Quakers Hill SPV Pty Ltd v Blacktown City Council

Land and Environment Court (NSW)|2012-10-24|Before: Sheahan J, Mr P

Introduction 1This judgment deals with a further application by Sertari Pty Ltd ('Sertari') to be joined as a party to these Class 1 proceedings between Quakers Hill SPV Pty Ltd ('Quakers') and Blacktown City Council, pursuant to s 39A of the Land and Environment Court Act 1979 (Court Act). 2Quakers opposes the joinder of Sertari. Mr Galasso SC appeared for Quakers, and Mr A Pickles for Sertari, but the Council neither supports nor opposes the joinder. 3The project at the heart of these proceedings has been a source of much litigation over recent years, and some of that history must be recited to provide background to the present application, which has been dealt with by the court on an urgent basis.

Relevant Background 4Quakers has, since May 2010, owned land at 9 Nirimba Drive, Quakers Hill (Lot 1 DP853847), which has the benefit of a right of carriageway ('ROC') 7 metres wide, which passes through the carpark of a hotel, the Quakers Hill Inn, located on land at 7 Nirimba Drive (Lot 1 DP806691), owned by Sertari. 5Some or all of the relevant and neighbouring lands were formerly owned by the Commonwealth, and were used for Schofields Airport and HMAS Nirimba. They were declared surplus by the Commonwealth, and ultimately rezoned to permit a multi-unit development. 6The ROC was created in favour of Telecom, as a condition of the development consent granted for the hotel on 18 August 1989. It was registered on 14 December 1990 as part of DP806691, and runs between the Inn and a railway line, and provides the only means of vehicular access to No 9, on which, pursuant to Bly C's decision of 25 October 2006, in Matter No 10063 of 2006, consent was granted to a 2005 application for a development comprising 236 dwellings in two five level residential flat buildings and two levels of basement carparking: Nirimba Developments Pty Ltd v Blacktown City Council [2006] NSWLEC 739. 7When Council notified the proposal approved by Bly C's decision, only Sertari's hotel objected to it, mainly in relation to the use of the ROC. Sertari became the second respondent to the proceedings before Bly C, and all parties engaged traffic experts. 8Sertari's statement of issues (at [15]) identified the following:

Pedestrian Management Plan 16Murrell C dealt at length with the evidence and opinions from the Council's Mr McLaren and the non-council traffic experts, then involved, Hazell for Sertari and Logan for the proponent. Murrell C said (at [10], [16], [17], [22], [23], [26] - [30]): 10 In these proceedings about the right of carriageway the Second Respondent raises the following issues: Legal Issues

