McMahon's Earthmoving Pty Ltd v Snowy Monaro Regional Council

Representation: Counsel:
R White (Applicant on the Notice of Motion)
J Reid (Applicant) (First Respondent on the Notice of Motion)
A Menyhart (Solicitor) (Respondent) (Second Respondent on the Notice of Motion)
Solicitors:
HWL Ebsworth (Applicant on the Notice of Motion)
Macpherson Kelley Lawyers (Applicant) (First Respondent on the Notice of Motion)
BAL Lawyers (Respondent) (Second Respondent on the Notice of Motion)

File Number(s): 2026/00035217

Publication restriction: Nil

EXTEMPORE JUDGMENT

1. HER HONOUR: This matter comes before me by way of Notice of Motion brought by Ms Halton filed on 22 May 2026. Ms Halton seeks to be joined as a party to the proceedings pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), or in the alternative, pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

2. The submissions that have been made to me this morning primarily relate to the joinder provisions under the EP&A Act. If I was to consider joinder under r 6.24 of the UCPR, I would be required to consider different matters than those to which I am directed pursuant to the EP&A Act, and I will not consider those matters unless I am not satisfied that the joinder under the EP&A Act is appropriate.

3. This is an appeal that comes to the Court from a refusal of the Snowy Monaro Regional Council (Council) to modify an existing development consent. The existing development consent related to a quarry for which consent was granted on 8 October 2000 (Original Consent) and subsequently modified in August 2015 (Modified Consent). Relevant to the purposes of this motion, both the Original Consent and the Original Consent as modified by operation of Condition 2 of the Modified Consent, provided that the development consent had a limitation — and I use that term in a neutral sense — as to the period in which extractive industries of the quarry could be undertaken.

4. McMahon’s Earthmoving Pty Ltd (A****pplicant) has sought to modify the relevant Condition 2 by seeking an additional 50 years, compared to that approved under the Original Consent, and I note from the Council's Statement of Facts and Contentions at par 1.5 that pursuant to the Statement of Environmental Effects submitted with the modification application there is an indication that the modification application may also include an increase in the overall extraction limit, and an adjustment to the area to be worked. I do not put any weight on the fact that there may be some uncertainty in relation to the nature of the application because for the purposes of this motion, it is the terms of Condition 2 which are the subject for consideration.

5. Section 8.15(2) of the EP&A Act provides:

8.15 Miscellaneous provisions relating to appeals under this Division

…

(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.

…

6. Primary reliance is placed by Ms Halton on s 8.15(2)(a), although she also relies in the alternative on subs (2)(b).

7. As is made apparent by the terms of s 8.15(2), the decision as to whether or not a person should be joined is a discretionary decision, and not a mandatory requirement upon satisfaction of the grounds identified in either subss (2)(a) or (2)(b). Ms Halton has prepared a Statement of Facts and Contentions for the purposes of this motion. She submits that in the event that she is joined, she be given leave to raise the contention identified in her Statement of Facts and Contentions.

8. This was confirmed by Mr White, counsel appearing for Ms Halton, that the proposed intervener proposes only to raise a contention which I summarise as being the effect of Condition 2 of the Original Consent, as modified by the Modified Consent, with respect to whether it exists in law at the relevant date, and therefore was capable of modification.

9. The evidence discloses that Ms Halton has been an objector to this application for further modification of the Original Consent, both in terms identical to that which she now seeks to raise in her Statement of Facts and Contentions, and also on matters of merit and other matters which have been identified as contentions in the Council's Statement of Facts and Contentions in these proceedings.

10. It is accepted, on its face, and counsel for the Applicant in the proceedings does not dispute, that the contention as proposed to be raised by Ms Halton is not raised by the Council. I also observe that the Council has raised two issues of law relating to the capacity of the modification application, the subject of these proceedings, to modify the Original Consent, but those issues of law do not overlap with that proposed to be raised by Ms Halton.

