Quakers Hill SPV Pty Limited v Blacktown City Council

Land and Environment Court (NSW)|2012-08-31|Before: Sheahan J, Mr P

n City Council (Respondent) Sertari Pty Ltd (Intervener) Representation: Mr I Hemmings, Barrister (Applicant) Mr C Drury, Solicitor (Respondent) Mr P Tomasetti SC (Intervener) Storey & Gough (Applicant) Sparke Helmore (Respondent) Stephen Wawn & Associates (Intervener) File Number(s): 10293 of 2012

Introduction 1Sertari Pty Ltd seeks the review of a decision by the Registrar, refusing an application it made in these class 1 proceedings, but the applicant, Quakers Hill SPV Pty Ltd, contends that the review application ought to be summarily dismissed. 2This judgment deals with the application for summary dismissal, and the giving of some directions for the further disposition of the proceedings, in which some questions of costs have also been raised, and a s 34 conference presently stands adjourned. 3Essentially, the dismissal motion turns on the question of this court's power to review the particular decision of the Registrar, not on the question of whether, in its discretion, the court should intervene in that decision. 4I acceded to Mr Tomasetti's suggestion on Sertari's behalf that the court confine its attention, firstly, to that summary dismissal motion, and then allow all participants time to consider their positions, and prepare for an early hearing of the review motion, if it is found to be within power/jurisdiction.

Background 5The uses and developments involved in these proceedings have been before this and other courts on several occasions. 6The applicant, Quakers Hill SPV Pty Ltd owns land at 9 Nirimba Drive, Quakers Hill, which has the benefit of a right of carriageway 7m wide, which passes through the carpark of a hotel, the Quakers Hill Inn, located on land at No.7, owned by Sertari Pty Ltd. 7The right of carriageway runs between the Inn and a railway line, and provides the only means of vehicular access to No.9, on which, pursuant to the court's decision of 5 October 2006, in Matter Nos 10063 of 2006 and 10989 of 2006, a residential flat building was granted consent: Nirimba Developments v Blacktown CC [2006] NSWLEC 739. 8In matter 10989 of 2006, on 30 July 2008, this court granted development consent for the use of the right of carriageway, subject to conditions, which included deferred contract conditions, one of which required preparation of a pedestrian management plan ('PMP') which was to be submitted to the respondent Council for approval, with a copy to be provided to Sertari as an affected party: Nirimba Developments Pty Limited v Blacktown City Council [2008] NSWLEC 1229. 9The PMP was provided on 29 November 2011, and these proceedings were commenced on 23 March 2012, to appeal against the deemed refusal by Council to determine that the relevant condition has been satisfied. Sertari's concerns with the PMP were said from the Bar Table to have influenced the content of Council's Statement of Facts and Contentions, filed on 2 May 2012. 10The appeal was referred for a conference under s 34 of the Land and Environment Court Act 1979 ('the Court Act'). That conference commenced on 14 June 2012, has continued on several dates, and presently stands adjourned to 20 September 2012. 11The parties to the proceedings have apparently reached an agreement in that s 34 process, but Commissioner Pearson has not yet concluded the matter, as Sertari continues to seek to be either joined as a party, pursuant to s 39A of the Court Act, or granted what has become known as a "Double Bay Marina" ("DBM") order, pursuant to s 38(2) of that Act. 12Section 39A was inserted into the Court Act in 2002, and its application widened in non-controversial ways in 2006. The s 38(2) DBM order is usually seen, and was in the present case, as the "fall back position" for an intervener, if joinder is denied. 13A Notice of Motion ('NOM'), brought by Sertari to achieve orders under s 39A or s 38(2), on 16 July 2012, was heard by the Registrar on 25 July, pursuant to the Chief Judge's instrument of delegations dated 28 February 2011, issued under s 13 of the Civil Procedure Act 2005. 14That NOM was dismissed by Acting Registrar Walton, in a reserved judgment, on 20 August 2012: Quakers Hill SPV Pty Ltd v Blacktown City Council (Unreported, NSWLEC Acting Registrar Walton, Matter No 10293 of 2012, 20 August 2012). 15Sertari's NOM for review of that decision was filed on 20 August, immediately after the Registrar's decision. On 23 August, the applicant filed a NOM (dated 22nd), seeking various orders for costs, and, on 24 August, it filed a further NOM (also dated 22nd), which is the primary present concern of the court, seeking the following orders: 1.That this motion be returnable instanter. 2.That the motion filed by Stephen Wawn & Associates and dated 20 August, 2012, be summarily dismissed. 3.Costs. 4.Such further, or other, Orders as the Court thinks appropriate. 16It is also relevant background to here note, for present purposes, that, on 28 June 2012, Sertari had filed a NOM (its first joinder NOM), returnable on 11 July, seeking a s 39A order, but not a s 38(2) order. Following some dealings between Sertari and the applicant, that NOM was withdrawn on 11 July, with each party to pay its own costs. When the NOM dated 16 July (its second joinder NOM), which the Registrar duly dealt with in her judgment, was filed, Sertari chose not to attend the s 34 conference on that date. That second joinder NOM added the alternative claim for the DBM order. 17I also record that Sertari also filed on 18 July 2012 an undated NOM seeking orders restraining the applicant and respondent from "executing and/or entering into consent orders finalising these proceedings".

