Plumpton Park Developments Pty Limited v Blacktown City Council

Judgment 1SENIOR COMMISSIONER: By Notice of Motion filed on 31 July 2013, DEXUS Funds Management Limited (Dexus) seeks an order that that company be joined as Second Respondent to the proceedings and, at the time the motion was filed, that it file and serve a statement of facts and contentions by 4pm on that day. 2The present contest between Plumpton Park Developments Pty Limited (Plumpton Park Developments) and Blacktown City Council (the Council) is set down for a s 34 conciliation conference before me, commencing on site at 9.30am on Monday 12 August. It is that reason, that is the imminence of that conference, makes necessary an early decision on the application for joinder. 3The application is made pursuant to s 39A of the Land and Environment Court Act 1979 (Court Act) that permits, in appeals such as these, amongst other matters proceeding in the Court, that a party may be joined to an 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. 4As Sheahan J observed in Quakers Hill SPV Pty Ltd v Blacktown City Council [2012] NSWLEC 200 at para 18, "the power to join under s 39 is facultative and the relief as to whether such application should be granted is discretionary." 5The first provision in s 39A relates to the addressing of issues that should be considered in a proceeding. This statement is consistent with the overriding purpose of civil litigation set out in s 56(1) of the Civil Procedure Act 2005, that is, "the overriding purpose of this Act and the rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings". 6I observe two things with respect to that provision. The first is that it is not confined to the real issues in the proceedings between the present parties if there are issues that are outside the scope of the current state of pleadings. However, they must be issues in the proceedings, and s 39A of the Court Act provides, as Sheahan J observed, a facultative, discretionary vehicle through which real issues can be brought within the proceedings for hearing and determination. 7The present applicant on the Notice of Motion and the present substantive respondent, Blacktown City Council, have had litigation in the past involving a proposal of the nature currently before the Court in the Class 1 proceedings that are to commence with the conciliation conference next Monday - that is an application to give approval to a shopping centre at Jersey Road, Plumpton. The first application for such a shopping centre on that site was made in about 2008 and was followed, eventually, by a development consent being granted for that purpose. In November 2011, in Class 4 proceedings, Pain J held (in Dexus Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230) that that consent was void and of no effect. 8Essentially, the parties involved in the present proceedings, including the applicant for joinder, coincide with the parties that were involved in the proceedings before Pain J. The applicant on the Notice of Motion is the managing mind of a shopping centre adjacent to the shopping centre proposed to be erected by Plumpton Park Developments. 9In the substantive proceedings, the Council filed, on 2 July 2013, its Statement of Facts and Contentions in the proceedings. It raises two contentions. The first relates to traffic and is a contention in the following terms: The proposal is unsatisfactory with regard to traffic impacts unless the RMS would agree to the proposed sixty per cent cycle time allocation to the shopping centre of the traffic signals to the main access off Jersey Road. 10The second contention, concerning threatened ecological communities, is: Insufficient information has been submitted to enable an assessment of whether the proposal is likely to significantly affect threatened species, ecological communities or their habitats, and therefore whether a Species Impact Statement is required to be submitted and considered. 11The solicitor for the applicant on the Notice of Motion, Mr Paul Lalich, provided an affidavit that was read on the Notice of Motion. Forming the first six pages of Annexure A to that affidavit is a Draft Statement of Facts and Contentions proposed to be filed (or to the effect of that draft) if the applicant on the Notice of Motion is granted leave to be joined. 12The contentions that are there proposed are wide-ranging and extend significantly beyond those raised by the Council, although to some extent, as I will return, in several fashions there is an element of coincidence between some of the matters, that is by topic, raised by the Council and proposed to be raised by Dexus.