Whether the development application can be determined in the absence of the consent by the landowner to the lodging of the development application.
Whether the development application can be determined where it was not accompanied by a Statement of Environmental Effects meeting the requirements of clause 50(1)(a) of the Environmental Planning and Assessment Regulation 2000.
Whether the application should be entertained where it would be futile for the Court to embark on an environmental and planning assessment in circumstances where the landowner's consent had not been given.
Whether development consent can be granted to the application given the lack of precision of the description in this application of the proposed development. Merit Issues
Whether the use of the right of way by vehicular and pedestrian traffic likely to be generated by the proposed development, particularly when coupled with the use of the parking area of the Quakers Hill Inn by its patrons and suppliers, will give rise to an unacceptable level or risk to the safety of those who use the car park.
Whether the likely increased traffic flow traversing the right of way arising from the proposed development will unacceptably impact upon the operations of the Quakers Hill Inn.
Whether construction traffic involved in the development of Nirimba' site will have unacceptable impacts upon the operations of the Quakers Hill Inn.
Whether vehicular traffic (including construction traffic) will have an unacceptable impact on the pavement of the car park within the boundary of the right of carriageway.
Whether Nirimba and its successors in title should be responsible for the on-going maintenance of the right of way and for injuries and other damages which may be occasioned within the right of way as a result of its use by people accessing Nirimba's site.
Whether it is appropriate that the right of way be allowed to be used in circumstances where it will be, or will be seen by the public as, performing the functions of a public road, it not having been constructed to the standards and specifications of a public road. ... 16 The experts agreed on the existing and potential traffic and pedestrian flows. Sketches were provided to show the desired pedestrian route in accordance with Mr Hazell and Mr McLaren and the route of Mr Logan where the road is crossed twice as identified in the traffic report. These routes are shown in the attached figure. 17 Mr Logan considers that the use of the existing path way adjoining the railway land to be safe and a reasonably convenient pedestrian route whereas as Mr Hazell and Mr McLaren said that the only appropriate means for safe pedestrian management is by a path-way immediately adjoining the tavern building. ... 22 Mr Hazell and Mr McLaren said that the desire line for a pedestrian is to go the shortest path that is through the Second Respondents' property on the western side of the right of carriageway. 23 Mr Logan on the other hand is of the opinion that some pedestrians would cross the road, although it would be difficult to quantify what percentage and this will depend on the mix of people that live in the units. The figure attached from the applicant's traffic engineer shows the two pedestrian routes. That is, the one adjacent to the east on rail leased land and the one through the second respondent's property adjoining the western side of the right carriageway. Mr Logan recommends that the lease be renewed to provide a pedestrian path. ... 26 During the hearing the Court inquired about the future of the pedestrian path way currently leased by the Council from RailCorp. Advice was subsequently received from RailCorp in August 2007, including an aerial photograph that also shows the Quakers Hill Inn and the subject site. The advice states: (the proposal) is to construct a new track on the eastern side of the existing track (the other side of the track from this development). However, other work includes relocation of two electrical supply poles from the eastern side to the western side stop this work is expected to occur within the boundary of rail corridor and therefore does not appear to be an issue for this development. ... the main issue appears to be access for RailCorp's engineering and maintenance personnel will stop khaki access is predominantly along the eastern side with the new track will be built. I whether teacher personnel will need to use the western side access via the rim of the drive for access onto the rail corridor with plans, trucks and machinery. The duplication of the Richmond line will support the capability to run additional train services between vineyard and Blacktown. The increase in services is expected to generate additional patronage and demand for rail services, some of which might require the use of the right of carriageway and the pedestrian walk way to access the station. It is possible that the occupants of the development will also access the station using the right of carriageway and pedestrian walkway. 27 On the basis of the evidence to the Court I am satisfied that the pedestrian access, subject to appropriate conditions of consent, would be satisfactory. 28 A deferred commencement condition is required for a pedestrian management plan to detail the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the land to the north-west of Lot 1 and it shall also make provision for safe pedestrian access from Railway Avenue to the Quakers Hill Inn. 29 The experts considered that it would be appropriate to have a maximum speed zone during the construction period, and whether this be 10, 20 or 25 kilometres would be dependant upon whether vehicles could access parking during the construction phase. On this issue the parties agreed on a deferred commencement condition that required a Traffic Control Plan for the right of carriageway to provide for the employment of at least three accredited RTA traffic monitors to control the movement of construction vehicles approaching the Quakers Hill Inn to protect pedestrians in the vicinity. The plan must ensure maintenance of safe, practical and reasonable access to and from all parking spaces, and to and from the loading dock of the Quakers Hill Inn. 30 On this issue that the use of the right of way for both vehicular and pedestrian traffic generated will give rise to an unacceptable level of risk to the safety of those who use the carpark having regard to the patrons and suppliers of the Quakers Hill Inn, I am satisfied on the evidence to the Court that the conflicts can be managed and will not lead to unacceptable levels of risk. This, however will require a management plan to be approved by the Council. 17A PMP was submitted in August 2010, but withdrawn in May 2011. It proposed use of an existing pathway on railway land, but that land was removed from consideration by its being needed for railway line duplication works. A 1999 lease in favour of Council had been surrendered on 20 October 2009. 18A revised version of the PMP, proposing instead the use of Sertari land within the ROC (a more direct route for a pedestrian, but also used by vehicles on hotel and site development business), was provided to Council on 29 November 2011, and these proceedings were commenced, under s 97(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) on 23 March 2012, appealing against the deemed refusal by Council to determine that the relevant condition has been satisfied. 19Sertari's remaining concerns with the PMP were said from the bar table to have influenced the content of Council's Statement of Facts and Contentions, filed in the present case on 2 May 2012, which recites some of the above, and, after setting out Condition 3, notes: Land that was available for the purposes of constructing a pedestrian footway on the north eastern side of Nirimba Drive and the Right of carriageway has since been taken up by the duplication of the Richmond Railway line. The Applicant has provided a Pedestrian Management Plan dated 29 November 2011 which provides for the option of a Shared Zone or the option of the provision of a pedestrian footpath. The Pedestrian Management Plan is undetermined at the time of preparing this Statement. 20Under the heading "Notification of the Pedestrian Management Plan" the Statement of Facts and Contentions says: The Applicant notified the owner of the Servient Land of the Pedestrian Management Plan on 29 November 2011. Council received a submission on behalf of the owner of the Servient Land dated 27 December 2011 that objects to each of the options proffered by the Applicant stating they would expose pedestrians and customers to unnecessary risks due to various traffic conflicts if implemented. The owner of the Servient Land obtained an opinion (dated 22 December 2011) from Andrew Morse (Traffic Engineer) of Parking and Traffic consultants, which provided the following comments: 1 That Option 3 prepared by Mr Coady, (with the inclusion of a minor amendment) represents the most suitable layout for providing both vehicular and pedestrian access to the proposed development; 2 that concerns exist in relation to the matter of liability as the arrangement may result in a public road and footway through the private property of a third party. 21The contentions are then stated as follows:
Pedestrian Safety The use of the shared zone as a means of pedestrian movements is inappropriate. Particulars: (a) Pursuant to AUSTROADS Guide to Traffic Management, Part 8 - Local Area Traffic Management 2008, the use of the shared zone on road environments with a high vehicle to pedestrian ratio is not satisfactory. (b) Pedestrian safety is compromised where lower pedestrian use is observed and as a result, drivers are less likely to be compliant with speed restrictions. (c) Future forecast of traffic flow as part of the traffic modelling undertaken for the release area north of the site indicated significantly high volumes of traffic using Nirimba Drive thus expected high vehicle to pedestrian ratio along this section of Nirimba Drive.
Design of the Shared Zone The proposed design of the Shared Zone is not satisfactory. Particulars: (a) The proposed design of the proposed Shared Zone includes at-grade brick paves threshold treatments. (b) Raised threshold treatments are more effective at controlling traffic speeds within the Shared Zone. 22These contentions reflect the submission made by Sertari's present traffic expert (Morse), in response to the PMP, that the options proffered by Quakers will expose hotel customers and other pedestrians to unnecessary risks from various traffic conflicts. 23Sertari submits that the PMP envisaged by the deferred commencement condition must reflect the pedestrian pathway proposed, assessed and approved by the Court in Murrell C's judgment. The PMP submitted on 29 November 2011 to the Council, in purported compliance with that condition, did not show a pedestrian pathway in accordance with the plan Murrell C had annexed to her judgment. 24In the s 34 process, agreement has been reached to approve the PMP as submitted, regardless of its differences from what was envisaged by Murrell C. It proposed, for pedestrian access to the development, the use of the ROC over Sertari's land, and not use of the railway land. Sertari maintains that this plan is unsafe, and should not be accepted, in view of its departures from the Court's grant of consent. 25The question of the Court's acceptance of the substance of the s 34 agreement will now be the subject of a hearing. The Council confirmed before me, when indicating that it was neutral to Sertari's present application, that it did not intend to appear as a contradictor at that hearing. 26Sertari submits that the Court must have before it all relevant matters, and, as Council has already indicated its satisfaction with the PMP, there will not be an effective contradictor to raise the two significant issues on which Sertari bases its present application: (1) the argument that the proposed PMP is beyond the power of the Council or the Court, because of its inconsistency with the consent which assessed the use of the pedestrian access path along the railway corridor land; and (2) the argument that the PMP is not acceptable on its merits, because it does not provide "a safe pedestrian access from Railway Avenue to the Quakers Inn". 27If joined as a party, Sertari would seek (1) to tender Morse's evidence (2) to cross-examine the parties' experts, McLaren and Coady, and (3) to make submissions on both law and merit. 28All the authorities which guide the Court in the application of s 39A must be viewed in the light of the decision of the Council in the present matter not to be an effective contradictor because of its agreement with the proponent.

