M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council

Land and Environment Court (NSW)|2018-04-19|Before: Molesworth AJ

Solicitors: Unrepresented (Intervener) Bradley Allen Love Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/7966

Gundagai Community Environmental Impact Group seeks to be heard

On 29 March 2018, by Notice of Motion, the Gundagai Community Environmental Impact Group (GCEIG) sought orders of this Court to be heard - but not joined as a party - at the hearing and conciliation conference of a Class 1 development appeal.
GCEIG is a not-for-profit, 'grass-roots' community based group consisting of about 40 members. It was registered as an incorporated association in March 2016. In its documentation it states that GCEIG was "established to protect and enhance the environmental, social and economic wellbeing of the Gundagai and District community, particularly as regards land, water, property assets and social fabric".
Specifically, GCEIG sought two primary orders: 1. "That the Applicant on the motion be heard at the hearing of the appeal, under section 8.12 of the Environmental Planning and Assessment Act 1979 (NSW)" - (Order 1); and 2. "That the Applicant on the motion be heard at the conciliation conference fixed for 11 May 2018 in this appeal" - (Order 2).
For the reasons set out below, with respect to Order 1, consented to by both parties, I have decided to make that order, considering it appropriate to do so.

Relevant background to the Motion

The Class 1 proceedings in question concern an application made by the Applicant in relation to the decision of the Southern Joint Regional Planning Panel (the JRPP) to refuse the Applicant's development application (DA/242/2017) for the expansion of an existing solid waste, non-putrescible, landfill at lots 472 and 502 DP 751421 and Lots 2 DP 111917, 303 Burra Road, Gundagai (the Proposal). The Respondent Council is the relevant public authority to defend the decision of the JRPP in this matter.
The Proposal, as a waste management facility, is a designated development pursuant to Sch 3 of the Environmental Planning and Assessment Regulation 2000.

GCEIG is represented by its agent Mr Giblin

At the hearing of the Motion, GCEIG was not legally represented. However, Mr Warwick Giblin, an environmental consultant engaged by GCEIG, sought the leave of the Court, under r 7.7 of the Land and Environment Court Rules 2007 (LEC Rules) to appear as agent for GCEIG for the purposes of the Motion and the Class 1 proceedings. This request was not opposed by the Applicant or Respondent Council.
In support of this request, Mr Giblin handed up three documents: 1. Exhibit A - A letter dated 17 April 2018 from Mr Giblin to Ms Hawthorne of GCEIG, confirming instructions to act as agent in the proceedings, and that Mr Giblin would seek the leave of the Court to appear as such at the hearing of the Motion. This letter also set out the matters at r 7.7(1), as required by that rule. An acknowledgment of and agreement to the matters set out by Mr Giblin, including those matters set out at r 7.7(1) of the LEC Rules, was signed by Ms Hawthorne on behalf of GCEIG on 18 April 2017 and was attached to this letter. 2. Exhibit B - A letter from Mr Giblin to the Court dated 17 April 2018 enclosing the above letter of the same date. 3. Exhibit C - A letter from Mr Giblin to the Court dated 14 April 2018 seeking leave to participate as agent for GCEIG in relation to both the Motion and the Class 1 proceedings (including at the conciliation conference). Importantly, this letter specifically requested that Mr Giblin, on behalf of GCEIG, participate in both stages of the conciliation conference - that is, both the site inspection and the subsequent discussions facilitated by a commissioner. Mr Giblin noted that "GCEIG seeks my participation in the latter discussions facilitated by the Commissioner because that dialogue is likely to be vitally important in determining future moves in the case. Furthermore, as a key, public interest stakeholder that has invested much in the matter, the GCEIG would very much like to be involved". The letter set out, at Attachment 1, Mr Giblin's credentials in waste management matters.
I was satisfied by this documentation that, in accordance with s 63(3) of the Land and Environment Court Act 1979 (LEC Act), Mr Giblin had provided GCEIG with the information required by the rules and that granting leave for GCEIG to appear by Mr Giblin as its agent was in the best interests of GCEIG. As such, I granted the requested leave to appear by agent.

