross v Lane Cove) mandates that an individual or entity be joined if that individual or entity is directly affected by any mandatory injunctive relief sought by the Applicant in any proceedings (per Leeming JA at [49]), that proposition has no relevance to these proceedings. This is because the orders sought in the Applicant's Further Amended Summons (earlier set out at [5]) do not seek any order that mandates any future course of conduct on behalf of the Panel, nor does it interfere, in any fashion, with the rights or obligations of the Panel. Indeed, Order 2A seeks to have the Company's development application refused by this Court as an outcome of these Class 4 proceedings without the development application reverting to the Panel for reconsideration and redetermination.
3. Under those circumstances, that which is sought by the Applicant in these proceedings expressly excludes any future activity by the Panel concerning the Company's development application.
4. The necessary consequence of that is that Ross v Lane Cove creates absolutely no basis why it would be necessary to join the Panel as the Third Respondent to the proceedings.
5. It is also to be noted that r 6.24 (1) of the UCPR is also sought to be invoked by the Applicant for the subsidiary purpose of enabling interrogatories to be served on the Panel to require it to respond to matters raised by the Applicant in the grounds pleaded in support of the orders sought in the Further Amended Summons.
6. I have carefully read all the detailed grounds upon which the Applicant relies for the purposes of seeking the orders earlier set out (and as set out in the Further Amended Summons).
7. To the extent that those grounds plead matters of substance (and I accept that they are potentially matters giving rise to matters of substance - detailed consideration of these must await the trial), I am not satisfied that any of the grounds as pleaded provide any proper basis for me to exercise, as a matter of discretion, the power of joinder pursuant to r 6.24(1). This is because I am not satisfied that any material which might be provided by the Panel, or any of its members, if interrogatories were permitted, would be necessary to advance consideration at trial of any of the matters pleaded in the grounds set out in support of the Applicant's Further Amended Summons.
8. Under the circumstances, I am satisfied that the Panel should not be joined as a party pursuant to r 6.24(1) of the UCPR.

Costs

1. In Class 4, costs follow the event. Thus, the Applicant is to pay the First Respondent's costs of the application for joinder as agreed or assessed.

Orders

1. The orders of the Court are: 1. The application pursuant to r 59.3(4) of the Uniform Civil Procedure Rules 2005 to join the Willoughby Local Planning Panel as Third Respondent to these proceedings is rejected; 2. The application pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 to join the Willoughby Local Planning Panel as Third Respondent to these proceedings is rejected; 3. The Applicant is to pay the First Respondent's costs of the application for joinder as agreed or assessed; and 4. The exhibits on the motion are returned.

Amendments 19 October 2022 - Order (3) amended according to the Slip Rule on 19 October 2022, to amend Second Respondent to read First Respondent.

[53(3)] The Applicant is to pay the First Respondent's costs of the application for joinder as agreed or assessed; and

Additional amendments made, also pursuant to the Slip Rule, at 'Representation', [6(2)], [17] and [52]. 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: 19 October 2022