The present application for joinder 29This is in fact the third application Sertari has made for joinder in these latest Class 1 proceedings. 30The first application was made on 28 June 2012, but withdrawn. 31The second notice of motion (NOM) dated 16 July 2012 was heard by the Acting Registrar, and joinder was refused on 20 August 2012. 32Sertari filed a NOM for review of that decision of the Registrar on 20 August, and, on 23 August, Quakers filed a NOM seeking the summary dismissal of Sertari's NOM for review. 33I heard that dismissal motion on 28 August, at which time Quakers had agreed with Council, in a s 34 process, on the terms of an agreement resolving the Class 1 appeal, but the agreement had not proceeded because of Sertari's persistence in seeking joinder. 34In my judgment of 31 August ([2012] NSWLEC 200), I respectfully disagreed (at [65]) with two earlier decisions of this Court (to which I shall later refer), insofar as those judgments accepted, without discussion, that a judge of this Court had that jurisdiction, and I held that a judge of this Court lacked jurisdiction to review such a decision of the Registrar. 35Sertari then commenced appeal/review proceedings in the Court of Appeal, against my decision, by summons dated 3 September 2012, seeking (1) an order that the proceedings in this Court be stayed until determination of the Court of Appeal matter; (2) an order in the nature of certiorari that the decision of Acting Registrar Walton be quashed; and (3) an order that Sertari joined as a party to the proceedings in this Court. 36The "Grounds of Review" in the summons were stated as:

