On 18 March 2019, Mr Angus Witherby filed a Notice of Motion (First Motion) in the Land and Environment Court of NSW (Court) in proceedings between Mod Urban Pty Limited and Midwestern Regional Council (Council). Mr Witherby filed the First Motion as agent for the Mudgee Motelliers Association and the Gulgong, Mudgee and Rylstone Branch of the National Trust of NSW (National Trust). That First Motion was listed for hearing on 27 March 2019.
The First Motion was quickly followed by a second Notice of Motion sent to the court by email on 18 March 2019, amending the orders sought by the Mudgee Motelliers Association and the National Trust (Second Motion).
Two further Notices of Motion were sent to the court by email on 26 March 2019, one seeking the joinder of what is now being called the Mudgee Motellier's Group (MMG) (Third Motion) and a separate motion seeking the joinder of the National Trust (Fourth Motion).
The Third and Fourth Motions were accompanied by two separate affidavits sworn by Mr Witherby on 26 March 2019.
At the hearing of the Motion on 27 March 2019, only the Third and Fourth Motions were moved on, and the First and Second Motions were not pressed.
The Third Motion sought the following orders:
"1. That Angus Witherby be granted leave to act as Agent for the Mudgee Moteliers Group and accordingly that leave be granted for access to expert witness statements that are tendered to the Court.
2. That the Mudgee Motelliers Group be granted leave to appear as a party to the matter, under a Double Bay Marina Order (Section 38(2)) or, failing that,
3. That the Mudgee Motelliers Group be joined under Section 39A of the Court Act"
The Fourth Motion sought the following orders:
"1. That Angus Witherby be granted leave to act as Agent for the Mudgee Motelliers Group and the Gulgong, Mudgee & Rylstone Branch of the National Trust of NSW and accordingly that leave be granted for access to expert witness statements that are tendered to the Court.
2. That the Gulgong, Mudgee & Rylstone Branch of the National Trust of NSW be granted leave to appear as a party to the matter, under a Double Bay Marina Order (Section 38(2)) or, failing that,
3. That the Gulgong, Mudgee & Rylstone Branch of the National Trust of NSW be joined under Section 39A of the Court Act"
Mr Witherby was granted leave to appear as agent for both of the applicants for joinder at the hearing of the motions only.
Mr Witherby also served on the parties to the substantive proceedings two unfiled documents in support of the Motions which were tendered as exhibits in the hearing. These documents were:
1. a document prepared by Wakefield Planning entitled 'Parking Study- Regent Theatre Site 5-7 Church St, Mudgee For Motellier's Group' (Exhibit A); and
2. a form of heritage report on the Regent Theatre prepared by John Bentley (Chair of the National Trust), dated 20 March 2019 (Exhibit B).
The Motions seek to rely on s 38(2) and the former s 39A of the Land and Environment Court Act 1979 ('Court Act'). Section 39A was repealed on 1 March 2018. Accordingly, the Motion should properly have been brought pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 ('EPA Act') and I have considered both Motions on this basis.
The Council and the Applicant oppose the Motions and the grant of any of the orders sought.
[2]
Background
The substantive proceedings relate to a Class 1 appeal brought by Mod Urban Pty Ltd, in relation to the refusal by the Council of development application No. DA0081/2018 (DA) with respect to land at Mudgee. The DA seeks development consent for the adaptive reuse of the existing Regent Theatre building (Lot 1 DP 633977) and the demolition of the existing building at 33 Short Street, Mudgee (Lot 1 DP 543326) for the construction of a hotel with 62 accommodation rooms, cafe, function facilities, rooftop bar and car-parking.
The Council filed its Statement of Facts and Contentions in the proceedings on 24 October 2018, which states that the DA should be refused for reasons including:
1. lack of owner's consent;
2. excessive building height;
3. inappropriate use and form of development on R3 land;
4. unacceptable visual impact of hotel building;
5. unacceptable heritage impacts on the Theatre;
6. unacceptable heritage impacts on the Church Street Site;
7. unacceptable heritage impacts on the Mudgee Heritage Conservation Area; and
8. insufficient information - acoustic assessment; heritage documentation; parking.