Relevant statutory provisions

By way of background, there are a number of pathways by which a non-party to proceedings can be heard: 1. an order made under s 8.12 of the Environmental Planning and Assessment Act 1979 (EPA Act); 2. being joined as a party to the proceedings under s 8.15 of the EPA Act; 3. the Court exercising its power under s 38(2) of the LEC Act to inform itself of relevant matters (a Double Bay Marina order).
However, it is less clear whether such pathways exist for a non-party to formally participate in a conciliation conference held pursuant to s 34 of the LEC Act.
The power for the Court to order that a non-party be heard in connection to proceedings (commonly known as a 'Double Bay Marina order' due to its nascence in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313) is found in s 38(2) of the LEC Act, which provides: 38 Procedure … (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. …
The EPA Act provides, at s 8.12, a right to objectors (in respect of, for instance, designated developments) to be heard by the Court at the hearing of an appeal: 8.12 Notice of appeals to be given and right to be heard (cf previous s 97A) (1) The following are entitled to be given notice of an appeal made under this Division: (a) an objector, in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division, (b) an applicant for development consent and the consent authority, in the case of an appeal under this Division by an objector concerning the application for development consent, (c) a Minister or public authority, in the case of an appeal concerning an application for development consent in respect of which the concurrence of the Minister or public authority is required under this Act, (d) the relevant approval body (within the meaning of Division 4.8), in the case of an application for development consent that involves the approval body. (2) Any such notice of appeal is to be given by the relevant consent authority. (3) Anyone who is given any such notice of appeal is, on application to the Court within 28 days after the notice is given, entitled to be heard at the hearing of the appeal if not already a party to the proceedings. (4) In this section, a reference to an application for development consent includes an application to modify a development consent.
The equivalent provision under the previous iteration of the EPA Act was s 97A, which read: 97A Notice of appeals to be given and right to be heard (1) The consent authority must give notice of an appeal under section 97, 97AA or 98: (a) to an objector, in the case of an appeal concerning a development application in respect of which the objector may appeal under section 98, or (b) to the relevant Minister or public authority, in the case of an appeal concerning a development application in relation to which the concurrence of a Minister or public authority is required under this Act, or (c) to the relevant approval body (within the meaning of Division 5), in the case of a development application to carry out integrated development that involves the approval body. (2) A council must give notice to a regional panel of any appeal under section 97, 97AA or 98 in respect of a determination made by the panel or that may be reviewed by the panel under this Act. (3) A council must give notice to the Planning Assessment Commission of any appeal under section 97, 97AA or 98 in respect of a determination made by the Commission or that may be reviewed by the Commission under this Act. (4) A person or body who is given notice of an appeal under this section is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if the person or body were a party to the appeal.
Relevantly, it is to be noted that the words "as if the person or body were a party to the appeal", which were in the former s 97A(4), have now gone and been replaced with the words "if not already a party to the proceedings" in the new s 8.12(3). The implications of that statutory change, are examined below.
Section 8.15 of the EPA Act now deals with the joinder of a party to proceedings (whereas this was previously contained within s 39A of the LEC Act): 8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act) (1) Separate appeals under this Division with respect to the determination of an application for development consent are, as far as practicable, to be heard together. (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. (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies. (4) If the determination or decision appealed against under this Division was made by a Sydney district or regional planning panel or a local planning panel, the council for the area concerned is to be the respondent to the appeal but is subject to the control and direction of the panel in connection with the conduct of the appeal. The council is to give notice of the appeal to the panel. (5) If the Minister exercised the functions of the council as consent authority (for Crown development) in respect of a determination or decision appealed against under this Division, the council is to be the respondent to the appeal but is subject to the control and direction of the Minister in connection with the conduct of the appeal. The council is to give notice of the appeal to the Minister.
It is pertinent here to set out, by way of context, the procedure followed by the Court in conferences held pursuant to s 34 of the LEC Act, which provides: 34 Conciliation conferences (1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court: (a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and (b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference. (1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference. (2) A conciliation conference is to be presided over by a single Commissioner. (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner: (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. (4) If no such agreement is reached, the Commissioner must terminate the conciliation conference and: (a) unless the parties consent under paragraph (b), must make a written report to the Court: (i) stating that no such agreement has been reached and that the conciliation conference has been terminated, and (ii) setting out what in the Commissioner's view are the issues in dispute between the parties, or (b) if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings: (i) following a hearing, whether held forthwith or later, or (ii) with the consent of the parties, on the basis of what has occurred at the conciliation conference. (5) The Commissioner, when giving his or her decision under subsection (4)(b), is to give reasons for the decision: (a) in writing, or (b) orally and recorded by means that can be reproduced. (6) If satisfied that there is a good reason to do so, the Commissioner may adjourn the conciliation conference to a time and place fixed in consultation with the Registrar. (7) Subject to this Act and the rules, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to subsection (3) or (4) (b) has and may exercise the functions of the Court. (8) The decision of the Commissioner under subsection (3) or (4) (b) is taken to be the decision of the Court. (9) If a report is made to the Court under subsection (4) (a), it must, as soon as practicable, furnish a copy of the report to each of the parties. (10) If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement. (10A) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to: (a) a conciliation conference, and (b) a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged. (10B) The privilege conferred by subsection (10A) extends only to a publication made: (a) at a conciliation conference, or (b) in a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged. (11) Subject to subsections (10) and (12): (a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and (b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body. (12) Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document. (13) The Commissioner presiding over a conference under this section in relation to any proceedings is disqualified from further participation in those proceedings, unless the parties otherwise agree. (14) Unless otherwise directed by the Chief Judge, the Registrar may preside over a conference under this section and, in that event, a reference in this section to a Commissioner includes a reference to the Registrar.
These s 34 conferences are conducted in accordance with the Conciliation Conference Policy (the Policy) (as required by the Court's Class 1 Development Appeals Practice Note at [46]), which provides for a 'two stage' conference. The first stage is a site inspection, at which resident and other "non-expert participants" may make submissions on-site. The Policy, relevantly, sets out the following with respect to such submissions: Resident and other lay submissions 10. The council and the applicant are to prepare a list of local residents and other non-expert participants who they wish to ask to make submissions onsite. This list is to be filed in the Court and served on the other party seven days prior to the hearing. The list should include any reference to relevant written submissions each person made to the council and contained in any documents to be discussed during the conciliation phase or proposed to be tendered as part of the proceedings if the matter proceeds to determination. If no submission has been made to the council, a brief summary of the submission that is expected to be given is to be provided, preferably prior to the site inspection. 11. A person making a submission is to provide their full name and address when speaking on-site. To provide for the "just, quick and cheap" disposal of the proceedings, the number of persons speaking on-site should be limited. In most circumstances, a maximum of six persons should be asked to make a submission on-site. It is sufficient for only one person per household to make a submission to the Court. Preference should be given to those residents directly affected by a proposed development, such as those living adjoining or directly opposite the site of the development. If there are contentions that extend beyond the immediate area of the site, such as impacts on the character of the area or wider traffic implications, then a representative person raising this contention should make a submission onsite. 12. The council is to ensure that: • People who made submissions to the council are advised of the time of the site inspection so they have the opportunity to ask the council if they can make a submission on-site for consideration by the parties during the conciliation phase. • People who made submissions to the council are also advised that, at the conclusion of any submissions made on site, the parties will be undertaking confidential conciliation discussions facilitated by the Commissioner and that participation in those discussions is limited to the parties (including their legal representatives and experts). • People who made submissions to the council have a full understanding of the proposal (including recent amendments) so that any concerns expressed on-site are relevant. • Proposed submitters understand their obligation to the Court is to provide their submission in a truthful and helpful manner as it may subsequently become evidence. • Proposed submitters understand that while their submission is to be given on-site, if their submission becomes evidence, it will have the same effect as if it was given in a courtroom. • Where written submissions have been prepared, on-site oral submissions should address only the main points of concern. The full text of the submissions can be made available during the conciliation phase and subsequently tendered by the council as part of any determination phase of the proceedings. • Where a written submission has been prepared and submitted to the council by a person on behalf of the owner of a property, such as an architect or town planner, that person may address the Court on the contents of the written submission. Such submissions are not expert evidence in the proceedings. • Where one specific issue has been addressed in detail by one submitter, it is not necessary for each subsequent submitter to address in full the same issue. It is sufficient if the subsequent submitters acknowledge that they hold similar views to any previous submitter who has spoken on that issue. • When people are making their submissions, there should be no interruptions or interjections so that those attending the site inspection can fully understand the matters raised by the submitter. • The lay submitters understand that their opportunity to speak is limited to their formal presentation and it is not appropriate that further comments be made during the site inspection unless requested by the Commissioner, agreed by the parties or as part of an explanation of their submission, for example, from their property if their submission was made elsewhere. • The submitters understand that they may be questioned on their submission. • The council has the contact details of any submitter who has expressed interest in attending any hearing that may be held if the conciliation conference is terminated, so that the council can contact those persons advising them of the time and venue of the hearing. 13. An applicant who proposes to ask local residents or other non-expert participants to speak on site is to ensure that it and those persons also comply with the requirements of paragraph 10. 14. Where submitters speak on-site (or at an alternative location if required), notes are to be taken by each party or their legal representatives or agents and an agreed summary can be tendered to the Court in the event the matter proceeds to hearing and the parties consent to the Court determining the matter on the basis of the submissions made on site at the conciliation conference.
As is evident from item 12 of the Policy, following the site inspection and on-site oral submissions, the parties undertake confidential conciliation discussions facilitated by the Commissioner. Crucially, in this instance, "[p]articipation in those discussions is limited to the parties (including their legal representatives and experts)". This is the second stage of the process.

