Mod Urban Pty Ltd v Mid-Western Regional Council

First limb

1. Mr Lamond contended that s 8.15(2) of the EPA Act was clearly designed to be used to join interested parties to proceedings. Although it is correct that s 8.15(2) of the EPA Act is the statutory test for the joinder of parties to proceedings, it is important to heed the words of Preston CJ at [42]-[43] of Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 (Morrison Design): "42 … Under the Environmental Planning and Assessment Act, persons who object to development proposed in a development application or to a modification of a development consent, have no right to be joined as a party to proceedings unless the development is classified as designated development. Objectors to development applications for designated development do have a right of appeal under s 98(1) of the Environmental Planning and Assessment Act and have a right to be joined to an appeal in respect of such development by the applicant for development consent under s 97(4). 43 This is relevant to note because the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation, including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering exercising the power under s 39A. The power under s 39A is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to appeals under ss 96, 96AA, 96A and 97 by dissatisfied applicants for or holders of development consent. Rather, the circumstances in which the Court may order a person to be joined as a party to proceedings of the types listed in s 39A are limited to the circumstances set out in paragraphs (a) and (b) of s 39A. It is to those paragraphs, therefore, that I turn."
2. With this in mind, the first matter that I must consider is the test set out at s 8.15(2)(a) which is whether the applicant for joinder 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.
3. It was raised by the Court and acknowledged by both the Applicant and the Respondent that the there are problems with the substance and form of the affidavit filed by Mr Lamond in support of the Motion. As Mr Lamond is self-represented, elderly, based regionally, and attending the hearing of the Motion by telephone, it was considered appropriate in these proceedings to progress with the hearing of the Motion and have Mr Lamond make submissions to allow him the opportunity to clarify the contention he intends to raise if joined to these proceedings and why it is in the public interest and interests of justice that he be joined.
4. During oral submissions Mr Lamond stated that if joined to the proceedings the contention he proposes to raise is "the destruction of Mudgee's number 1 heritage asset", which he clarified to mean the Theatre.
5. Mr Lamond filed documents with the Court and made written and oral submissions during the hearing of the Motion about the history of the Theatre and its significance to the people of Mudgee.
6. Mr Lamond sets out in his written submission his involvement throughout the last 10 years in seeking to have the Theatre acquired by the Council for the community and his assertion that the best option is for the Council to buy the Theatre for the community to be run by volunteers. That proposal is neither the subject of this Motion nor is it capable of resolution in the substantive proceedings.
7. The submissions I have read and heard from Mr Lamond and the contention that he proposes to raise, all relate to the heritage significance of the Theatre. As such, it is useful at this point to consider the Council's Statement of Facts and Contentions (SOFC). The Council's SOFC was on 24 October 2018 and states that the appeal should be refused for a number of reasons including: 1. unacceptable heritage impacts on the Theatre; 2. unacceptable heritage impact on the Mudgee Heritage Conservation Area (which includes the Theatre); and 3. insufficient heritage information.
8. In determining whether the first ground is satisfied the relevant test to be applied by the Court is whether the issue proposed to be raised has been sufficiently addressed. The heritage significance of the Theatre and the reasons that the development should be refused due to (in part) the heritage significance of the Theatre are particularised in the Council's SOFC over a number of pages.
9. Although these contentions may not be expressed in the form and style that Mr Lamond considers they should be, the test is whether those issues are sufficiently addressed.
10. I find that the contention that Mr Lamond proposes to raise about the destruction of Mudgee's No 1 heritage asset and the heritage significance of the Theatre to be an issue squarely before the Court and capable of being sufficiently addressed, even if Mr Lamond is not joined as a party.

Second limb

1. I am now required to consider the second limb for joinder articulated in s 8.15(2) of the EPA Act and whether it is in the interests of justice or the public interest to join Mr Lamond to the proceedings.
2. When considering the interests of justice, I am again guided by the findings of Preston CJ in Morrison Design at [54]: "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."
3. The DA was lodged on 27 October 2017 and has been notified to the community on two separate occasions. It is the uncontested evidence of Mr Mulligan that Mr Lamond has made two written submissions objecting to the DA and also made a speech in respect of the DA and the Theatre to a meeting of the Council.
4. Upon the filing of the appeal, Mr Lamond was notified (along with other objectors to the DA) by Council that an appeal had been lodged and that he could seek to address the Court as part of the section 34 conciliation process.
5. Mr Mulligan also attests in his affidavit that the Respondent will record notes of any oral submissions made by Mr Lamond at the section 34 conference and that if the matter proceeds to hearing, then the Respondent will seek to tender into evidence both Mr Lamond's written submissions as part of the Respondent's bundle of documents and the record of any oral submissions made by Mr Lamond at the section 34 conference.
6. With regards to the public interest, remarks made by Preston CJ at [54] in Morrison Design are again relevant: "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."
7. Mr Lamond has been provided numerous opportunities to address Council on the issues that concern him, those concerns have been broadly adopted in the SOFC and he also has the opportunity in the upcoming section 34 conference to address the Court about his concerns. As such I do not consider it appropriate to join Mr Lamond to the proceedings in the interest of justice or on public interest grounds.

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: 05 March 2019