The proceedings are listed for an on-site s34 conciliation conference on 5 April 2019.
[3]
The legal status of the Applicants for Joinder
Although MMG and the National Trust have not provided any evidence as to their legal status, the written submissions prepared by Mr Witherby for MMG's application for joinder state: "…the group consists of a group of motelliers, based in the Mudgee area. They are not an incorporated association…I [Mr Witherby] am instructed by Mr Phillips Matchett of the Ningana Motel, a member of the Group."
The written submissions prepared by Mr Witherby for the National Trust's joinder application state: "…the Trust's Branch consists of a formal Branch of the National Trust of NSW, based in the Mudgee area. They do not have a separate legal existence on their own right, having no separate bank account or ABN, …I [Mr Witherby] am instructed by John Bentley, President of the local branch of the Trust…"
The Court understands that MMG and the National Trust are not:
1. corporations incorporated under the Corporations Act 2001 (Cth); or
2. incorporated associations under the Associations Incorporation Act 2009 (NSW).
As set out in the written submissions, Mr Witherby states that he is taking instructions from two separate people said to represent these two groups.
In the case of Leatch v National Parks and Wildlife Service & Anor (1993) 81 LGERA 270, Ms Leatch, who was a member of the Shoalhaven branch of the Australian Conservation Foundation, commenced proceedings in her own name. Filing the Third and Fourth Motions in the name of a natural person was a course of action open to the parties named in the Third and Fourth Motions and, although the Motions appear flawed in their current form, I have considered the two applications for joinder before me on their merits.
[4]
The Statutory Framework
Despite the reference to s 39A of the Court Act, I have proceeded to consider the applications under s 8.15(2) of the EPA Act. That section states:
(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.
In the alternative, Mr Witherby seeks a Double Bay Marina Order under s 38(2) of the Court Act. That section provides:
(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.
[5]
Joinder Test
The first matter I must consider is whether either Applicant for joinder is able to raise an issue that should be considered in relation to the appeal, but would not be sufficiently addressed if that person were not joined as a party.
Mr Witherby prepared separate written submissions for the Third Motion and the Fourth Motion. The submissions in respect of the Third Motion concern the Mudgee Motellier's Group and state that:
"The Group have significant concerns regarding the development as a whole, as has been outlined in submissions on the Development Application. These issues have, by and large, been addressed in the Statement of Facts and Contentions lodged by the Respondents. A notable exception is the provision of information regarding the actual quantum of on-street parking, and also parking that is available within the Church site, that may be potentially available for the development.
The quantum of available on-street parking is not a matter that has been addressed in objector submissions, as such factual information was not available at the time. It therefore represents new information of relevance to the proceedings, rather than re-agitation.
The Group, being of the view that the issue of parking within the CBD of Mudgee in the vicinity of the site is of significant relevance to the considerations of the Court, seek to put forward material relating to actual on street parking provision, as being of material benefit to the Court"
The Council's Statement of Facts and Contentions states at Contention 9:
"Car Parking Provision, Internal Car Park Design and Proposed On-Street Parking Changes
Insufficient car parking has been provided to cater for the peak operation of the Proposal
Particulars
…
(c) The onstreet parking surveys are extremely limited in scope and inappropriate given the surveys were conducted in winter and cover a very short period from 5pm to 8pm on two Fridays and a Saturday in May/June. Accordingly, the lodged traffic and parking impact assessment is insufficient and inadequate to support the proposed function and roof top bar facilities.
(d) The onstreet parking suveys undertaken only show the availability of parking outside of peak commuter periods (5pm to 8pm) during winter only. No parking assessment has been undertaken outside the 5pm to 8pm period, nor during the spring and summer months when higher parking demand occurs…
(f) It is an unreasonable outcome, long term, for the Proposal to rely upon parking on third party land such as the Church Site."
