Tamworth Regional Council v Independent Planning Commission

Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223; (2010) 177 LGERA 312
Hills of Gold Preservation Incorporated v Independent Planning Commission & Anor [2025] NSWLEC 1194
Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66; (2021) 250 LGERA 318
Winten (No 21) Pty Ltd v Lake Macquarie City Council [2024] NSWLEC 24

Category: Procedural rulings

Parties: Tamworth Regional Council (Applicant) (Second Respondent on the Notices of Motion)
Independent Planning Commission (First Respondent) (First Respondent on the Notices of Motion)
Hills of Gold Wind Farm Pty Limited (Second Respondent) (Applicant on the Notices of Motion)

Representation: Counsel:
R White (Applicant) (Second Respondent on the Notices of Motion)
T To (First Respondent) (First Respondent on the Notices of Motion)
A Shearer SC and K Pham (Second Respondent) (Applicant on the Notices of Motion)
Solicitors:
Maddocks Lawyers (Applicant) (Second Respondent on the Notices of Motion)
Department of Planning, Housing and Infrastructure (First Respondent) (First Respondent on the Notices of Motion)
Herbert Smith Freehills Kramer (Second Respondent) (Applicant on the Notices of Motion)

File Number(s): 2024/00364766

Publication restriction: Nil

JUDGMENT

Nature of proceedings

1. The substantive proceedings are a Class 1 appeal commenced by an objector to a State Significant Development application.

2. In these proceedings Hills of Gold Wind Farm Pty Limited (Second Respondent) has filed two Notices of Motion seeking orders that the proceedings be dismissed and a review of a decision of a Registrar of this Court.

Facts

3. On 9 September 2024, the Independent Planning Commission (First Respondent) approved the Second Respondent’s State Significant Development Application SSD-9679 for the Hills of Gold Wind Farm (Determination). The Determination approved the construction of 62 wind turbines, transmission infrastructure, a battery storage system, roadworks and associated ancillary infrastructure on a site approximately 60 kilometres southeast of Tamworth.

4. On 2 October 2024, Hills of Gold Preservation Incorporated (HOGPI) appealed the Determination under s 8.8 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

5. On 31 March 2025, Senior Deputy Registrar Holm ordered that Tamworth Regional Council (Council) be joined as the Second Applicant under s 8.15(2) of the EP&A Act to the proceedings, with her reasons published in Hills of Gold Preservation Incorporated v Independent Planning Commission & Anor [2025] NSWLEC 1194 (Hills of Gold Preservation).

6. On 17 April 2025, the Second Respondent filed a Notice of Motion (the Competency Motion) seeking the following orders:

1 Time for service of this notice of motion be abridged to 17 April 2025.

2 The First Applicant [HOGPI] be removed as a party to the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

3 The First Applicant’s [HOGPI] statement of facts and contentions, filed on 15 November 2024, be struck out.

4 In the alternative to orders 2 and 3, the proceedings be dismissed pursuant to r 12.7 or 13.4 of the UCPR.

5 The conciliation conference under s 34 of the Land and Environment Court Act 1979 listed on 24 April 2025 be vacated.

6 The Second Applicant [Council] is to file and serve a notice of motion seeking leave to amend its statement of facts and contentions by 24 April 2025.

7 Such further orders as the Court sees fit.

7. Also on the same day, the Council filed a Notice of Motion which was subsequently amended on 28 May 2025 (the ASOFAC Motion). The orders sought in the ASOFAC Motion were as follows:

1 Leave is granted to the Second Applicant [Council] to amend its Statement of Facts and Contentions in accordance with the draft Amended Statement of Facts and Contentions attached hereto as Annexure A.

2 The Amended Statement of Facts and Contentions is to be filed by the Second Applicant within 1 business day of the date of the grant of leave.

3 Such further or other orders as the Court thinks fit.

8. On 23 April 2025, Pritchard J dealt with the balance of the Competency Motion. Prayer 4 of the Competency Motion and the ASOFAC Motion was adjourned to a later date.

9. As a consequence of her Honour’s orders HOGPI was removed as a party to the proceedings. Subsequently, the only remaining applicant was the Council.