The Acting Registrar erred in law, in that she asked herself the wrong question, in concluding that ownership of the land did not give rise to a "special interest" over any other objector, to be joined to the proceedings. The proper question was not whether there was a "special interest", but whether it was in the interests of justice that the applicant be joined.
The Acting Registrar erred in law by asking herself the wrong question in concluding that the Second Respondent had been a meaningful contradictor. The proper question at law under s 39A of the Land and Environment Court Act required the test to be looked at "in futuro" not by reference to past conduct of the Second Respondent. 37On 7 September, in anticipation of the first mention of the Court of Appeal proceedings before Basten JA on 10 September, Commissioner Pearson, before whom the s 34 proceedings had been listed, was advised that, in the wake of the filing of the Court of Appeal challenge, Council and Quakers had agreed not to enter into the s 34 agreement while the Court of Appeal proceedings remain on foot. 38Basten JA expressed the view on 10 September that my decision on jurisdiction was wrong: Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2012] NSWCA 292. His Honour stayed the Class 1 proceedings, and on 17 September extended the stay, subject to granting leave to Sertari to file and serve this present application, which is brought on the basis that Quakers accepts that the parties' agreement not to press the s 34 agreement was "a change in circumstances entitling the applicant" to make a fresh application, and "that there is no issue estoppel arising out of the decision of the Acting Registrar". The Court of Appeal matter is now listed for further mention before Basten JA on 5 November. 39On 14 September, Commissioner Pearson vacated the resumption of the s 34 conference, which had been fixed for 20 September. The parties intend to terminate the conciliation conference, and, if Sertari is not joined in the proceedings, will presumably seek to dispose of the matter by way of a consent orders hearing. 40The present NOM for joinder was filed on 19 September, and came on for hearing on 24 October. Only an order under s 39A of the Court Act was pursued, and not the customary fall-back option of a "Double Bay Marina" order under s 38(2).