Joinder Applications 18The law on joinder applications and s 38(2) orders is well settled. The power is facultative, and relief is discretionary: Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361, at [42]-[43]. See also Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293, at [3]-[8], and [36]. 19In Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11 ('Hardie'), Pepper J defined the s 39A process (at [25]) in these terms: Section 39A provides for a two stage process before joinder can be permitted. First, the Court must be satisfied that the circumstances of sub-paragraphs (a) or (b) are met, and second, if they are, the Court must determine if it is appropriate to exercise its discretion to join the putative party (Bongiorno Hawkins Frasetto Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 at [6] and Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361 at [42] and [43]). 20Her Honour then drew attention (in [30]) to the following statement of Lloyd J in The Sabian Mandaean Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 (at [14]): Even if I am wrong in finding that the contentions sought to be raised by Ms Butler are not all covered by the statement of facts and contentions raised by the Council, the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think to be sufficiently important does not automatically warrant an order for joinder under s 39A: see Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293 at [36] per Pain J. Moreover, it is not sufficient merely to establish the matters described in subs (a) and (b) of s 39A and the Court may consider the nature of the issues which an applicant for joinder seeks to raise in the context of the overriding objective of the quick, just and cheap resolution of the proceedings. 21In Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 13 ('Newcastle'), a local community organisation sought orders and directions under only s 38(2), and I stated the relevant principles in these terms: 17. The power to make orders under ss 38(2) or 39A is discretionary, and is used only occasionally. The starting point is clearly observing the line to be drawn between the rights of citizens with views about proposals, and the duty of consent authorities to take those views into account, and, where appropriate, give them proper expression in planning appeal proceedings. The test is that expressed in s 39A - are important views adequately raised by the contradictor, and/or do the interests of justice, or the public interest, require a further voice to be heard? 18. The concerns of objectors are heard through their written objections being put before the court, pursuant to practice notes and specific directions, by the Council resisting the appeal, and by the opportunities afforded to objectors to be heard in s 34 conferences, on-site hearings, and sometimes in the courtroom. It is the Council's duty and role to conduct the appeal, once the court steps into its development control shoes, and there is no inherent fault in the Council choosing its own priorities among issues and objections (see Kavia at [36]). Collaboration with objectors in running appeals is commonplace (see Michael Suttor Pty Ltd t/as Michael Suttor Architects v Woollahra Municipal Council [2009] NSWLEC 148, (2009) 169 LGERA 29). 19. Participation in the on-site processes provides the opportunity for the group to raise the detailed matters listed in Ms Simmons's submissions at par 16, and it is clear from its documentation that the group is well capable of this task. 20. I have concluded that it is not necessary to make the order sought in this case in order for all EVCARES's concerns to be properly ventilated and considered at the hearing. I am satisfied that Council has demonstrated it has put the relevant concerns before the court. The capacity of the Commissioners and Judges who deal with such cases as this ought not be underestimated. It is common for the material before them to be more voluminous and detailed than that before the consent authority at the time of refusal. The test for the making of the orders under ss 38(2) or 39A requires something " special " or " additional " to be made available to the court only through such an order, and it has not been satisfied in this case. 22On the hearing of its joinder application in the present matter, Sertari placed comprehensive submissions before the Registrar, primarily to the effect that it would raise an issue that the court should consider in the substantive proceedings - an issue raised in the first contention in Council's Statement of Facts and Contentions. 23Sertari submitted then, and still says, that that issue would not be likely to be sufficiently addressed if it is not joined as a party, and that it is in the interests of justice, and in the public interest that Sertari, as owner of the affected land be so joined or, alternatively, be permitted to adduce expert traffic engineering evidence, cross-examine witnesses, and make submissions in these proceedings.

