Moorebank Recyclers Pty Ltd v Liverpool City Council and Anor

Annetts and Anor v McCann and Ors (1990) 170 CLR 596 Australian Tape Manufacturers Association Ltd v the Commonwealth (1990) 94 ALR 641 Cambridge Credit Corporation Ltd and Anor v Parkes [1974] 2 NSWLR 590 Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 CASES CITED: Developments Pty Ltd [1974] 2 NSWLR 590 Gurtner v Circuit and Anor [1968] 2 QB 587 Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 News Limited and Ors v Australian Rugby Football League Limited and Ors (1996) 64 FCR 410 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78

APPLICANT ON NOTICE OF MOTION Mr T Hale SC SOLICITOR Minter Ellison

RESPONDENTS ON NOTICE OF MOTION LEGAL REPRESENTATIVES: Mr D Wilson SOLICITORS Mark McDonald & Associates Marsdens Law Group Department of Planning

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

41190 of 2008 Moorebank Recyclers Pty Ltd v Liverpool City Council and Anor

EX TEMPORE JUDGMENT 1 Her Honour: These Class 4 proceedings concern the Liverpool Local Environmental Plan 2008 made 29 August 2008 (LEP 2008) which rezoned part of Lot 7 in DP 1065574 (Lot 7) from rural to residential and commercial zones. The rezoning is argued to be contrary to a local planning direction made by the Minister pursuant to the provisions of s 117 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) on 14 July 2007 in respect to flood prone land. A declaration is sought that LEP 2008, insofar as it has zoned part of Lot 7 as residential and commercial, is invalid.

2 Lot 7 is owned by the Applicant on the motion for joinder Tanlane Pty Ltd (Tanlane). The Applicant in the Class 4 proceedings, Moorebank Recyclers Pty Ltd (Moorebank), owns neighbouring land. The motion for joinder is opposed by Moorebank. The motion is supported by Liverpool City Council (the Council), the First Respondent in the Class 4 proceedings. The Minister for Planning, the Second Respondent, has filed a submitting appearance in the proceedings.

3 The application is made pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 which states: If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

4 No Points of Claim have yet been filed in the proceedings as relevant files for the Applicant's case have only very recently been released by the Supreme Court. Tanlane Pty Ltd 5 An affidavit of Mr Walker solicitor dated 18 December 2008 was relied on. He refers to the making of the LEP which changed the zoning on part of Lot 7 from rural to residential and commercial zoning in August 2008. He is instructed that Tanlane intends to make further development applications in relation to the areas subject of the rezoning. Tanlane's rights to develop the land will be directly affected if the orders sought in the summons are made.

6 This is the third set of proceedings concerning land use and planning as between the parties (albeit in different courts in relation to different causes of action concerning the same land). Tanlane argues that its interests will be directly affected by the Class 4 proceedings because if these are successful its ability to develop its land under the LEP will be adversely affected. The proceedings seek to impact only on Lot 7 of the LEP. It is the only land owner affected by the proceedings.

7 Natural justice (per Annetts and Anor v McCann and Ors (1990) 170 CLR 596, Gurtner v Circuit and Anor [1968] 2 QB 587) and the rules of procedural fairness require that it be joined.

8 Joinder will also ensure there is no multiplicity of proceedings as the declaration made by the Court will not bind Tanlane and it could commence separate proceedings seeking a declaration that the LEP as it applies to Lot 7 is valid following the determination of these proceedings (as to the importance of which see News Limited and Ors v Australian Rugby Football League Limited and Ors (1996) 64 FCR 410).

9 Further, in News Limited the primary judge made orders affecting players and coaches who were not parties to the proceedings. The Full Court overturned those orders and held at 524, an order which directly affects a third person's rights against liabilities to a party should not be made unless the person is joined as a party. If made, the order will be set aside.