Order 1 is granted

Both the Applicant and the Respondent acknowledged GCEIG's entitlement, as a person that had made an objection in relation to the Proposal, to be heard pursuant to s 8.12 of the EPA Act at the hearing of the appeal, and thus to the making of Order 1 sought by this Motion. I am satisfied, having regard to the Affidavit of Ms Hawthorne and the copy of GCEIG's submission to the Council and the Southern Joint Regional Planning Panel in relation to the Proposal at Annexure JH1 of that affidavit, that such an order is appropriate.

GCEIG's submissions

Supporting GCEIG's Motion was an affidavit of Ms Jenny Hawthorne, Vice Chairperson of GCEIG, affirmed on 28 March 2018. This affidavit set out that GCEIG had submitted an objection to the Proposal during the public exhibition period (which was annexed to the affidavit), and summarised its main concerns about the Proposal.
Ms Hawthorne's affidavit also stated: Basis for proposed joinder 12. On or about 1 March 2018, GCEIG received a letter from the solicitors for Council, Ms Hawley and Mr Harker of Lindsay Taylor Lawyers advising GCEIG of its right, as an individual who lodged an objection to the DA, to be either "joined as a party to the proceedings or give evidence to the Court at the site inspection on 11 May 2018", A true copy of that letter is attached to this affidavit and marked "JH2". 13. I understand the GCEIG has a right to be heard at the hearing of the appeal under section 8.12 of the Environmental Planning and Assessment Act 1979 (NSW). 14. As part of being heard at the hearing of the appeal, GCEIG seeks to be heard at the conciliation conference fixed for 11 May 2018 as this is a preliminary step in this appeal. 15. GCEIG wishes to attend the conciliation conference assisted by the advice of Mr Warwick Giblin, an environmental consultant who assisted GCEIG in responding to the DA.
It is important to note that although this was set out under the heading 'Basis for Proposed Joinder', Mr Giblin confirmed at the hearing that GCEIG does not wish to be joined as a party to the Class 1 proceedings (with the attendant rights, obligations, and liabilities), but to be involved in the proceedings (including at the "second stage" of the s 34 conciliation) as, in effect, an amicus curiae. This is, Mr Giblin informed the Court, because it "is keen to assist Council uphold the decisions of the Southern Joint Regional Planning Panel to refuse the DA" (Transcript, p 7).
In support of this, Mr Giblin relied upon: 1. Exhibit D - a media release, dated 4 December 2017, issued by the General Manager of the Council and titled "Council supports Burra Landfill Proposal" and noting that "Council will be making presentation in support of the economic benefits of the Burra Landfill proposal at the hearing of the Joint Regional Planning Panel on Thursday 7 December 2017. Councils (sic) support is naturally dependent on the requirements of the Environmental Planning Authority being met. Council sincerely appreciated the value of the business to the local community"; 2. statements by Mr Matt Harker, a solicitor appearing on behalf of the Council at the JRPP, requesting that the JRPP exercise its discretion to defer its determination on the Proposal in order to allow more time for the Applicant to confer with the EPA regarding the EPA's decision not to grant general terms of approval. Mr Harker also indicated the Respondent Council wished to avoid or defer any legal appeal costs should the developer appeal any outright refusal and a deferral may assist in that regard; 3. an assertion made by Mr Giblin that, at the JRPP hearing, the mayor of the Respondent Council defended the media release and the Council's desire for a deferral of the decision on the Proposal.
Ms Hawley expressed the concern of the Respondent Council with respect to Mr Giblin's reference, in the previous two sub paragraphs, to words said to have been spoken by Mr Harker and the Respondent Council's mayor, suggesting that the Court should be cautious in relying upon recollections of oral words spoken by these people, especially given the absence of documentary corroboration, knowledge of the context within which the words were spoken, whether they were qualified or possibly misconstrued. The Court indicated that whatever the veracity of the particular references to words said to have been spoken, in the circumstances of the issues in contention, the Court does not need to determine the actual weight to be placed on the particular statements made.
Rather, in order to address the contentions before it, the Court merely needs to understand the basic proposition that the GCEIG has concerns that the Respondent Council might not press the JRPP's rejection of the Applicant's Proposal as vigilantly or as strongly as the GCEIG considers is necessary. Consequently, GCEIG presses for Order 2 as it would thereby be "at the table" when the all-important discussions between the parties are occurring "behind closed doors" during the second stage of the s 34 conciliation conference process. Given that by s 34(3) the parties might reach an agreement, which could result in the disposal of the proceedings by the presiding commissioner, GCEIG stressed that it was vital that it has the opportunity to heard during this s 34 second stage process.
Mr Giblin submitted that the GCEIG considered that these matters, being the concerns that the Respondent might not press the refusal hard enough, constituted "extenuating circumstances that warrant the Court setting aside the conciliation conference policy and thus permit [CGEIG] to attend those detailed discussions subsequent to the onsite inspection" (Transcript, p 12). In short, CGEIG is concerned that the Council may not prosecute the refusal of the Proposal to the extent that the CGEIG sees fit and may, in fact, reach a conciliation with the Applicant on terms which may not be acceptable to GCEIG.
It ought to be noted here that Ms Hawley for the Council, in response to the inference that the Council does not intend to defend the proceedings, confirmed that the Council has filed a statement of facts and contentions in the Class 1 matter, which sets out the Council's concerns about the Proposal and reflects the reasons for refusal of the JRPP. That is, that the Council intends to defend its position of refusal and will call evidence in support of its decision.
Mr Giblin further submitted that, given his extensive experience in environmental impact assessments and, significantly, waste management including landfills, the presence of GCEIG at the second stage of the conciliation conference "could add some robustness and consideration to the deliberations" (Transcript, p 13). In the context of the experts that the Applicant and the Council intend to have present at the conciliation, namely in relation to hydrology and hydrogeology, GCEIG submitted that there are a number of other issues of relevance, including "traffic impacts, the appropriateness of the proposed project relevant to local planning provisions, issues around air quality, assessment of alternative landfill sites", and that in order to determine the adequacy or otherwise of the Proposal, it is necessary to examine all such matters. Mr Giblin submitted that the "understanding of the various components of a landfill that [he] could bring to the table could assist in more robust and transparent decisions".
Finally, Mr Giblin raised the concept of natural justice and public faith in the Class 1 process (Transcript, p 13): And in particular it would allow the Group to see natural justice at work and that there is a fair and just hearing. And that in a manner it's about seeking being involved and participate to the extent that you can understand and have knowledge of the outcome of those deliberations and how they were arrived at, how they were formed.