Contention 2.3 of the Council's Statement of Facts and Contentions states:
"Insufficient Information has been provided to assess the impact of the proposed on-street parking changes
Particulars
(a) No concept plan has been provided for the proposed changes to on-street parking along Short Street to create the 60 degree parking areas
(b) The number of additional spaces that will be provided within Short Street to offset the existing three (3) spaces along Church Street has not been quantified.
(c) The three spaces along Church Street will be required to be time restricted to 10-minute parking and approved by Council's LTC.
(d) All on street changes to parking time restriction types along both Church Street and Short Street will need to be fully detailed on an accurate survey plan and submitted to Council for its consideration. There is no guarantee that Council or its LTC will endorse or approve these changes such that the Proposal cannot be approved in its current form.
(e) The Statement of Environmental Effects dated January 2018 outlines a parking provision of 74 spaces while the Traffic and Parking Report dated June 2018 (Rev H) outlines the provision of 58 car parking spaces.
(f) No traffic survey results have been provided indicating the traffic flow at nearby local intersections. Further no SIDRA intersection assessment has been undertaken, or results provided within the traffic report.
(g) No detailed traffic and parking impact assessment has been undertaken for the roof top bar and function centre proposal"
Given the Council's detailed articulation in its Statement of Facts and Contentions regarding the provision of on street parking, I am not satisfied that the first test for joinder is able to be satisfied by the Mudgee Motelier's Group.
As no other basis for joinder was put forward by the MMG, the test for joinder under s 8.15(2) of the EPA Act the joinder application fails.
Turning now to the joinder of the National Trust, Mr Witherby has prepared written submissions setting out the grounds on which the National Trust proposes to be joined as follows:
"The Trust has significant concerns regarding the development as a whole, as has been outlined in submissions on the Development Application. These issues have, by and large, been addressed in the Statement of Facts and Contentions lodged by the Respondents. A notable exception is the provision of information regarding local cultural and heritage significance of the site.
The site is of historical and ongoing cultural significance to the people of Mudgee, and such views may not be adequately ventilated by such experts as the parties might choose to retain, who would likely be focused on the state heritage significance of the building, in particular noting the Interim Heritage Order. The local cultural and heritage significance, in the opinion of the local Branch therefore represents new information of relevance to the proceedings…"
The Council's Statement of Facts and Contentions states at Contentions 5, 6, 7 and 8 as follows:
"Unacceptable heritage impacts on the Theatre
The Proposal will have a negative effect on the Theatre, being a locally listed heritage item under the MWR LEP
Particulars
(a) The Proposal does not meet the aim set out in cl 1.2(2)(b)(iv) of the MWR LEP, namely to encourage the proper management, development and conservation of resources including places and buildings of heritage significance
(b) The Proposal does not meet the objective of cl 5.10(1)(a) and (b) of the MWR LEP, namely to conserve the environmental heritage and the heritage significance of the Theatre, including associated fabric, settings and views.
(c) The Proposal will have a negative impact on the heritage significance of the Theatre, which is a matter for consideration under cl 5.10(4) of the MWR LEP
(d) The sustainable and economic reuse arguments put forward by the applicant as the only realistic development option, do not justify the proposed degree of demolition and redevelopment of the Theatre.
(e) The Proposal does not meet the criteria threshold set out in Council's Heritage Conservation Fact Sheet (No 001 of July 2018), namely that "Council supports the retention of heritage items in their significant form and setting, while allowing sympathetic development to occur"
Unacceptable Heritage Impacts on the Church Site
The Proposal will have a direct negative effect on the setting of the Church Site, being a locally listed heritage item under MWR LEP
Particulars
(a) The Proposal does not meet the aim set out in cl 1.2(2)(b)(iv) of the MWR LEP, namely to encourage the proper management, development and conservation of resources including places and buildings of heritage significance
(b) The Proposal does not meet the objective of cl 5.10(1)(a) and (b) of the MWR LEP, namely to conserve the environmental heritage and the heritage significance of the Church Site, including associated fabric, settings and views.