10 Numerous cases concerning challenges to a statutory planning instrument are referred to in the written submissions where the owner of the land affected by the challenge is a party. Moorebank Recyclers Pty Ltd 11 Moorebank argued there is no risk of multiplicity of proceedings as the declaration will bind everyone including those not a party to the proceedings. No legal interest of Tanlane is affected, only a commercial interest as the decision challenged is a decision of the Council and Minister in making the LEP. No right to be afforded natural justice arises and no issues of procedural fairness arise. Tanlane has not said that it will do any more than support the Council's case. None of the cases relied on by Tanlane are analogous to this matter. For example the facts in Cambridge Credit Corporation Ltd and Anor v Parkes Developments Pty Ltd [1974] 2 NSWLR 590 are not similar to those in this matter. Annetts v McCann concerned a coronial inquiry where the parents who were denied an opportunity to be heard could have had adverse findings make against them by the coroner. No such circumstance arises here.

12 The approach of Dawson J in Australian Tape Manufacturers Association Ltd v the Commonwealth (1990) 94 ALR 641 in considering an application for joinder in the original jurisdiction of the High Court under order 16 r 4(2) as then in force is appropriate to this matter. The fact that it is convenient to join a party because it is better able to marshal evidence and make submissions does not make joinder as a party necessary to determine the issue, as held by Dawson J (at 645). Intervention in an action to support the defendant is not a grounds for joinder. The relevant parties in these proceedings are already joined. Liverpool Council 13 The Council's solicitor stated that while the Council had filed an unconditional appearance, no points of claim have been filed by the Applicant in the Class 4 proceedings so that the possibility of it filing a submitting appearance remains. Finding 14 The declaration of invalidity of part of the LEP sought, if made by this Court, is binding on the world as it is a declaration of a public right rather than a private right inter partes. There is no risk of multiplicity of proceedings as Tanlane will be bound by the declaration sought in these proceedings as will anyone else.

15 Given that the proceedings concern the decision-making processes of the Council and Minister there is no clear basis on which procedural fairness grounds would appear to arise. The circumstance that Tanlane participated in the plan-making process alone does not give rise to any right to be accorded procedural unfairness by participating as a party in these proceedings given that no declaration or order is sought as against Tanlane.

16 The circumstances in Annetts v McCann which gave rise to a finding that the rules of natural justice should operate do not apply here as the decisions under challenge are those of the Council and the Minister.

17 Whether Tanlane should be joined really depends on whether I consider r 6.24 should be applied so that all the issues which may arise in the dispute will be determined as between the parties if Tanlane is joined. I accept the submissions and evidence of Tanlane that its development interests will be adversely affected if the Class 4 application is successful. The challenge by Moorebank is only to that part of the LEP (which otherwise applies to the whole of Liverpool) which relates to Tanlane's land. Tanlane has more valuable development rights under the current residential and commercial zones than the previous rural zone. The examples of similar Class 4 proceedings in this Court referred to by Tanlane's counsel do suggest that generally the owner of the land affected by the challenge is a party to such proceedings; see Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186, Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91.

18 The terms of r 6.24 are broad and do not define the circumstances in which parties ought be joined where it is necessary for the determination of all matters in dispute in any proceedings. As pointed out by Tanlane, were consequential orders sought in the Class 4 application preventing Tanlane relying on the LEP as presently in force it would clearly be a necessary party. The affidavit of its solicitor suggests that it is intending to make development applications in reliance on the LEP although no timeframe for doing so is specified. It is early days in the litigation and therefore difficult to determine all the issues that may arise in the proceedings, for example, whether discretionary issues affecting Tanlane might arise.

19 Given that no points of claim have been filed and the Council's attitude to the proceedings is not yet known, on one view the Notice of Motion should be stood over until the points of claim are filed and the Council's attitude to its participation in the litigation is known. However rather than prolong this motion I consider I should exercise my discretion to join Tanlane as a party. Once the Council's attitude and the issues it intends to press, if any, in response to the Applicant's Class 4 application are known the Respondents must confer to ensure there is no duplication of issues as between them. Further, Tanlane cannot expect its costs of the proceedings to be paid if the Applicant is ultimately unsuccessful and Tanlane has not contributed with any additional issues in the proceedings. 20 The order for joinder sought in the Notice of Motion is granted. The costs order sought in the Notice of Motion is that there be no order as to costs.

Orders 21 The Court makes the following order: 1. Pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 Tanlane Pty Limited is joined as a respondent party to these proceedings. 2. No order as to costs.

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