Applicant's submissions

The Applicant strenuously resisted Order 2 of GCEIG's Motion "that the Applicant on the motion be heard at the conciliation conference fixed for 11 May 2018 in this appeal". Although the Applicant conceded that the Policy enables objectors and other non-parties to take part in a s 34 conference at the site inspection phase, it argued that there is no power provided by the legislation to enable a person that is not a party to the proceedings to participate in "stage 2" of a s 34 conciliation conference.
This, the Applicant submitted, is evident by the language of the provision, which is framed by reference only to the parties to the proceedings (Transcript, p 33): 34 Conciliation conferences (1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court: (a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and (b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference. (1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference. …
As to what constitutes a party to proceedings, the Applicant's counsel, Ms Novak, relied on a number of decisions of this Court and the Court of Appeal.
In relation to the previous s 97A of the EPA Act (now - with a material change - s 8.12), the Applicant noted the decision of Pain J in Alexandria Landfill Pty Limited v Sydney City Council [2004] NSWLEC 639 in which her Honour interpreted s 97(4) as giving an entitlement to an objector to participate as a party, which includes the right of appeal from the Land and Environment Court as a party.
However, the Applicant noted the earlier decision to the contrary of the Court of Appeal in Lowy v The Land and Environment Court of NSW & Ors [2002] 123 LGERA 179, in which Giles JA observed at [88] that being heard as if a party to an appeal is distinct from being heard as a party to an appeal (emphasis added): The course taken by the legislature appears quite deliberate. Ordinarily the only parties to an applicant's appeal are the applicant and the consent authority and an objector is not a party to the appeal, although where the development is a designated development or required particular concurrence or approval an objector or the concurring or approving body can be heard as if a party to the appeal. An objector can not appeal at all unless the development is a designated development, but if an objector appeals the applicant and the consent authority are entitled to be heard as parties and any concurring or approving body is entitled to be heard as if a party to the appeal. Being heard as if a party to an appeal is distinct from being heard as a party to an appeal.
The Applicant argued that this distinction supports the contention that the new statutory regime which commenced on 1 March does not confer an objector the status of being a party to the proceedings.
The Applicant drew the Court's attention to the consideration of a similar phrase (albeit in an earlier iteration of the planning scheme found in s324ZA of the Local Government Act) in Sydney Legacy Appeals Fund v Tanna (1980) 48 LGRA 98, in which Reynolds JA noted at [page 104] (emphasis added): The argument was the words 'as if he were a party to the appeal' would be redundant unless they were understood to clothe the objector with all the rights of a party, including any right of appeal available to a litigant properly so described. I do not so read them. The grant to a person not a party of a right to appear and be heard without more elaboration, may create a source of ambiguity and uncertainty and questions might arise as to whether there was included, for example, the right to call witnesses and cross-examine. I would read the words 'as designed to indicate the extent to which the grantee of leave may participate in the hearing.' It is not, in my view, to be regarded as a deeming provision which requires the assumption that something is which in fact it is not. It is a referential delineation of rights.
Noting that s 8.12 of the EPA Act, which replaced s 97A, at s 8.12(3), when compared to s 97A(4), omits the words "as if the person or body were a party to the appeal", Ms Novak submitted that, even if s 97A previously deemed an objector a party to an appeal (which, she argued, the cases cited above show is not the case), the removal of the words "as if the person or body were a party to an appeal" meant that this was no longer the case. This was supported, according to the Applicant, by s 8.12(3) including the words "if not already a party to the appeal" which indicates that an objector or any other person might make an application to be joined as a party to the proceedings. The Applicant posited that this implied that if an objector has not made a joinder application, they are nevertheless permitted to be heard at the hearing of the appeal, but that this is a lesser entitlement than that conferred by the status of 'party'.
Ms Novak submitted: "Firstly, one must bear in mind that the case of Double Bay Marina and the decision to permit objectors to have an active voice in that case, was done in the context where there was a hearing and the Court was embarking on a decision. The whole point of s 38 is to assist the Court in the process of decision making and deciding the case." (Transcript p 22)
Ms Novak continued: "That is different to a s 34 conference which is primarily something conducted between the parties. The only possible decision that a Court would ever be required to make in a s 34 is after the parties have reached agreement to be satisfied that the terms of the decision which the parties agree on is lawful. There's no embarking on a variety of issues where the Court has to make findings of fact and decide things in contradistinction to a hearing, and that is a material difference" (Transcript p 22)"