10. On 28 April 2025, the Second Respondent filed a Notice of Motion (the Registrar Review Motion) seeking the orders below:

1 The Second Respondent’s application to review the Senior Deputy Registrar’s decision on 31 March 2025 is allowed.

2 The decision and orders of the Senior Deputy Registrar made on 31 March 2025 are set aside.

3 In the alternative, the decision and orders of the Senior Deputy Registrar made on 31 March 2025 be varied such that:

a. in lieu of order (2), Tamworth Regional Council be joined as the Third Respondent to the proceedings.

b. references in those orders to the “Second Applicant” be substituted for the “Third Respondent”.

4 Such further orders as the Court sees fit.

11. On 23 May 2025, Beasley J ordered that prayer 4 of the Competency Motion, the ASOFAC Motion and the Registrar Review Motion be listed for hearing.

12. On 19 June 2025, at the hearing of the Notices of Motion the Council withdrew the ASOFAC Motion.

13. The Second Respondent conceded that the Registrar Review Motion would primarily be resolved by the resolution of the Competency Motion and that this would not require a separate determination.

14. The First Respondent neither consented nor opposed to the making of the orders sought in the Notices of Motion.

Evidence

15. At the hearing the Council read the affidavits of Josie Walker affirmed on 17 April, 27 May and 5 June 2025 and the affidavit of Teagan Isabella Wood affirmed on 31 January 2025.

16. The Second Respondent read three affidavits of Rainer Wolffe Stapp Gaunt sworn on 17, 28 April and 5 June 2025.

17. The Second Respondent also tendered RWSG-1 exhibited to the affidavit of Rainer Wolffe Stapp Gaunt sworn on 28 April 2025 and RWSG-1 exhibited to the affidavit of Rainer Wolffe Stapp Gaunt sworn on 5 June 2025.

Second Respondent’s Submissions

18. Whilst prayer 4 of the Competency Motion sought dismissal in reliance upon rr 12.7 or 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the application was based upon the exercise of the Court’s inherent power to control its own processes: Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223; (2010) 177 LGERA 312 (Betohuwisa) at [69].

19. It was accepted that the appeal, as commenced by HOGPI, was competent. The Second Respondent’s argument was that in circumstances where the applicant who commenced the appeal was no longer a party to the proceedings, the appeal was no longer competent and the proceedings should be dismissed.

20. The Second Respondent accepted that there was no express statutory provision that had the effect of rendering the proceedings incompetent in the manner contended, it submitted that upon a proper construction of the relevant statutory provisions it would be accepted that such was the consequence of the statutory regime.

21. The starting point for consideration was that an appeal was a creature of the statute. The EP&A Act made detailed and prescriptive provisions for an appeal. In this case, the relevant statutory considerations were:

22. Section 8.8 of the EP&A Act which created the right for an objector to appeal against the determination of a designated development consent. Such an appeal was limited to the class of persons defined as an “objector” and limited in time, which appeal period could not be extended;

23. Section 17(d) of the Land and Environment Court Act 1979 (NSW) confers jurisdiction on the Court within Class 1 in respect of an appeal commenced under s 8.8 of the EP&A Act. Rule 3.2 of the Land and Environment Court Rules 2007 (NSW) then prescribes how such an appeal is to be commenced, namely by originating process in the form of an application in accordance with the approved form and containing various details of the “applicant”;

24. Section 8.12(3) of the EP&A Act also confers a right for certain parties to be heard on an appeal in certain circumstances. Pursuant to s 8.12, in the case of an appeal by an applicant concerning an application for development consent, an objector who has a right of appeal is entitled to be given notice of an appeal (s 8.12(1)(a)). Anyone who is given any such notice of appeal is, on application to the Court within 28 days after the notice is given, entitled to be heard at the hearing of the appeal if not already a party to the proceedings (s 8.12(3)); and

25. In addition, s 8.15 of the EP&A Act also provides for joinder in certain circumstances.

26. It was contended by the Second Respondent that what was to be understood from the statutory regime when the above provisions were taken together was that these avenues provided exhaustively for the manner in which an objector may participate in an appeal.

27. In this case, an appeal was commenced by a qualified person within the specified time. The applicant in that appeal, HOGPI, is no longer a party to the appeal. That is the only right of appeal that has been exercised under the statutory scheme. As HOGPI is no longer a party, it follows that its appeal must be dismissed. Joinder of the Council pursuant to the application under s 8.15(2) of the EP&A Act does not alter the consequence. Section 8.15(2) joins a party to an existing competent appeal, once the application, upon which the determination of competency relies, is removed, there is no longer a valid appeal to which the Council as a joined party can participate.