11. The nature and scope of the issue proposed to be raised by Ms Halton is a legal question, and it turns on the construction of the Original Consent, as modified by the Modified Consent. I accept the submission of Mr White that, for the purposes of raising that issue in the proceedings and apart from a tender of the documents comprising the Original Consent and the Modified Consent, there is no evidence apart from that documentary material that would be required for the contention to be determined by the Court.

12. On that basis, and on the basis that I am looking solely for the moment at Ms Halton's Statement of Facts and Contentions, I am satisfied that the raising of that contention would not unreasonably extend the hearing time, or require additional evidence that would not otherwise be before the Court. I am also satisfied that the issue Ms Halton seeks to raise is one that should be considered, and I put it more highly than that and say that it is essential to be considered in the determination of the proceedings before the Court. I also find that the issue is one that has not been raised by the Council.

13. The issue that falls for argument between the parties on this motion is whether or not that issue would likely be sufficiently addressed if the person were not joined as a party. Dealing with that issue first, it is apparent, insofar as the Council has not raised the contention in its own Statement of Facts and Contentions, that the Council has elected not to raise the issue itself. Being an issue that is essential to a proper determination of the Court, it is a matter which the Court's attention will be required to be directed in the determination of the appeal that is pending.

14. The construction and operation of the Original Consent, as modified by the Modified Consent, is a matter of legal construction. The legal construction of development consents, and the consequences of development consents which have conditions of a broad type to that which is the subject of Ms Halton's contention in this case, have been the subject of recent judicial consideration. The issues that will arise are not only a proper construction of the consent, but the manner in which the decision of Robson J in Monaltrie Area Community Association Incorporated v Santin [2025] NSWLEC 38 informs or dictates an outcome in these proceedings, and potentially arguments as to the proper application of Robson J's decision in a Class 1 determination.

15. The Applicant contends that as it is an essential matter for determination, it is a matter for which they will make submissions to satisfy the Commissioner or the decision‑maker at the Hearing, and that as such, the Commissioner or the decision-maker will be in a position that they can make a determination without Ms Halton being joined as a party because it will be sufficiently addressed by them in the proceedings.

16. I do not accept that the question of sufficiency in s 8.15(2)(a) merely means that it will be addressed. The question of sufficiency in s 8.15(2)(a) means that it is addressed in a manner which is capable of permitting proper assistance to be given to the decision‑maker as to the appropriate decision on the question that is being raised. This is not a merit matter where the Commissioner or the decision-maker may rely on their consideration of matters such as their assessment of impact from seeing a site, or fall back on their underlying qualifications. This is a matter which clearly legal minds may differ.

17. The Applicant also indicated that Ms Halton's argument had been sufficiently identified in a letter from her lawyers that accompanied her submission to the Council, and that that would be sufficient to give — to use the colloquial — the other side of the story, such that the Commissioner or the decision-maker would be able to determine the matter without Ms Halton being joined.

18. I do not accept that questions of this type of legal construction of a development consent, and the application of judicial authority is a matter that can be sufficiently argued absent a contradictor. Because the Council was not the contradictor in this case and the letter from HWL Ebsworth was by way of submission rather than joinder of issue, I do not consider this would be sufficient. Therefore, I find that the issue as identified in Ms Halton's Statement of Facts and Contentions would not likely be sufficiently addressed if she were not participating in the proceedings.

19. The question is, as identified by Ms Reid for the Applicant, whether or not they need to be joined as a party, and have raised the matters identified by the Court of Appeal in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 (AQC Dartbrook) where issues of their capacity to give assistance to the Court by way of amicus curiae, or what has become known as a Double Bay Marina Joinder, would be such that the question of sufficiency could be provided without the intervener becoming a party.

20. AQC Dartbrook was a case in which a person sought to be joined in proceedings in circumstances where the provisions of s 8.15 of the EP&A Act did not apply. Accordingly, joinder could only be provided pursuant to the provisions of the UCPR. The UCPR required the question of whether or not the person was necessary to the determination of all matters in dispute. That question is one that is different to the question posed under s 8.15.