Double Bay Marina orders pursuant to s 38(2)

The Applicant submitted that, similarly, an order under s 38(2) of the LEC Act in respect of an intervener or objector does not confer the status of a party on that person.
The Applicant took the Court to Chriss v Williams (1988) 65 LGRA 384, in which Bignold J, examining the Double Bay Marina case, held at [page 389]: "I think it is clear from these passages [at 314 and 315] that the Chief Judge did not join the parties as objectors. Rather he allowed their views as objectors to be independently put to the court by counsel representing them. The leave he so granted was expressly limited and qualified."
Also referred to was the matter of ADI Limited v Hawkesbury City Council (2001) 117 LGERA 117, in which Pearlman J, in the context of s 56A of the LEC Act dealing with appeals against the decision of a Commissioner, examined the phrase "a party to proceedings" and whether an intervener would constitute such a party in circumstances where the intervener was given leave under s 38(2) "to be represented, give evidence, and make submissions as if a party to the proceedings". Her Honour, observing that leave of the kind granted in the Double Bay Marina case has been similarly granted on numerous occasions in this Court, noted at [34] that: Leave of that kind, however, has not been regarded as conferring upon an objector the status of a party to the proceedings. Thus, for example, in Ziatabari v Ku-Ring-Gai Council [1999] NSWLEC 139, in relation to an objector who sought leave to be represented upon a basis similar to that conferred on the intervener in this case, Bignold J at par 16 expressed the view that a grant of leave pursuant to s 38 would not render the objector in that case a party to the litigation.
Ms Novak noted that "it is a prospect" that, on the Applicant's construction, a conciliation conference under s 34 may see the resolution of a matter without the benefit of relevant information acquired under s 38(2) of the LEC Act (in this instance, according to CGEIG, Mr Giblin's expertise), but that (Transcript, p 23): the whole purpose of the s 34 is really to facilitate a just, quick and cheap resolution. If an objector is not willing to take the risk and time and effort to make an application for joinder, to ensure that they're given an entitlement to participate in the 34, well so be it. But there would be, to simply permit any person to start intervening in s 34 conferences, would negate the fundamental purpose of a 34 which is to facilitate the resolution of the issues in an open way. If all and sundry were permitted to participate, there would be no utility in embarking on that process.
In Stefan Williams v Warringah Council (2001) NSWLEC 245, Sheahan J (quoting Chriss v Williams) confirmed, at [12], that a Double Bay Marina order granting leave to a person provides "'limited and qualified rights' short of status as a party to the appeal".
Therefore, the Applicant submitted, neither s 8.12 of the EPA Act nor an order made under s 38(2) of the LEC Act confers on an intervener 'party' status, and thus they are not entitled to attend a s 34 conciliation conference, which is expressly between parties.
To illustrate this point, the Applicant noted Anglican Retirement Villages Diocese of Sydney v Wollongong City Council (2013) 193 LGERA 381, in which an objector sought an order for joinder or, in the alternative, a Double Bay Marina order. In that matter, Pain J noted at [18] the power to make a Double Bay Marina order, that such an order did not amount to joinder as a party, and, crucially, that "the effect of such an order in relation to a s 34 conciliation conference is non-existent as the conduct of such a conference under s 34 of the Court Act is largely to be determined by the parties. There is no utility in making such an order in the circumstances before me" (emphasis added).
The Applicant also noted that in the matter of Miles David Barclay v Woollahra Municipal Council [2017] NSWLEC 1605 Froh R found at [45] that "[i]t does not appear to me that there is any power under s 38(2) to allow a party to participate in conciliation conferences as sought by Mr Tassis in this motion". Registrar Froh was clearly drawing a distinction between the operative effect of a Double Bay Marina order in relation to the hearing in a proceedings and the apparent non-operative effect of such an order in the conciliation conference stage of proceedings. Relying on Pain J in Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195 at [7], the Registrar confirmed that the effect of such an order under s 38(2) would be to permit a person granted leave "to adduce evidence and participate in the proceedings but not eligible to participate as a full party to the proceedings".

Expertise

Ms Novak argued that, even if GCEIG could participate in the second stage of the s 34 conciliation conference, its submissions would have to be by way of lay submissions. Relying on the Council's statement of facts and contentions, Ms Novak submitted that the primary issues requiring expertise were groundwater and surface water impacts, and so relevant experts would be in the fields of hydrology and hydrogeology. Mr Giblin, in the Applicant's estimation, did not have the requisite expertise and, even if he did, as CGEIG's agent, could not be considered to have the requisite independence.

Interests

The Applicant contended that, given the Respondent in the proceedings is a public authority which acts in the public interest, and having regard to the statement of facts and contentions, intends to defend the JRPP's decision "vigorously", there is no evidence to support the proposition that Respondent Council would do anything other than appropriately defend this matter.

Joinder

The Applicant contended that should GCEIG seek to be joined as a party to the proceedings, it would not satisfy the requirements to be so joined. The Court's attention was drawn to Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293, although Ms Novak did not elaborate upon her contentions in this respect focused. Given that the GCEIG in its Motion was not seeking to be joined as a party, a stance that Mr Giblin confirmed at the outset of the hearing, the issue is somewhat academic and so does not require full analysis. However, given that Ms Novak made several submissions to the Court, lest the Court was of the mind to contemplate alternative options for GCEIG to participate in the proceedings, I shall briefly set out her submissions for completeness.
Returning to the primary contentions to be resolved, the Applicant submitted that there was no evidence before Court that GCEIG was seeking to raise an issue which has not already appropriately been agitated by the Respondent Council. The affidavit of Ms Hawthorne, the Applicant said, merely rearticulated the points made its submission to the JRPP, and did not identify the issues it would be seeking to raise in the conciliation conference. The joinder power, according to the Applicant, does not exist "to enable a party to get a second bite at the cherry and rearticulate submissions that it has already made in the formal consultation process" (Transcript, p 37).
Second, with respect to whether joinder would be in the interest of justice or the public interest, the Applicant argued that GCEIG did not satisfy the test the Court has established.
Third, the Applicant contended that there is no evidence to indicate that GCEIG would put forward an independent expert, with expertise referable to the specific issues, on any of the issues.