28. The joinder of the Council as a “second applicant” did not (and could not) confer a right of appeal on the Council or create an “appeal” brought by the Council where there was no such right under the statutory scheme.

29. By analogy, the Second Respondent’s position was consistent with the decision in Winten (No 21) Pty Ltd v Lake Macquarie City Council [2024] NSWLEC 24 (Winten) at [50]. Whilst Winten was considering a different legislative and factual situation it supported the submission that joinder was not of itself sufficient to overcome the statutory requirements to have, at the foundation, a competent appeal.

Council’s Submissions

26. The Council’s primary submission was that once the Council was joined as a party to an otherwise competent appeal at the time of the joinder the removal of HOGPI as a party did not alter the Council’s position as a party to the appeal and as such it had the right to continue to prosecute the appeal as a party.

27. The statutory conditions that related to the competency of the appeal were provided for in ss 8.8(2) and 8.10(2) of the EP&A Act. There was no question that the appeal proceedings, originally commenced by HOGPI, were validly commenced. The effect of this was that a valid appeal pursuant to s 8.8 of the EP&A Act was commenced in accordance with the EP&A Act and is currently before the Court.

28. On 31 March 2025, Council was joined to the proceedings as a party pursuant to s 8.15(2) of the EP&A Act.

29. The effect of the joinder permits Council to continue the proceedings notwithstanding that the HOGPI (being the original applicant) has been removed as a party to the proceedings. In Betohuwisa Craig J at [65] stated:

65 Secondly, a distinction needs to be drawn between the entitlement to institute an appeal pursuant to s 97 and the entitlement in legal proceedings, once commenced, to seek the addition or substitution of parties. Clearly enough, once proceedings have been instituted then, on proper cause being shown, a successor in title, for example, may well have a proper basis upon which to apply for joinder in the proceedings and, in effect, to take over the conduct of those proceedings. However, the capacity of the Court to adjust its processes in accordance with rules pertaining to the conduct of litigation cannot be used to inform the proper interpretation of a statutory provision identifying the person entitled to institute proceedings for administrative merit review.

30. The Council’s continued prosecution of the appeal is consistent with the statutory scheme in Div 8.3 of the EP&A Act. Under s 8.8 of the EP&A Act, an appeal can only be made by a person who has made a submission by way of an objection. Provided that the appeal is made within the relevant time period (28 days) then there is a valid appeal on foot. Section 8.15(2) (also found within Div 8.3) provides for the subsequent joinder of a person as a party to the appeal. That may be for the purposes of addition or substitution of a party which can then take over the conduct of the appeal. There is no requirement in Div 8.3 for the subsequent joinder of another party to take place within the statutory limitation period for the commencement of an appeal as s 8.15(2)(a) makes it plain that the Court may “at any time” order joinder of a party to the appeal.

31. Consequently, the Competency Motion and the Registrar Review Motion should be dismissed.

Findings

32. There is no dispute that the commencement of the present appeal was competent. The applicant that commenced the appeal, HOGPI, was a relevant objector to the State Significant Development application and the appeal was commenced within the statutory time period.

33. HOGPI continued to prosecute the appeal. During that time the Council was joined as a party to the HOGPI appeal. After the Council was joined, HOGPI determined that it no longer wished to participate in the appeal and sought leave to be removed as an applicant and such leave was granted.

34. The question that arises for determination is whether the Council can continue to prosecute the appeal in circumstances where the originating party that commenced the appeal is no longer a party to the proceedings.

35. The answer to this question is not expressly stated in the EP&A Act. As a consequence, the statutory provisions must be considered to determine whether the consequence of HOGPI being removed as an applicant has a consequence on the competency of the appeal.

36. In considering the statutory provision little, if any, assistance can be derived from the decisions of Winten and Betohuwisa. Each of those decisions related to different statutory provisions, the findings on which are not capable of informing the task of construction posed by these Motions.

37. It is apparent from the statutory provisions relating to designated development appeals that an appeal by an objector may be made. This is a type of participation in an appeal that is limited only to designated development. In the circumstances of a non-designated development appeal there is no statutory right for a third party to appeal from such a determination. The right of appeal conferred on an objector is limited to a class of persons and in time. Further provision is made to permit participation in an existing appeal by objectors by operation of s 8.8(2) of the EP&A Act.