21. In relation to s 8.15, whilst it is a supplementary power of joinder, that is, it does not override to the exclusion of the operation of the UCPR, I consider that the statutory intention of s 8.15 is not to be measured by necessity as is the UCPR*.* They adopt different statutory language, and therefore a different statutory test.

22. In this case, the notion of amicus curiae or a Double Bay Marina Joinder, whilst being alternatives even to the provisions of the UCPR, do not operate in my opinion in a way that would prevent me from exercising my discretion, or would prevent me from being satisfied that joinder as a party could be accommodated merely by permitting participation by an alternative source. If that was what was intended by the legislation, then the tests as set out in subss (2)(a) and (2)(b) would not be necessary. The common law or the UCPR provisions could be relied upon.

23. The statutory intention of s 8.15 is that the joinder provision under that requirement operates supplementary to and independent of the other powers of joinder and participation. Therefore, if I am otherwise satisfied of the matters in subss (2)(a) or (2)(b), and I consider it appropriate in the exercise of my discretion to join the party, I consider it appropriate that they be joined as a party, as anticipated in subs (2). The capacity to be joined in another manner would not be sufficient to disentitle a person from being joined as a party merely by reason of the availability of those other sources of power.

24. That then brings me to the question of the exercise of my discretion. In relation to this matter, I do note that the Original Consent was for designated development, and therefore it was required to be accompanied by an environmental impact statement. I note that with a development application for designated development, objectors have separate and independent rights of appeal, and rights of appearance in an appeal. I also note that those separate and independent rights of appearance do not apply even where the source of the consent is designated development to applications for modification of such development consents.

25. That being said, if Ms Halton is correct in relation to the legal consequences of Condition 2 in the Original Consent, as modified by the Modified Consent, the question of the capacity to continue extraction beyond the term identified in Condition 2 is a matter that would throw the application, if it was sought to be pursued, back into the system of designated development to which Ms Halton would have those rights. I consider that in the exercise of my discretion, not only is Ms Halton seeking to protect the public interest in ensuring that an application is made in accordance with the law, but also her personal rights that she would have had if this matter had been the subject of a development application. Therefore, I consider those matters in the exercise of my discretion.

26. I also observe that with the open standing provisions, the construction of the Original Consent, as modified by the Modified Consent, could be the subject of consideration by the Court in Class 4 of its jurisdiction. That course of conduct, however, would result in a multiplicity of proceedings where the question squarely arises in the context of these proceedings insofar as it is a matter that goes to jurisdiction as opposed to merit. The fact that it is necessary to be determined in these proceedings also gives rise to the consequence that there may be different decisions on the same question given in two sets of proceedings. I therefore consider, in the exercise of my discretion, that it is in the greater public interest and the greater interest of the parties that the issue be raised once and finally, and that should be in the proceedings as are presently before the Court.

27. It was submitted that, in effect, this application for joinder is premature in the sense that it came at an early stage of the proceedings before the s 34 Conciliation Conference, and that the parties, that is the Council and the Applicant, should be able to conciliate in the s 34, and to the extent they are able, come to an agreement without the intervention of the intervener, because the intervener, if a party, would have to agree in the conciliation, and the issue raised in Ms Halton’s Statement of Facts and Contentions would indicate it unlikely that there would be such an agreement.

28. I do not consider this to be a matter that would warrant me exercising my discretion against joinder. This submission is merely observing the operation of the legislative provisions in s 34 of the Land and Environment Court Act 1979 (NSW). That is, the parties to a proceedings must all agree to an agreement if it is proposed to be made. Alternatively, where agreement is reached, the intervener has the capacity to assist the Commissioner in the jurisdictional question that has been raised in the Statement of Facts and Contentions.

29. The Applicant also has raised a concern in the exercise of my discretion that if I join Ms Halton as a party to the proceedings, she is joined for all purposes, and in being joined for all purposes she has the potential to derail agreements on matters to which she doesn't seek to be joined. That is, matters of merit, and the legal questions that have been raised by the Council.