Distinguishable matters

Counsel for the Applicant, as is proper when appearing alongside a party that is not legally represented, drew the Court's attention to a number of decisions which it considered were against it.
In Warriewood Vale v Northern Beaches Council (2016) 217 LGERA 45, in which objectors sought to be joined to Class 1 proceedings, and in which Pain J, dismissing the application for joinder, held at [30] and [31]: The intervenors have made known their views through the s 34 conference process to date and can participate through the giving of written and oral submissions at the hearing. The usual court practice in Class 1 proceedings enables that participation. What may additionally be sought in future is the opportunity to call expert town planning evidence on the application of the density provisions in the Strategic Review, or at least submissions to that effect were made by the intervenors' counsel. These factors lead me to conclude that I should make a "Double Bay Marina" order as provided by s 38(2) of the Court Act which enables the intervenors to participate on the matter of dwelling density (contention 1) through the making of legal submissions and calling town planning evidence in the s 34 conference process to the extent such an issue remains for consideration (it may not at this stage) and also at any hearing on the merits.
However, Counsel for the Applicant argued that the above case was distinguishable from the present case in that, in that matter, her Honour had not been directed to the question of jurisdiction. Counsel for the Applicant further submitted that the orders made in Warriewood Vale are contrary to the observations made by Pain J in Anglican Retirement Villages, which the Applicant summarised, indicating that her Honour indicated that there was no such power.
In Evolution Planning v Northern Beaches Council [2017] NSWLEC 1174 in which Gray R, at [30], following Pain J in Warriewood Vale, observed that her decision was consistent, explaining that it was in the interests of justice to enable participation by the intervenor. The Registrar emphasised that the participation should be limited in the same way as was ordered by the Court in Warriewood Vale, allowing participation as an intervenor to the extent of furnishing specific evidence on a specific issue of site density relevant to the proceedings. The registrar then ordered at [31]: 1. Pursuant to s 38(2) of the Land and Environment Court Act 1979, Warriewood Vale Pty Ltd may participate in the proceedings on the contentions regarding dwelling density (Contention 1, 2 and 4) through the making of legal submissions and calling town planning evidence at the s 34 conciliation conference and at any hearing on the merits, including through the participation of a town planner in any joint conference of experts in town planning that is the subject of directions made by the Court pursuant to r 31.20 of the Uniform Civil Procedure Rules 2005, subject to the following conditions: (a) The Applicant for joinder agrees to keep confidential all matters discussed in the s 34 conciliation conference; and (b)The applicant for joinder agrees not to make an application for costs against any party to, or any other person in connection with, the proceedings.

Council's position

The Council neither supports nor objects to Order 2 sought in the Notice of Motion. It's legal representative, Ms Hawley, however helpfully noted that it was not unheard of for objectors to be given leave to lead expert evidence at the first stage of a s 34 conciliation conference (for instance, as discussed by Gray R in Fetherston v Wollongong City Council [2016] NSWLEC 1258 at [29]).