Registrar's Decision 24In her judgment dismissing Sertari's application, the Registrar recorded relevant background to the matter, in detail which need not be repeated here. She then set out the relevant law, in my respectful view, correctly, then examined closely all Sertari's submissions, under one general and seven specific headings, and determined to reject them. 25It will suffice for present purposes if I quote the last few paragraphs from the Registrar's judgment: 61.... Although this is a case that has resolved I am satisfied that Blacktown Council has been a meaningful contradictor and the issues of public safety that Sertari wishes to raise have been given proper consideration by the Council. 62.In summary, I disagree with Sertari's submission that they will be able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if it were not joined as a party. In my view those issues have been raised, Blacktown Council has considered them both before and at a s 34 conference. Both parties' experts gave evidence at the s 34 conference that they read Mr Morse's letter and even after considering the issues raised they still supported the PMP the parties had agreed upon. In the end the Council reached a different conclusion about those safety issues and the PMP than Sertari, but as can be seen from Morrison dissatisfaction with an outcome is no reason to be joined. 63.I also disagree with Sertari's submission that in the interests of justice and in the public interest, as land owner of the affected land, they should be joined to the proceedings, or alternatively be permitted to adduce expert traffic engineering evidence, cross-examine witnesses and make submissions in these proceedings. In my view, if this was the case the legislature would have recognised that and such a right would have been incorporated into the legislation. Even if that was wrong, in my view whilst they might be the owner of the land it is burdened by a right of way, I can't see that they have rights beyond that of any other objector. 64.Even if the more substantive issues had persuaded me to join Sertari, I would have exercised my discretion to disallow the joinder. I consider that Sertari was given meaningful opportunities to have their issues considered, they did not take up all of those opportunities. In addition given the stage the proceedings have reached I do not consider it appropriate for the court to intervene in such a way as to prevent the parties from entering their agreement. In my view to do so would be contrary to the intent and spirit of the Land and Environment Court Act and the Environmental Protection and Assessment Act. 65.Very little was said about why I would make a Double Bay Marina order. On this point, in my view this is not an appropriate case to make such an order. For all the reason stated above there is nothing that Sertari can add by giving evidence that has not already been addressed by the council. In the unique circumstances of this case I see no utility in making such an order, if the parties are correct and an agreement has been reached there will probably not be an opportunity to give evidence in any event. If that situation changes Sertari might like to make another application, but in the current circumstances I decline to make the order under s 38(2).

Review Applications 26The application for review of the Registrar's decision is brought before the court under Uniform Civil Procedure Rules 2005 ('UCPR') r 49.19, which provides: Review of registrar's directions, certificates, orders, decisions and other acts If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. 27The relevant principles to be applied are well-established, as a result of decisions such as Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 ('Tomko'). 28Tomko was applied by the present Chief Judge in cases in this court such as Michael Suttor Pty Limited trading as Michael Suttor Architects v Woollahra Municipal Council [2009] NSWLEC 148; (2009) 169 LGERA 29 ('Suttor'), Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260, and Taylor v Port Macquarie Hastings Council [2009] NSWLEC 175, and by me in J & M Mir & Ors v Valuer General [2009] NSWLEC 15, and Jeray v Blue Mountains City Council [2011] NSWLEC 113. Of those cases, only Suttor involved review of a Registrar's decision on joinder, but so too did Hardie (see [19] above). 29The court will intervene in such delegated decisions in the interests of justice. It is not necessary to find an error of law, as such, on the Registrar's part. I said of such reviews in Sky Design and Concepts Pty Limited v Pittwater Council (No 4) [2009] NSWLEC 129, at [38]: It is not necessary for the applicant for review to prove an error of law; there could be changed circumstances or fresh evidence, and there could be an argument resting on the "interests of justice in the circumstances of the case". The court must be satisfied on review that the order (or direction etc.) challenged was "reasonable". Connell v Armidale City Council [1995] NSWLEC 110. I overturned the order in Mir in all the circumstances of that case. 30That statement has been quoted with approval by other Judges of the court, e.g. by Biscoe J in Xiang Rong Investment Pty Ltd v Ku-Ring-Gai Municipal Council [2012] NSWLEC 44, and by Pepper J in Parcell v Leichhardt Council [2012] NSWLEC 77. (None of these three cases involved a question of joinder).