The Legal Principles 41Section 39A provides as follows: 39A Joinder of parties in certain appeals On an appeal under section 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979, 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. 42The law governing applications under the section is well settled - the power is facultative and relief is discretionary: Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802, 159 LGERA 361 ('Morrison'), at [42] - [43]. See also Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195, 127 LGERA 293 ('Kavia'), at [3] - [8] and [36]. 43In Metricon Qld P/L v Tweed shire Council [2008] NSWLEC 283, I set out the principles (at [23] - [24]), and Pepper J elaborated on them, in Ali v Liverpool City Council [2009] NSWLEC 107 (at [32]) ('Ali'). 44In 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 ... at [42] and [43]). 45Her Honour 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 ... 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. 46In Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 13 ('Newcastle'), a local community organisation sought orders and directions under only s 38(2). I surveyed the authorities (at [15]), and 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 ['Suttor']). 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.

Submissions 47In his oral submissions, Mr Galasso referred to many of the cases to which I have referred in this outline of principles, noting that s 39A limits the circumstances of joinder, and requires a "two step process" - formation of the opinion required by the terms of the section, then consideration of whether the discretion should be exercised in the circumstances of the particular case. 48Mr Galasso thought the position in Suttor might most closely resemble that of Sertari, and noted that Preston CJ declined to join the party in Suttor. His Honour defined the issues, and designed and directed a process to better accommodate the needs of the unsuccessful application for joinder. Mr Galasso noted that I took a somewhat analogous approach in Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) (See also Lester v Ashton Coal Mining Operations Pty Ltd (No 2) [2011] NSWLEC 177). 49He also urged the Court to be cautious in the exercise of the joinder d1iscretion, and referred the Court to the remarks made by Craig J in Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5, eg at [16], where his Honour referred to Morrison, and commented that "...Neither the power of joinder provided by s 39A nor the utilitarian application of 'Double Bay Marina' participation should be seen as the provision of a plenary power to allow, in each and every circumstance, objectors to development to be joined or participate in a development appeal, with separate representation". 50Mr Galasso also submitted that Sertari's involvement as a party to many earlier proceedings regarding the subject development created no particular entitlement to joinder in the present case. 51In response to that last point, Mr Pickles pointed out that Sertari's involvement had been valuable in the development assessment process. He noted that Murrell C had commented (at [44]): In my overall assessment I have the benefit of not only the experts to these proceedings but also the senior council's officers reports. While I have not been persuaded by the evidence of the second respondent that any of the issues raised would warrant refusal of the development application, however these proceedings, have allowed a number of matters to be ventilated and discussed between the parties which has resulted in the concerns of the second respondent being considered in greater depth, including the maintenance costs of the easement and requiring a deferred commencement such that a plan of management must be prepared prior to the consent operating. 52Mr Pickles relied, in both his written and oral submissions, on Preston CJ's remarks in Morrison (at [57] - [61]): 57 s is not a case where the Court would be deprived of meaningful assistance if the Owners Corporation were not be joined. Sometimes, by reason of agreement being reached between an applicant for development consent and the consent authority, there may be no meaningful contradictor and important issues that the Court needs to consider in order to give a proper and lawful decision, will not be available to the Court. 58 It was this desire to obtain meaningful assistance that led to the Court allowing persons to be heard on an appeal under s 38(2) of the Land and Environment Court Act in what came to be known as a Double Bay Marina order after the name of the case in which such an order was first made: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. Subsequently, the Land and Environment Court Act was amended to include s 39A which expressly allows the joinder of parties. 59 One of the purposes of s 39A, particularly reflected in paragraph (a), is to allow the joinder of a person as a party to enable issues to be sufficiently addressed and hence to inform the Court so that it can give proper consideration to the issues. 60 I do not consider in this case that the Court, if the matter does proceed to a hearing, would not be able to obtain meaningful assistance as to the issues arising in this case, including the issues which the Owners Corporation has raised and which are evident in the material that would be before the Court. Conclusion 61 For all of these reasons, I conclude that this is not a proper case to order the joinder of the Owners Corporation as a party to the proceedings. Accordingly, I dismiss the notice of motion of the Owners Corporation. 53Mr Pickles also relied on (1) the remarks of Handley AJA, who divorced the legal question for the Court about the easement, from the issues for planning authorities regarding its use, and (2) the tendency of planning authorities in some cases to "go quietly" or "play a dead bat" on some objector concerns (he cited Ali and Suttor as examples). 54Sertari cannot be confident, he said, that its submissions will be put to the court, in circumstances where it has a "special interest" in safety matters (on its own land), which could also said to create both a "unique interest", and a matter of "public interest". It wants its expert to confer with those authors of the PMP, and to give expert evidence, and it wants to cross-examine the authors. While the parties know Morse's view, the Court has not heard him, and is now the relevant planning authority. 55Mr Pickles refers in this regard to the following comment in Suttor (at [10]): ...There are, of course, issues raised by the objectors but in order for the Court to be able to address these issues there would need to be some articulation of the issues based upon the objections. Nevertheless there is no doubt that a central issue raised by the objectors is the allegation of an unacceptable adverse impact on views caused by the proposed development... 56Mr Galasso's position is that any such "special interest" has already been accorded a most unusual degree of consideration and accommodation by the Council and the proponent. All its issues have been ventilated and determined already in earlier relevant proceedings, and, in the latest matter, it has been meaningfully engaged, and its submissions considered, by Council and experts (who were given Morse's report), in the preparation of the PMP, which has evolved over time, including the s 34 process. The Council as planning authority again raised the Sertari/Morse issues in its Statement of Facts and Contentions, and the Court as planning authority has dealt with them in that s 34 process.