38. Taken alone, the statutory provisions that relate to designated development appeals would indicate a statutory intention to limit objector appeals and participation in designated development appeals to those that strictly comply with the provisions contained in ss 8.8 and 8.12 of the EP&A Act.

39. However, s 8.15 of the EP&A Act also applies to designated development appeals. Section 8.15(2) provides:

8.15 Miscellaneous provisions relating to appeals under this Division

…

(2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion—

(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b) that—

(i) it is in the interests of justice, or

(ii) it is in the public interest,

that the person be joined as a party to the appeal.

40. The application of this section to designated development appeals indicates a statutory intention that the right to participate in a designated development appeal is extended beyond the limitations of ss 8.8 and 8.12 of the EP&A Act, provided that the persons has met the requirements of s 8.15 and is joined by order made pursuant to that provision. The question that arises is whether that joinder is limited only to the circumstances in which the original applicant continued to participate in the appeal to which the person has been joined.

41. The text of s 8.15(2) of the EP&A Act refers to the joinder to an appeal, indicating that there is an existing appeal on foot to which the person is joined. That language is unexceptional in the context of the subject matter of the legislative provision which is to “join” a party. The text does not make it apparent as to what occurs if the person that commenced the appeal ceases to be a party.

42. There being no express provision that renders an appeal at an end when the commencing party ceases to be a party there would need to be some statutory intent derived from the EP&A Act for the Second Respondent’s claim that the appeal is incompetent to succeed. I am unable to identify such an intent.

43. An order for joinder pursuant to s 8.15(2) of the EP&A Act has the consequence that the joined person becomes a party to the extant appeal. If the original applicant ceases to be a party the joined party remains. The appeal is still on foot if the original applicant is merely removed and no discontinuance or other action effecting the cessation of the appeal is undertaken. In the circumstances of the application of s 8.15 and the circumstances of this case, the consequence of the removal of HOGPI did not bring the appeal to an end, the Council remains a party to the extant appeal.

44. In deriving the statutory intent from the statutory language contained in Div 8.3 of the EP&A Act it is also necessary to consider the objectives of the Act as a whole. The statutory history and context relating to objector appeals was analysed by Preston CJ of LEC in Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66; (2021) 250 LGERA 318. As was observed by his Honour, one of the objectives of the creation of the right of appeal for an objector was, in part, to facilitate the objects of the EP&A Act in s 1.3 which included the object of providing increased opportunity for community participation in environmental planning and assessment.

45. Having regard to the operation of the relevant statutory provisions, in particular the text of s 8.15(2) of the EP&A Act, a construction of that provision that permits the continuation of an otherwise competent appeal where the original applicant has ceased to be a party is a construction more consistent with the overarching objective of the EP&A Act to facilitate community participation.

46. On balance, and having regard to the text, context and statutory intent of the relevant statutory appeal process as provided in the EP&A Act, I find that the appeal was not rendered incompetent by the removal of HOGPI as an applicant. As a party joined to the competent appeal prior to the removal of HOGPI, the Council is able to continue to prosecute the appeal in the absence of HOGPI as a party. Therefore, the Second Respondent’s claim of incompetence should be dismissed.

47. The Second Respondent accepted that the Notice of Motion to review the decision of the Senior Deputy Registrar was not an appeal against the joinder of the Council, but rather to “regularise” the classification of the Council as an “applicant” in the event that the appeal was incompetent. In light of my findings in the Competency Motion there is no necessity to determine the Registrar Review Motion and it too shall be dismissed.

Costs

48. The parties requested that the costs of the Notices of Motion be reserved to enable a consideration of the reasons for the decision. I will reserve the question of costs of the Notices of Motion.

Conclusion and orders

49. For the foregoing reasons, both the Competency Motion and the Registrar Review Motion are dismissed.

50. The Court orders:

51. Prayer 4 of the Second Respondent’s Notice of Motion filed on 17 April 2025 is dismissed.

52. The Second Respondent’s Notice of Motion filed on 28 April 2025 is dismissed.

53. Costs of each Notice of Motion referred to in orders (1) and (2) are reserved.

54. The proceedings are listed before Duggan J for mention on the question of costs at 9.30am on 8 August 2025.

55. The proceedings are listed for directions before the Registrar on 11 July 2025.

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