Applicant's Submissions on Power 31Mr Hemmings submits on the applicant's behalf that the review can be sought only by a "party" to (any) "proceedings", pursuant to the actual words of UCPR 49.19, quoted above. 32The NOM for joinder or a s 38(2) order, is not a "proceeding" in its own right, but an application by "a person" (a non-party) to become a "party" to an existing "proceeding". When such a NOM is before the court there are still only two parties to the proceedings, plus the "applicant on the motion". 33The court's decision on it is "final and conclusive", pursuant to s 56 of the Court Act, subject only to the operation of Division 2, which includes s 56A and s 57. 34Section 56A provides for an "appeal" to a Judge, by a "party to proceedings" against an order made by one or more Commissioners, and, by exclusion, not any order made by another officer of the court. Section 57 provides that such a "party" may appeal to the Supreme Court against an order or decision of the court, including an interlocutory one, "on a question of law", not, by exclusion, on a matter of procedure. 35The Supreme Court Act 1970 (ss 48 and 69) provides for a continuing review jurisdiction over other courts, with power to grant relief formerly exercised through what were known as the prerogative writs (including certiorari), and the applicant submits that it is to that court (in practice the Court of Appeal) that Sertari must go to seek relief from the Registrar's decision adverse to its interests. 36Mr Hemmings drew attention to this court's decisions in Suttor (by Preston J) and Hardie (by Pepper J), to both of which decisions I have referred above (see, respectively, [28] and [19]). 37He pointed out that in both those cases the court appeared to assume it had power/jurisdiction to review a joinder decision. Neither judgment recorded any submission made on that question, nor addressed the possibility that the unsuccessful applicant for joinder could not rely on r 49.19, and Mr Hemmings (who was counsel in Suttor) concluded that the issue was (probably) not raised. (See Suttor, at [2]-[3], and Hardie, at [16]-[17]). 38He relied on the three quite different judgments delivered in the Court of Appeal in Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 LGERA 173 ('Lowy') to submit that an aggrieved party can seek a review in this court, where error is not required, but that an aggrieved non-party applicant for joinder had to go to the Supreme Court, and demonstrate error. 39Such a dichotomy is dictated by the terms of relevant provisions and is not an "absurdity", just as having the status for objectors depend on the classification of the subject development does not create an absurdity: s 97 c.f. s 98 of the Environmental Planning and Assessment Act 1979 - Lowy at [84]-[85].

