Meriton Apartments Pty Limited v Fairfield City Council & Anor

Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293; Lowy v The Land and Environment Court of NSW & Ors (2003) 123 LGERA 179; CASES CITED: Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555; Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226

APPLICANT: Mr B Preston SC (barrister) SOLICITORS: Meriton Apartments Pty Limited

FIRST RESPONDENT: LEGAL REPRESENTATIVES: Ms P Hudson (solicitor) SOLICITORS: Marsdens Law Group

SECOND RESPONDENT Mr P Tomasetti (barrister) SOLICITORS: Tenants' Union of NSW Co-Op Ltd

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11478 of 2003 Meriton Apartments Pty Limited v Fairfield City Council and Residents Against Lansdowne Eviction Incorporated

JUDGMENT 1 Her Honour: This is an application for joinder as a party by an incorporated association Residents Against Lansdowne Eviction Incorporated ("RALE") pursuant to s 39A of the Land and Environment Court Act 1979 ("the Court Act"). The objects of RALE are to "Keep Lansdowne Caravan Park open for existing short/long term and future residents".

2 Section 39A of the Court Act provides that On an appeal under section 97 or 98 of the Environmental Planning and Assessment Act 1979, the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion: (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that : (i) it is in the interests of justice, or (ii) it is in the public interest,

that the person be joined as a party to the appeal.

3 Fairfield City Council ("the Council") has filed a Final Statement of Issues dated 17 March 2005 which identifies the issue of social impact broadly in issue 4. RALE relied on evidence contained in the affidavit of Mr Burgess dated 15 February 2005. At par 9 Mr Burgess identified eight matters about which RALE wished to call evidence on the issue of social impacts in addition to those identified by the Council. Counsel for RALE argued that even if there was some duplication of evidence, RALE's members had particular concerns that the Council could not adequately represent.

4 The Council's solicitor informed the Court that it wished to bring forward evidence from a social planner which was likely to canvas most if not all of the issues identified by Mr Burgess.

5 The Council did not oppose the notice of motion. The Applicant, Meriton, did not support or oppose the motion but rather stated that it was a matter for the Court. Meriton did put forward submissions it said were relevant to whether or not the Court ought to make the order sought however, which submissions were not supportive of the application.

Finding 6 There are three alternative bases for ordering joinder of a party under s 39A of the Court Act as set out in (a) or (b) or (c). As identified in Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293 and Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555 the power under s 39A of the Court Act is wider than has previously applied in the Court under the Supreme Court Rules 1970 in relation to the joinder of parties. 7 There should only be joinder of a party if there is utility in doing so. There is a need to balance the efficient disposition of proceedings with the need to have all relevant matters brought before the Court appropriately.

8 The thrust of Meriton's counsel's submissions was that all of the evidence RALE seeks to rely on could be brought by the Council through the evidence of its social planner and by calling RALE members to give evidence in the Council's case. It was also submitted that with recent changes in the approach to expert witnesses in Class 1 proceedings the practice of each party bringing its own expert evidence was changing so the argument supporting the need for joinder on this basis was misconceived. While there is some merit in these submissions in relation to recent changes in the calling of expert witnesses, I consider that these matters are essentially related to case management. Case management processes are not a substitute for considering whether or not a party should be joined under s 39A of the Court Act.

9 At this stage of the proceedings it is not possible to say whether the issue of social impact would be likely to be insufficiently addressed if RALE were not joined as a party. There is no basis on which I can assume that the Council will not adequately address the issue by bringing forward relevant evidence and in its written submissions. It can clearly bring forward matters that RALE intends to raise and can call RALE members to give evidence. I do not consider joinder on the basis of s 39A(a) of the Court Act is justified.

10 Turning to subsections (b) and (c) in s 39A of the Court Act, RALE members are short-term and long-term residents of Lansdowne Caravan Park ("the Park") with some residing for up to 20 years. As stated in Mr Burgess' affidavit at par 5: I have lived in the Park for around 3 years. RALE member Zoe Morgan and her husband have lived in the Park for more than 20 years. Many of the people who live here have been here for more than 5 years and we see it as not just our homes but our community. We are very positive about living in the Park and want to be able to preserve our community and continue to enjoy living in our homes.

11 I accept that the interests of the members of RALE are not the same as those of the Council. This is consistent with the approach taken by the Court of Appeal in Lowy v The Land and Environment Court of NSW & Ors (2003) 123 LGERA 179 where an adjoining owner was found to have an interest greater than that of a general member of the public. While the Council will no doubt act in what it perceives to be the public interest, the interests of RALE members lie in the preservation of the Park's community and any adverse impacts likely to arise from the Park's closure. Its objectives are clearly directed to matters which are served by its participation in these proceedings. While its members' interests are not the same as a proprietary right, as considered by Lloyd J in Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226, it is not necessary in my view to demonstrate such an interest in order to satisfy the making of an order under s 39A(b) or (c) of the Court Act. I consider that the interests of RALE are sufficiently different to those of the Council that it is in the interests of justice that RALE participate in the proceedings as a party. That will enable RALE to participate fully in the proceedings and present its perspective on the social impact issues. 12 As it is to be joined as a party RALE will be bound by case management processes presently being undertaken in relation to the calling of expert witnesses. Further, as there is no utility in the Court hearing the same evidence twice there will need to be discussions between the Council and RALE to ensure that there is no duplication of evidence between the two Respondents. 13 RALE's counsel has stated that it only wishes to bring forward evidence and make submissions in relation to the adverse social impacts of closing the caravan park. Meriton's counsel also proposed as an alternative that RALE be joined on a limited basis, and that it alone deal with social impact issues, relying on the approach of Bignold J in Mahogany Ridge in relation to noise issues when a new party was joined.

14 I do not intend to deal finally here with whether such a conditional order is appropriate when joining a new party. I note that I expressed the view in Kavia Holdings that I did not consider such an approach was contemplated by the legislation. I do not consider such an order is warranted here in any event. To the extent there is any attempt to duplicate evidence as between the parties that can be dealt with in case management processes.

Order 15 The Court makes the following orders: 1. That Residents Against Lansdowne Eviction Incorporated be joined as a party to the proceedings as the Second Respondent. 2. 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.