30. Whilst a party is joined for all purposes, the party once joined as a party, is subject to the rules of the Court. The rules and requirements of this Court are that a person, if they wish to raise an issue in the proceedings, must identify that issue by way of a Statement of Facts and Contentions. Once the Statement of Facts and Contentions has been filed, a party may not amend that Statement of Facts and Contentions without leave of the Court. Additionally, the Court has the powers and discretions available to it in determining the manner in which a Hearing will proceed.

31. In circumstances where there are multiple parties, the Court is able to make directions that limit the participation of two parties that are raising the same question. That is not this case, but if it is the case that at the Hearing, Ms Halton sought to make submissions or adduce evidence beyond the scope of her Statement of Facts and Contentions, that could be a matter that could be addressed through case management. I make it very plain that Ms Halton has sought only to be joined in relation to the issue she has identified in her Statement of Facts and Contentions, and through her counsel has assured the Court that apart from her oral evidence as an objector in the Council's case, she seeks to adduce no evidence or make submissions on an issue apart from that raised in her Statement of Facts and Contentions. If Ms Halton seeks to resile from that position, she would need to do so with leave, and I would hope that my reasons for decision in this case would inform the exercise of that discretion, if it arises. I do not consider that identifying potential future issues of case management are ones that would operate to disentitle, in the exercise of my discretion, the joinder of the party in the proceedings.

32. It was also raised as an issue in this case that the Applicant in the appeal required some clarity in relation to the issue of costs. I consider that once a person is joined as a party, the ordinary rules in relation to costs in Class 1 proceedings, as identified in r 3.7 of the Land and Environment Court Rules 2007 (NSW) (Rules), are applicable. The issues that the Court may have regard to, apart from the fact that the central issue is a question of law, as identified in subr (3)(a), is if a person acts unreasonably in the conduct of the proceedings, as identified in subr (3)(d), or continues to pursue a claim or defence which is otherwise unreasonable, as identified in subr (3)(f)(ii). Therefore, I consider the clarity comes via the Rules, and does not need to be further clarified. If Ms Halton acts in a manner which unreasonably expands the case beyond that which is reasonably incurred, then that is a matter that can be the subject of an application in due course.

33. That being said, I am also satisfied that it is in the public interest that Ms Halton be joined as a party to the appeal. The issue raised by her is one that goes to the legal consequence of a condition imposed by the Original Consent, as modified by the Modified Consent. That is a question which does not arise in the ordinary course and is limited only to such development consents where such a condition is imposed. The determination of that issue in the circumstances of this case, and for other cases, is sufficiently in the public interest that I consider it is appropriate to be determined.

34. I consider the public interest is also heightened by the fact that this is designated development, and that the consequence of the determination of that question will also identify the manner in which the environmental assessment should and must be undertaken in accordance with the provisions of the EP&A Act insofar as they relate to designated development.

35. For those reasons, I am satisfied that it is appropriate that Ms Halton be joined as a party to the proceedings pursuant to the provisions of s 8.15(2)(a) and (b) of the EP&A Act, and for that reason I do not need to consider the alternative claim in relation to the UCPR.

36. The determination I have made, based on the issue as identified in the Statement of Facts and Contentions, is that I grant leave for Ms Halton’s Statement of Facts and Contentions to be filed in Court, and I grant Ms Halton, who will become the Second Respondent, leave to rely on that Statement of Facts and Contentions in the proceedings.

Orders

37. The Court orders:

38. Grant leave to Jane Halton to be joined pursuant to s 8.15(2)(a) and (b) of the Environmental Planning and Assessment Act 1979 (NSW) as Second Respondent to the proceedings;

39. Direct the Second Respondent to file a Statement of Facts and Contentions by Thursday, 4 June 2026 in the terms identified in Annexure E to the Affidavit of Jane Elizabeth Hewitt sworn on 22 May 2026. Once filed, the Second Respondent is granted leave to rely upon the Statement of Facts and Contentions referred to above;

40. Direct the Second Respondent to file and serve a Notice of Appearance by Thursday, 4 June 2026; and

41. By consent, order that each party pays their own costs of the Notice of Motion.

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