Sertari's submissions on power 40Mr Tomasetti submits on Sertari's behalf that the relevant provisions, including r 49.19, must be construed purposively, expansively, beneficially, and practically, to provide relief where relief is appropriate. 41He relied on s 33 of the Interpretation Act 1987 to support a "purposive" approach to the interpretation task: Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 42He also referred the court to the comments of Mason and Wilson JJ in Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia ('Cooper Brookes') [1981] HCA 26; (1981) 147 CLR 297, at 320 (emphasis mine): Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute. There is a similar problem with the related so-called 'golden rule' of construction. There are statements of the rule which would confine the courts to the ordinary grammatical sense of the words used unless that produces an absurdity or inconsistency. It is to be noted that Dixon J. in Broken Hill South Ltd. V. Commissioner of Taxation (N.S.W.) (29) observed that departure from the ordinary grammatical sense is not legitimate unless there is 'some obscurity or some inconsistency', through it may be that 'obscurity' was intended to be a reference to 'absurdity'. For the reason already given in the discussion of the literal rule, departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency. In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction. 43Their Honours went on (at 320-321) to discuss the interpretation of language which is "intractable", or the strict interpretation of which would result in outcomes which could be variously described as "absurd", "extraordinary", "capricious", "irrational", or "obscure". 44Mr Tomasetti noted that the terms "party" and "proceedings" are rarely defined in relevant statutes or rules. 45Section 21 of the Interpretation Act does not define "proceedings" at all, but defines "party" as including "an individual, a corporation, and a body corporate or politic". 46Section 4 of the Federal Court of Australia Act 1976 (Cth) defines "proceeding" as "a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal". 47The UCPR dictionary includes the following definitions: active party, in relation to any proceedings, means a party who has an address for service in the proceedings, other than: (a) a party against whom judgment has been entered in the proceedings, or (b) a party in respect of whom the proceedings have been dismissed, withdrawn or discontinued, being, in either case, a party against whom no further claim in the proceedings subsists. opposite party means defendant (in relation to a plaintiff) and plaintiff (in relation to a defendant). 48On the distinction to be drawn between a "party" and a person who is not a party, I note that r 39.49 provides (my emphasis): Enforcement by or against non-party (1) If, in any proceedings, a person who is not a party obtains an order, or an order is made in favour of a person who is not a party, that person may enforce the order as if that person were a party. (2) If, in any proceedings, a judgment or order may be enforced against a person who is not a party, the judgment or order may be enforced against that person by the same means as if that person were a party. (3) If, in any proceedings, compliance with a judgment or order may be enforced against a corporation that is not a party, any senior officer of the corporation is liable to the same process of enforcement as if the corporation were a party. 49Mr Tomasetti submitted that Sertari is a corporation and has an address for service, which it notified in documents filed in these proceedings, so it is a "party". (However, Mr Hemmings counselled the court to exercise care when interpolating into one Act any definition from another unrelated Act - see Tender Center Pty Ltd v Department of Fair Trading [2001] NSWSC 153, at [19], and the cases there discussed). 50Mr Tomasetti submits that, while its joinder NOM is before the court, Sertari is a "party" to it, and, if it succeeds, the company becomes a "party" to the proceedings themselves. In the joinder NOM "proceedings" all three participants are "parties", and a purposive interpretation of r 49.19 is called for to facilitate the power of this court to review any exercise of its delegated power. It would indeed be an "absurd" result (1) that the applicant would have the right to seek review, had Sertari won, and/or (2) that a person with such a proprietary right adversely affected by the case before the court, as Sertari in this case, had no such right to seek review, and/or (3) that Sertari had to commence separate Court of Appeal proceedings to get relief. He asked the court to consider also what the position would be if the court joined a new party "of its own motion" (as allowed by s39A). 51He further submitted that the learned Chief Judge would have satisfied himself that the court had the requisite power, when his Honour reviewed the decision before him in Suttor, and that Pepper J would have done the same when she chose to follow Suttor in Hardie. 52He too relied on Lowy, and drew attention also to my comments in Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116 ('Ashton Coal'). 53The Intervener in Ashton Coal (Mr Franks) was represented by an agent, and the parties by eminent counsel. Faced with that disadvantage, I had to consider whether I had any power to grant Franks any relief when two Commissioners refused to join him as a party. The proceedings before the court were not covered by r 49.19. However, early in my lengthy judgment (at [26]), I said (emphasis in original): Mr Franks is not a party to the substantive proceedings, and his NOM acknowledges on its face that the Commissioners' decision on joinder involved an exercise of discretion. Accordingly, even if the joinder NOM is properly regarded as a proceeding in its own right, in which Mr Franks is a " party ", the Commissioners' decision on it must be seen as " final and conclusive " in accordance with s 56 of the Court Act , and not subject to appeal. There is no other statutory provision for it to be reviewed by the court, so Mr Franks' present NOM must be deal with as an application by him to " set aside " the Commissioners' decision, and reopen the court's consideration of his joinder NOM.