Consideration 57While it is true that the present Class 1 proceedings are not a development appeal of the type normally envisaged by s 97, the same principles must apply to their disposition. 58However, if Mr Pickles is correct about the making of the s 34 agreement, its effect would be to modify Murrell C's consent, by sanctioning a pedestrian route that does not reflect that which was proposed, assessed and approved by the Court. He submits that such represents an impermissible use of a s 97 appeal of this type. 59As a consequence, there are issues of both law and merit to be resolved in the present proceedings. The Council has arrived at a position where it accepts the position adopted by Quakers, while the neighbouring owner has grounds for arguing threats to public safety, a "special interest" in the outcome (beyond that of the usual objector, and evidenced by the requirement that it be given a copy of the approved PMP), and matters of broader "public interest". 60All limbs of s 39A would appear to be engaged, when only one would normally be sufficient to satisfy the first prong of the accepted test for joinder. 61Council is neutral on joinder and has always acknowledged Sertari's "particular interest in the outcome". While Council was entitled to make its own assessment of Sertari's position, it did so only after the Class 1 appeal was commenced. 62Quakers, on the other hand, has consistently sought to limit the role to be played by Sertari as both parties to the appeal sought a mutually acceptable solution (see correspondence 6-10 July). 63If the matter now moves towards its finalisation in the court without Sertari's position being put, in full, before it, there will be no contradictor. In the circumstances of Morrison, Preston CJ concluded (at [46]) that all the issues "will" be addressed at the hearing, even if it became a consent order hearing. 64I am not confident that that is the correct conclusion to the present argument, even though I acknowledge that Condition 3 does not specifically provide for Sertari's involvement in finalisation of the PMP, and even though Sertari is bound and restrained by the rights conferred on Quakers by the easement. In earlier proceedings, where the Council was an active contradictor, Sertari was certainly considered an appropriate party.

Conclusion 65I have concluded that Sertari should be joined as a party to the current proceedings. Its Notice of Motion dated 18 September and filed on 19 September should be upheld. 66As there appear to be some outstanding issues in this Court's proceedings, apart from the current s 34 process, and, as the Court of Appeal proceedings are still on foot, I will refer the matter now to the Acting Registrar for the purpose of her making necessary directions. 67The question of costs should be reserved. 68My formal orders are, therefore: (1)The intervenor's Notice of Motion dated 18 September is upheld. (2)Sertari Pty Ltd ACN 003729940 is joined as a party to the proceedings, pursuant to s 39A of the Land and Environment Court Act 1979. (3)The question of costs is reserved. (4)This matter is to be placed in the Registrar's list for Friday 2 November 2012. 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: 29 October 2012

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