Consideration

It is instructive, in order to provide some context to my considerations which follow, to set out the following passages from the judgment of Preston J in Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 at [50], [54] and [57]-[59] has observed that: [50] To some extent, the application of the Owners Corporation misunderstands the purpose of public consultation and public participation. Meaningful community involvement can, of course, be beneficial in the development assessment process. It can provide members of the community with an understanding of what is happening in their area and how the proposed development may impact particularly on their interests; enable members of the community to participate by making submissions to the consent authority; inform the consent authority; and improve planning decisions. … [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. … [57] This is not a case where the Court would be deprived of meaningful assistance if the Owners Corporation were not be joined. Sometimes, by reason of agreement being reached between an applicant for development consent and the consent authority, there may be no meaningful contradictor and important issues that the Court needs to consider in order to give a proper and lawful decision, will not be available to the Court. [58] It was this desire to obtain meaningful assistance that led to the Court allowing persons to be heard on an appeal under s 38(2) of the Land and Environment Court Act in what came to be known as a Double Bay Marina order after the name of the case in which such an order was first made: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. Subsequently, the Land and Environment Court Act was amended to include s 39A which expressly allows the joinder of parties. [59] One of the purposes of s 39A, particularly reflected in paragraph (a), is to allow the joinder of a person as a party to enable issues to be sufficiently addressed and hence to inform the Court so that it can give proper consideration to the issues.
I have already indicated in [21] above that I have decided, for the reasons there expressed, that is appropriate to make the first order sought by GCEIG to be heard during the hearing of the appeal, pursuant to s 8.12 of the EPA Act. The second order sought remains in contention.
The rationale for the GCEIG also seeking to participate in the second stage of the s 34 conciliation conference is a fear that it will be all too late for the GCEIG's input to be considered once the conciliation conference is over: the stable door will have been opened and the horse well and truly bolted. First, there may be a resolution achieved through agreement at which point the presiding commissioner must, pursuant to s 34(3)(a) of the LEC Act, dispose of the proceedings. Alternatively, short of resolution, one outcome of a conciliation conference might see the Respondent Council substantially modifying its stance on a range of issues, thereby narrowing the parameters of the matters remaining to be addressed at the hearing proper. Although such "progress" in the disputation might be seen, from one perspective, to be entirely in accord with the objectives of s 56 of the Civil Procedure Act 2005, being in the interests of a just, quick and cheap resolution of the real issues in the proceedings, GCEIG's inferred concern that such resolution "behind closed doors" might result in, say, insufficient weight being given to implications of some of the issues it perceives as arising out of the Proposal.
I have concluded from my statutory analysis of s 34 of the LEC Act, in the context of its legislative history and the multiplicity of case law before me, that a non-party cannot participate in what I have described earlier as the "second stage" of the conciliation conference. The legislation is clear in my view, only parties can be "in the room" at such a conference. Therefore, in circumstances where GCEIG has made it clear that it is not seeking to be joined as a party to the proceedings, then whatever orders I now make it is to remain a non-party. Therefore, without offending the legislative scheme of s 34, I cannot allow GCEIG to be participants "within the room" of the scheduled conciliation conference in this matter.
There are some practical options available to allow an intervener to be a participant in such a conference, but in a de facto fashion. First, the parties to the proceedings could, of their own volition, agree for the intervener to be involved. If the parties were to so invite such participation, presumably on the basis that it would be in the interests of a just, quick and cheap resolution of the real issues in the proceedings for the intervener to be involved, then that de facto arrangement should not be resisted by the presiding commissioner. That de facto option is not available in this case, as the Applicant strongly resists the involvement of GCEIG.
A second de facto option would be if the Respondent Council, recognising the particular value - perhaps specific expertise - of the intervener's participation, opts to recognise that expertise by adding the intervener's representative to the Council's team attending the conciliation conference, thereby, perhaps, strengthening their negotiating arm within the conference. This second option would also seem not to be available in this case as, although the Court is entirely satisfied that the GCEIG's agent Mr Giblin is highly and relevantly qualified to contribute to the deliberations within the conference, the Respondent Council has not indicated that such a course might be adopted by them. I should observe for completeness, that given s 34(1)(a) refers to the conference being between "the parties or their representatives", the selection of who specifically will be the representatives for a party it is not a matter of concern for the presiding commissioner. So if a party wishes to add an intervener's expert to their team to participate in the conciliation conference, that is a matter for that party.
I now return to the two stages of the conciliation conference process. Strictly, to refer to a stage one and a stage two of the conciliation conference process is a misnomer or mis-description. The formal conciliation process is that prescribed by s 34 of the LEC Act, and it is that formal stage of the process that I have referred to as the second stage. The first stage is that which is addressed in the Court's Class 1 Development Appeals Practice Note referred to in [19] above. This first stage is really a concurrent stage of the proceedings which, for logical convenience, occurs as an informative forerunner of the true conciliation conference process.
It is instructive for me to explain the statutory basis for the first stage, as I have so described it, which usually occurs abutting but preceding the s 34 conciliation conference. First, in a Class 1 application proceeding the Court "stands in the shoes" of the consent authority in the first instance, usually the municipal Council. Therefore, all the duties and requirements a Council must follow are thereafter required of the Court when considering a development application on appeal. So when one finds in s 4.15(1) of the EPA Act the requirement that certain matters be evaluated in determining a development application, those matters are to be considered in the first instance by the consent authority and then, on appeal, by the Court. With the words: "[a] consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: ….(d) any submissions made in accordance with this Act or the regulation, (e) the public interest", the obligation to take into consideration community, objector or other persons' submissions is clear.
As a consequence of the obligation in s 4.15(1) of the EPA Act, the Court then established a practice whereby those persons who have made submissions might address them, with or without expert evidence to support those submissions, in the stage one process I've described above. Hence, the Court's Class 1 Development Appeals Practice Note came into being so as to guide the process. As for the statutory basis for that Practice Note, s 15 of the Civil Procedure Act provides the necessary power. That section is as follows: 15 Practice notes (1) Subject to rules of court, the senior judicial officer of the court may issue practice notes for that court in relation to civil proceedings to which this Act applies. (2) A practice note must be published in the Gazette. (3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.
So focussing on this so-called stage one, which precedes the formal stage two s 34 conciliation conference process, it is frequently the case that this two-part process is referred to as the conciliation conference process. In fact only one part of the process, the second part, is the strict conciliation conference. The critical distinction is that in the first part of process both parties and non-parties participate, whereas in the second part, only parties can participate. In that context, the Double Bay Marina order is, in my view, available for the first part, but not for the second part, of this process. Given the entitlement of a non-party to participate in the process established by the Court, enabling submitters such as objectors to be heard in the stage one exercise, it might be asked whether there remains any utility in the making of a Double Bay Marina order in relation to stage one.