The Lowy Decision 54As both sides of the present argument rely on various judicial pronouncements in Lowy, it is necessary to consider that decision rather closely. 55Mr Lowy objected, on both legal and merit grounds, to his neighbour's proposal to extend a ground floor terrace on the area of his property at the edge of Sydney Harbour. The Council officers recommended consent be granted on certain conditions, but Council refused consent on the grounds of the proposal's "adverse impact on the aural and visual privacy of the adjoining dwelling". 56Mr Lowy's neighbour (Mr Paino) lodged a s 97 appeal, and Mr Lowy sought joinder, pursuant to Part 8 Rule 8 of the Supreme Court Rules 1970, as then applied to the matter. Cowdroy J refused joinder because it "necessarily gives rise to appeal rights", and possibly questions of costs, but he made a DBM order in favour of Mr Lowy. 57Lloyd J upheld Paino's appeal, and granted consent on conditions, holding that a relevant provision of the applicable LEP was a development standard and not a prohibition, and need not be complied with in the circumstances (SEPP 1). Mr Lowy appealed to a strong bench of the Court of Appeal (Mason P, Handley and Giles JJA), seeking reversal of Cowdroy J's decision, and relief (in the nature of certiorari) under s 69 of the Supreme Court Act from Lloyd J's decision, on the grounds of jurisdictional error or error on the face of the record. 58Mason P and Giles JA upheld Lloyd J's conclusion that the relevant provision of the LEP was a development standard, and so amenable to SEPP 1, but Handley JA found it to be a prohibition. Hence the appeal against the grant of consent was dismissed by a 2:1 majority. 59The court extended the time within which Lowy could apply for leave to appeal from Cowdroy J's decision, and granted such leave, but dismissed that appeal. 60Handley JA noted (at [7]-[8]) that the DBM order "substantially, if not completely, protected the objector's position in the appeal" by Paino to this court, but "did not in truth make him a party" - his Honour cited s 57(1) of the Court Act, but continued: 8... Assuming, for present purposes, that the objector had standing as a party to the notice of motion to appeal from the refusal of Cowdroy J to order that he be made a party to the appeal, leave to appeal would be required (s 57(4)). No such application was made. Its only purpose would have been to obtain a right of appeal to this Court if the developer succeeded. This Court discourages applications for leave to appeal in interlocutory matters of practice and procedure, especially where the application can be seen as premature, and it is virtually certain that leave to appeal would have been refused. The objector and his advisers acted properly in not making such an application. 61The analysis of the whole matter, in both its relevant contexts, by Giles JA, is of relevance and interest, and should be quoted at regrettable length. After noting the history I have shortly recited, his Honour said (at [76]-[89]): 76Mr Lowy wished further to contest the grant of consent to the extension of the terrace. Section 57 of the Land and Environment Court Act 1979 ("the Court Act") provides that a "party to proceedings" may appeal to the Supreme Court, but Mr Lowy had been refused joinder as a party to the Land and Environment Court proceedings. ... 77... Any appeal from the decision of Lloyd J pursuant to s 57 of the Court Act was confined to a question of law, and Mr Lowy relied on the same wrong holding for error of law in the event that he was able to prosecute an appeal. 78The active parties in this Court were Mr Paino and Mr Lowy. The Land and Environment Court and the Council were joined in the summons, but both filed submitting appearances. 79In my opinion Lloyd J was not in error in regarding the relevant provision of the LEP as a development standard. Mr Lowy must therefore fail in this Court. Since it may be material to the further rights of the parties, however, it is appropriate to address to some extent other issues raised. The appellate route 80Mr Lowy made clear that this was very much a fall-back. However, whether he can appeal is material to whether the discretionary remedy of certiorari should be granted. 81The issues raised, apart from error of law in regarding the relevant provision of the LEP as a development standard, were whether Mr Lowy should have an extension of time to apply for leave to appeal from the decision of Cowdroy J, whether he should have leave to appeal, whether Cowdroy J was in error in refusing to join him as a party, and whether he should have an extension of time to appeal from the decision of Lloyd J. It was not disputed that, if this Court overturned Cowdroy J's decision and ordered that Mr Lowy be joined as a party to the Land and Environment Court proceedings, Mr Lowy would have current standing to obtain an extension of time to appeal from the decision of Lloyd J and prosecute that appeal. 82There was also some discussion, initiated by the Court, of Mr Lowy's standing to appeal by virtue of the leave granted by Cowdroy J to appear in order to call evidence, cross-examine witnesses and make submissions. 83For the reasons which follow, I do not think that error has been shown in Cowdroy J's refusal to join Mr Lowy as a party. 84Under the EPA Act the procedures by which development consent is obtained differ according to the category of development. Particular provisions apply for local development, State significant development, designated development and integrated development, and the categories can overlap. Mr Paino's development was not in any special category. In particular, it was not designated development as provided in the EPA Act. ... 89Under the EPA Act the contest was between Mr Paino as the applicant for consent and the Council as the consent authority. Participation rights in some circumstances given to others did not arise. Mr Lowy was not a party to Mr Paino's appeal, and was not given an entitlement to be heard as if a party to the appeal. 