(c) The Proposal will have a negative impact on the heritage significance of the Church Site, which is a matter for consideration under cl 5.10(4) of the MWR LEP
Unacceptable heritage impacts on the Mudgee HCA
The Proposal will have a negative effect on the Mudgee HCA, listed as C1 on Heritage Map 006G of the MWR LEP
Particulars
(a) The Proposal does not meet the objective of cl 5.10(1)(a) and (b) of the MWR LEP, namely to conserve the environmental heritage and the heritage significance of the Mudgee HCA, including associated fabric, settings and views.
(b) The Proposal will have a negative impact on the heritage significance of the Mudgee HCA, which is a matter for consideration under cl 5.10(4) of the MWR LEP
Unacceptable heritage impacts on other heritage items
The Proposal will have a negative effect on a number of locally listed heritage items in the vicinity of the subject site, as listed on Sch 5 of the MWR LEP."
Under the Mid-Western Regional Local Environmental Plan 2012, heritage significance is defined to include "historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value" (emphasis added), the Council's Statement of Facts and Contentions identifies a number of items of local heritage significance. The Council's Statement of Facts and Contentions also goes on to articulate a number of insufficient information contentions regarding the heritage impacts of the proposed development.
In consideration of the first test for joinder, I am satisfied that the contention proposed to be raised by the National Trust is already squarely before this Court.
As no further grounds for joinder were put forward by the National Trust, the test for joinder fails.
[6]
Is a Double Bay Marina Order Appropriate?
As I have determined that it is not appropriate for an order for joinder to be made for either MMG or the National Trust, I am required to consider a final question concerning whether it is appropriate for an order to be made pursuant to s 38(2) of the Court Act, allowing MMG or the National Trust to participate in the proceedings in some limited manner.
Jagot J noted in Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 in relation to s 38(2) at [5]:
"While s 38(2) is not similarly constrained, the types of consideration that are set out in s 39A no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order."
For the reasons set out above regarding my findings for joinder for each party, I am not satisfied that there are any issues in these proceedings that are not likely to be sufficiently addressed in the absence of some special order being made for the involvement of MMG or the National Trust in the proceedings.
In these circumstances, I am not satisfied that it is appropriate to make an order under s 38(2) of the Court Act.
As a consequence, there is no reason why Mr Witherby, the MMG or the National Trust should access to any expert witness statements tendered to the Court in the proceedings.
[7]
Costs
The Applicant in the substantive proceedings made submissions seeking a personal costs order against Mr Witherby for the costs of the Motion. This was sought on the basis that the two proposed parties do not have legal status and, as such, a cost order cannot be made against them. All parties to the proceedings were informed at the hearing of the motions that the grant of a personal costs order against a representative of a party is outside the delegated powers of the Registrar in this Court. As such, I make no findings in respect of this application.
The Respondent is also seeking an order for its costs of the Motion.
In making a cost order in Class 1 proceedings, r 3.7 of the Land and Environment Court Rules 2007 requires that the Court be first satisfied that an order for costs is fair and reasonable before making such an order. There are a range of circumstances set out in r 3.7(3) that describe the circumstances in which the Court might consider it fair and reasonable to make a costs order.
That list is certainly not exhaustive, and there is a range of case law where the Court has found other circumstances in which it is fair and reasonable to make a costs order.
In making its application joinder, both applicants for joinder were ultimately unsuccessful. That is, it was open to the applicants for joinder to make an application even though that application has put the respondent to the costs of defending the Notices of Motion.
Although there were flaws identified in each motion, I am not of the view that there was any conduct that makes it fair and reasonable for the applicants for joinder to bear the costs of the Applicant and the Respondent in defending the application.
Therefore, I order that each party pay their own costs of the Notices of Motion.
[8]
Orders
The Court orders:
1. The Motions are dismissed.
2. No orders as to costs.
[9]
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: 04 April 2019