I am of the view that by a Double Bay Marina order, directing precisely what may occur with respect to an intervener's submissions and representation, a clear pathway can unambiguously be provided by which that intervener's role and opportunity at the stage one "consultation" exercise is set. By making that order the Court is clearly confirming to the commissioner who would normally be presiding at the stage one consultation, before withdrawing into the "closed" s 34 conciliation conference, that the intervener the subject of the order has satisfied the Court that they have something significantly relevant to submit and so should be given the necessary opportunity to be heard, via expert evidence if need be, with an appropriate allocation of time. The importance of hearing from such an intervener immediately prior to the s 34 conciliation conference itself, would serve the very positive purpose of informing the parties and the commissioner of the contentions of the intervener in detail and the strength of those contentions, quite possibly supported by evidence.
Although remaining neutral on this issue, Ms Hawley in oral submissions at the hearing submitted that this course has found favour in the past: [i]t has been the case that the Court has, on some occasions where the initial application was for joinder and often during the course of the proceedings, the decision maker has had to determine whether instead a Double Bay Marina order would be appropriate, it has been the case that the Court has often allowed a party to put on expert evidence or otherwise to be legally represented at the first stage of the conciliation conference. I draw that to your attention as a possible order that you may be able to make. [Transcript, page 41, lines 31-37] … Clearly the Group has an entitlement to be heard at the first stage as a result of s 8.12(3), and we would be facilitating their right to be heard at the first stage of the s 34 conference, being the part where the site is inspected and all objectors are given a right to be heard, and that would clearly be extended to the Group particularly because of their right to be heard also at the hearing because of s 8.12. …. I do think it's within your power to make an order that in that first stage the Group could possibly lead some expert evidence". [Transcript, page 41, lines 43-50].
Ms Hawley referred to a decision of Registrar Gray as an instance of this approach being adopted: Fetherston v Wollongong City Council [2016] NSWLEC 1258, wherein at [30]-[31], Gray R held: 30. Further, the mere fact that there may be discussions at the conciliation conference that could lead to an agreement, or instructions given to the Council to reach an agreement, does not warrant the exercise of the Court's discretion in favour of making of an order for joinder. The applicant for joinder's concerns in relation to the giving of such instructions are speculative only. In any event, the applicant for joinder will have the opportunity to make submissions at the commencement of the conciliation. It generally then falls to the Council to ensure that genuine concerns relating to the proposal will be the subject of discussions in the conciliation. 31. However, I am of the view that it is appropriate for an order to be made to allow the issue concerning the site specific impact of coastal processes to be properly before the Court for consideration. This can be done through what is often described as a Double Bay Marina order, named after the decision of the Court in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. The power is now exercised pursuant to s 38(2) of the Land and Environment Court Act 1979 (see, for example, Ali v Liverpool City Council [2009] NSWLEC 107). Such an order will allow the applicant for joinder to raise the issue for the Court's consideration through submissions and through engaging an expert to prepare a report for the Court. …
Reviewing the two judgments of the Court which might appear to be at odds with others, in that a non-party was, on the face of the orders, given leave, by way of a Double Bay Marina order, to present evidence and participate in the conciliation conference process: Evolution Planning v Northern Beaches Council and before it Warriewood Vale v Northern Beaches Council, it is clear that in neither case was the question of jurisdiction fully ventilated and in both cases the order allowing participation was constrained to particular restricted issues. Further, given the frequent tendency over the years for the stage one and stage two exercises to be fused together by the general descriptor of the conciliation conference process, it is not known to me whether the intervener in those cases actually participated within the closed conciliation conference or whether their submissions and evidence were received beforehand as part of the stage one exercise.
It is necessary that I address two further issues: that of Ms Novak's questioning whether Mr Giblin has the requisite expertise to assist in the Court's deliberations; and secondly, now that Mr Giblin has been appointed the agent to represent the GCEIG, whether his independence has been so compromised that he ought not be heard as an expert.
First, I reject the Applicant's submissions that Mr Giblin does not have the requisite expertise to assist the Court. It was said that because Mr Giblin is neither a hydrologist nor a hydrogeologist, he is not qualified to express an opinion on the matters in contention before the Court. Determining expertise can at times be a contentious matter, especially as expertise is not always determined by a specific university qualification, but rather can be gained from a multiplicity of "inputs" crossing a range of interdisciplinary experiences, training and qualifications. Frequently, a person with a specific qualification in just one discipline, fails to assist the Court sufficiently due to the narrowness of their experience and the inability to demonstrate knowledge of the interaction of many relevant factors within a broader context. When considering Mr Giblin's expertise, as set out in Exhibit C, a Fellow of the Environment Institute of Australia and New Zealand and a former Certified Environmental Auditor, the diversity of his experience is directly relevant to the assessment of landfill operations. Just a cursory analysis reveals that Mr Giblin had between 1993 and 2006 conducted no less than 110 audits of landfills, compost facilities, liquid waste treatment facilities and waste transfer facilities. Between 2008-2011, Mr Giblin examined 12 alternative sites as an exercise in site investigation for a new landfill for Sydney. These are just some of the waste management credentials of Mr Giblin that are apparent from Exhibit C. I have no reason to question Mr Giblin's credentials in being able to assist the Court.
Finally, the Applicant asserted that Mr Giblin could not be considered to have the requisite independence, now that he is the appointed agent for GCEIG, in order to be able to assist the Court. It is true that Mr Giblin now represents GCEIG in an advocate capacity, but nevertheless he is concurrently an environmental consultant bound by the ethical requirements of the professional Institute of which he is a Fellow. I am satisfied that as a person expert in relevant fields, Mr Giblin has the capacity to make submissions in a focussed, expert manner, which could assist the Court. The fact that Mr Giblin is an agent, rather than an independent expert called to give evidence, does nothing to dissipate Mr Giblin's expertise. Whether, with respect to any particular submission, the Court finds the observations, assertions or assessment made by Mr Giblin, on behalf of GCEIG, to be useful or informative, will go to a question of weight. There is no principle of practice that supports the effective gagging of a person in Mr Giblin's position, simply because they are an agent, rather whatever is said can be taken to be within the capability of an experienced officer of an expert specialist Court to consider, reject or accept.
On the basis of the foregoing analysis, I am satisfied that I cannot make an order enabling GCEIG, as a non-party, to participate behind the "closed door" of the s 34 conciliation conference. However, I have determined that I should make an order enabling the intervener GCEIG to make such submissions, supported by such expert evidence, as it deems appropriate as part of the stage one exercise. Given its particular issues (as set out in its submission to the JRPP dated 5 June 2017, being annexure JH1 to the affidavit of Jenny Lyn Hawthorne affirmed 28 March 2018), which I consider relevant to the Court's deliberations, and the specific expertise of the agent appointed by GCEIG, namely Mr Warwick Giblin, the order I make is to confirm to the commissioner (appointed to preside at the stage one "consultation" exercise and thereafter the conciliation conference), that in exercising discretion as to the apportionment of time and the manner by which submissions and expert evidence are to be received during that stage one exercise, sufficient time and opportunity should be afforded to GCEIG. The commissioner will no doubt note that the Court has seen fit to make this specific order with respect to GCEIG, as distinct from others who have not similarly sought the benefit of such an order.

ORDERS

The Court makes the following orders: 1. The applicant on the motion, GCEIG, be heard at the hearing of the appeal, under s 8.12 of the Environmental Planning and Assessment Act 1979 (NSW); 2. GCEIG may make such submissions and present such expert evidence as it deems fit, subject to the final discretion of the presiding commissioner, on matters raised in their submissions to the Southern Joint Regional Planning Panel dated 5 June 2007, to the on-site consultation exercise conducted prior to the formal s 34 conciliation conference, with sufficient time allocated to facilitate the GCEIG contribution to the deliberations of the Court. 3. The motion seeking an order that GCEIG be permitted to participate in the s 34 conciliation conference, be otherwise dismissed. 4. There be no order as to costs.

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: 03 May 2018

(2001) 117 LGERA 117

(2013) 193 LGERA 381

(2003) 127 LGERA 293

(2007) 159 LGERA 361

At a glance

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Judgment (17 paragraphs)

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