62Giles JA went on to discuss the applicability to this court, and the operation, of Part 8 Rule 8 of the Supreme Court Rules, and some authorities relevant to it, and continued ([94]-[103]): 94Implicitly, however, Cowdroy J found that Mr Lowy was not a necessary party. His Honour's reasons must be read as a whole in order to understand his conclusion as to Pt 8 r 8. 95His Honour said (Paino v Woollahra Municipal Council [2002] NSWLEC 51 at [14]-[15]): "14. The joinder of a party is a serious matter because it necessarily gives rise to appeal rights and also ultimately possibly to questions of costs. Mr Craig of senior counsel, who appeared with Mr Maston for the objector, was unable to nominate any specific case in this Court where in such a matter as that before the Court a joinder had been made. 15. In this case the Court is satisfied that the interests of justice would not be served by making an order joining the objector as a party. It could defeat the purpose of achieving an expeditious and cost effective result in the proceedings. However, that is not the end of the matter. The question is whether some other form of relief should be granted." 96His Honour went on to consider the grant of leave to appear in order to call evidence, cross-examine witnesses and make submissions. He noted hat the Council was undecided whether to oppose the appeal actively, and said at [21]: "21. In this case the court considers that the objector is entitled to be apprehensive that his interests might not be served if some form of representation is not permitted. The alleged impact on his property could be severe. There may be matters which have not been fully investigated and will not be investigated if council determines not to proceed with opposition to the Class 1 appeal." 97This is not consistent with finding that Mr Lowy was a necessary party. Necessity for joinder as a party involves how else the position of the party applying to be joined can adequately be met. His Honour considered that Mr Lowy's position would be adequately served by participation, short of joinder as a party, pursuant to the leave granted. 98The Council was a proper contradictor in the appeal. Cowdroy J noted its indecision, but the Council had not determined to acquiesce in the appeal (and in fact the Council participated to uphold its refusal of consent). Mr Lowy had an obvious interest. But it was not a case in which there was no active contradictor ... The dispute, that is, the question whether Mr Paino should have his development consent, could be effectually and completely determined and adjudicated upon with Mr Lowy's participation pursuant to the leave granted. 99With respect, it can not be said that Cowdroy J's treatment of the matter was satisfactory. However, assuming that there is room for Pt 8 r 8 so far as it provides for joinder of a necessary party, I do not think that error has been shown in the implicit finding that Mr Lowy was not a necessary party. 100I earlier adverted to discussion of Mr Lowy's standing to appeal by virtue of the leave granted by Cowdroy J to appear in order to call evidence, cross-examine witnesses and make submissions. It appears that an order granting leave of this kind is regularly made in the Land and Environment Court, and has achieved the shorthand of a "Double Bay Marina order" (from Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314). Its basis is said to be s 38 of the Court Act. It is not necessary to investigate whether this is a sound basis. 101... Cowdroy J did not intend that the leave granted would amount to making Mr Lowy a party to the proceedings, since he refused to join him as a party, or that Mr Lowy should be able to appeal, since a reason for the refusal was that he should not have appeal rights. His Honour adverted to at least some consequences of joinder as a party when he noted that joinder "gives rise to appeal rights and also ultimately possibly to questions of costs", clearly enough intending that neither consequence should flow from the leave granted. Other consequences would have included the ability to have discovery and inspection of documents and to administer interrogatories. Perhaps a participant in proceedings may be made an intervener with a right of appeal inadvertently, but not in these circumstances. 102Mr Lowy's counsel also eschewed any submission that for the purposes of the right of appeal to this Court conferred by s 57 of the Court Act on "[a] party to proceedings" the leave granted sufficiently made Mr Lowy a party to the proceedings. 103Since Cowdroy J did not wrongly refuse to join Mr Lowy as a party to the Land and Environment Court proceedings, Mr Lowy can not succeed by the appellate route. I see no sufficient reason to decline to extend time and, since the matter has been fully argued, I would grant leave to appeal from the decision of Cowdroy J, but the appeal should be dismissed. Mr Lowy does not get to an appeal from the decision of Lloyd J. 63Mason P expressed (at [2]) his agreement with Giles JA on the consent issue and with the orders his Honour proposed (at [126]), but added the following caveat on the joinder/DBM issue: 4I would reserve my position on the procedural aspect of the appeal insofar as Giles JA is satisfied that Cowdroy J did not wrongly refuse to join Mr Lowy as a party to the Land and Environment Court proceedings. I am troubled about the propriety of framing the order with the specific intent of restricting appeal rights and for no other apparent reason. 5Furthermore, if there is power to make a "Double Bay Marina order" (cf Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314) stemming from s 38 of the Land and Environment Court Act 1979, then I am far from convinced that the active intervener status thereby conferred did not make Mr Lowy a party, with ensuing appellate rights (cf O'Keeffe Nominees Pty Ltd v BP Petroleum Ltd (1995) 55 FCR 591), regardless of Cowdroy J's intention otherwise.

Consideration and Conclusion 64I have concluded, on the basis of the analysis by Giles JA in Lowy, which I gladly adopt, and the cautionary note sounded by Mason P, that the submissions of Mr Hemmings on the applicant's behalf are to be preferred. A non-party in Sertari's situation, following the Registrar's adverse decision, has to seek relief from the Supreme Court and not this court. 65In this regard I respectfully choose not to follow the decisions of my colleagues in Suttor and Hardie in so far as they accept jurisdiction in a Judge of this court to review a Registrar's adverse decision on a joinder application. 66Rather than Cooper Brookes ([42] above) assisting the contrary case, I would apply it to confirm my view of what Mr Hemmings put to the court. In the present case, no "alternative construction which is reasonably open is to be preferred to the literal meaning" of r 49.19, which I consider "conforms to the legislative intent discernible" in the UCPR, which clearly distinguish parties from non-parties (see [47]-[48] above). 67I do not accept that my construction of what now appears in r 49.19 leads to an absurd outcome. Compared to the Federal Court provisions ([46] above), r 49.19 applies to a very specific range of circumstances, and gives parties certain rights not afforded to non-parties, regardless of the level or quality of their interest in the matter at hand. 68The NOM brought by the applicant, filed 24 August, must be upheld, and the NOM filed by Sertari Pty Ltd on 20 August, accordingly, dismissed, for want of jurisdiction. 69Sertari Pty Ltd should pay the applicant's costs on both those motions. 70All other questions of costs, including those of the Council on those two motions, are reserved. 71As I do not now have to hear the review application, the s 34 conference may now proceed on 20 September, or on such other date as the Registrar and the Commissioner decide. 72The Registrar must also consider with the parties what should now occur in respect of the outstanding NOMs, filed on 18 July and 23 August, 2012.

Orders 73The court makes the following orders: 1.The notice of motion filed on 24 August 2012 by the applicant is upheld. 2.The notice of motion filed on 20 August 2012 by Sertari Pty Ltd is dismissed. 3.Sertari Pty Ltd is ordered to pay the applicant's costs on the motions referred to in Orders 1 and 2. 4.All other questions of costs are reserved. 5.The matter is remitted to the Registrar to confirm arrangements for the finalisation of the s 34 conference and disposition of the notices of motion filed on 18 July (by Sertari Pty Ltd) and 23 August (by the applicant). 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: 31 August 2012

(2009) 168 LGERA 260

(2003) 127 LGERA 293

(2002) 123 LGERA 173

(2007) 159 LGERA 361

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