Tenacity Investments Pty Ltd v Ku-ring-gai Council

KEY ISSUES: PRACTICE AND PROCEDURE :- Application for joinder pursuant to s39A of the Land and Environment Court Act

LEGISLATION CITED: Land and Environment Court Act 1979

Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11 CASES CITED: Tenacity Investments Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 148 Tenacity Investments Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 649 Tenacity Investments Pty Ltd v Ku-ring-gai Council and Peter Dobrijevic [2007] NSWLEC 539

APPLICANT FOR JOINDER Mr Dobrijevic (in person)

APPLICANT LEGAL REPRESENTATIVES: Mr Sattler, Solicitor Sattler & Associates

RESPONDENT Mr Marincowitz, Solicitor Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10/10221 Tenacity Investments Pty Ltd v Ku-ring-gai Council

1 REGISTRAR: In this matter a resident objector, Mr Dobrijevic, has made an application by notice of motion seeking to be joined as a party to the proceedings. The substantive proceedings relate to an appeal against the council's refusal of a modification application for replacement of car park lifts with ramp access, the replacement of a void at the basement with a new unit and other consequential amendments to a development application that was approved by the Court on 2 May 2006 (Tenacity Investments Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 148).

2 By way of background, a s 96 application was made to the Court in those previous proceedings and granted by the Court on 17 October 2006 (Tenacity Investments Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 649). Prior to judgment being given on that s 96 application Mr Dobrijevic was joined as the second respondent to the proceedings. A further s 96 application was made by the applicant and resolved by the court on 13 June 2007 (Tenacity Investments Pty Ltd v Ku-ring-gai Council and Peter Dobrijevic [2007] NSWLEC 539). Again Mr Dobrijevic, having been joined as a party to those proceedings, appeared as the second respondent (as noted in the judgment of 13 June 2007).

3 Tenacity Investments Pty Ltd, the applicant for development consent, opposes the application that is made by Mr Dobrijevic to be joined as a party to the proceedings. The respondent, Ku-ring-gai Council ('the Council'), neither opposes nor consents. The respondent says that it is a matter for the court to determine the application.

4 Section 39A of the Land and Environment Court Act 1979 is the relevant section to which I must have regard in considering whether a joinder should be ordered. That section provides that in relation to proceedings of this nature: "…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."

5 The use of the word "may" in s 39A gives the Court a discretion. Therefore, the Court must be satisfied that the conditions set out in either (a) or (b) are met. If so, then the Court must consider whether it ought to exercise its discretion in the facts and circumstances of the particular application.

6 The applicant for joinder on this application, Mr Dobrijevic, makes a number of submissions regarding whether he should be joined as a party to the proceedings. Mr Dobrijevic says that there are significant differences between his view and the council's view in relation to a number of issues. Mr Dobrijevic points to the fact that an order for joinder has been made in prior proceedings concerning the same parties.

7 Further, Mr Dobrijevic points out that the senior commissioner, in considering his objections to the original development application in a judgment of 2 May 2006, refers to Mr Dobrijevic as being in "the most vulnerable position" in relation to the development application (at [12]). Mr Dobrijevic says that I should have regard to that comment and also to the fact that objections raised by him on prior occasions have been accepted by the Court.

8 Mr Dobrijevic says that this is the third time that this matter has been brought back before the court to, as he says, fix the plans that were the subject of the original development application. Mr Dobrijevic says that he has been able to assist the court to make a more just decision on those prior occasions and that he should be afforded the opportunity to serve the same role in these proceedings.

9 Mr Dobrijevic also submits that there is no additional cost for the parties if he was to be joined as a party to the proceedings, except for the additional expenses that would be incurred by the parties in providing photocopies of the documents to him. Mr Dobrijevic says that, in light of the earlier proceedings, there is authority that he should be joined to the proceedings between these parties and that, therefore, he should be joined in these proceedings. Further, he says that there are a number of issues which the council may not pursue, notwithstanding that they have been raised by the council, and that he is of the view that they should be pursued.

10 In relation to a question asked by myself to Mr Dobrijevic in relation to what issues he intends to raise, Mr Dobrijevic outlined quite a number of issues. Those issues relate to the impact of the modification application on neighbouring properties, the new design of the development proposal, the lack of compliance with deep soil landscaping, the number of storeys of the building and a number of car parking issues. Mr Dobrijevic submits that there would be a better outcome for the Court and the parties if these issues were pursued by him rather than by the Council raising those issues in the proceedings and then later conceding on those points.

11 The applicant on the development application makes a number of submissions in reply. Mr Sattler, who appeared for the applicant today, points out that the building envelope that is the subject of the modification application was approved by the Court by Senior Commissioner Roseth on 2 May 2006. Mr Sattler submits that, having regard to the modification application that is before the court, the change to the development application does not have any personal impact on the applicant for joinder. In particular, he says that the addition of the ramp to the property is on a boundary that is not adjacent to the property owned by the applicant for joinder.

12 The applicant on the development application also submits that the Court will already have regard to Mr Dobrijevic's submissions as a resident objector. Mr Sattler also submits, on behalf of the applicant for the development application, that Mr Dobrijevic has not come forward with anything that could establish the matters that are outlined in s 39A.

13 Further, Mr Sattler has pointed out the comments made by Justice Talbot in his judgment of 13 June 2007 referring to Mr Dobrijevic's intention "that is designed to frustrate the development in its entirety" (at [3]). Mr Sattler says an order for joinder should not be made in circumstances where there is a history of Mr Dobrijevic causing delay and expense in proceedings to which he has been joined.

14 Mr Sattler also submits on behalf of the applicant to the proceedings that the comments by the senior commissioner in the original development application were made in the context of Mr Dobrijevic being an objector and in circumstances where he wasn't a party, yet his views were taken into account by the senior commissioner. Mr Sattler also points out, on behalf of the applicant in the proceedings, that the Council is aware of the concerns raised by Mr Dobrijevic and that those concerns have been adequately outlined in the statement of facts and contentions. Mr Sattler also referred to evidence that the applicant for joinder has an interest in purchasing the property the subject of the development consent, and that there is a pattern of behaviour that suggests that Mr Dobrijevic is trying to frustrate the process of the development.

15 Mr Sattler, on behalf of the applicant in the proceedings, suggested that a more appropriate course would be for a Double Bay Marina order to be made whereby Mr Dobrijevic is given a limited right to appear and make submissions without an order being made for joinder.

16 On this point the applicant for joinder says that the more practical course is that he be joined as a party to the proceedings. However, the applicant for joinder has not provided any evidence in support of his submissions concerning the issues that he intends to raise if he were joined.

17 That the Court was satisfied that circumstances existed that met s 39A on a previous occasion does not bind me concerning this application. I accept that the senior commissioner's comments concerning Mr Dobrijevic's vulnerable position were made firstly in the context of the original development application and, secondly, in the context only where the senior commissioner was comparing him with the other objectors.

18 Further, simply because the applicant for joinder is in a vulnerable position does not mean that he will raise issues that would not be likely to be sufficiently addressed if not joined as a party. Similarly, this vulnerable position, in relation to the original development application, does not necessarily mean that it is in the interests of justice or in the public interest for an order for joinder to be made.

19 The applicant for joinder raised a number of issues that he would seek to pursue if an order for joinder is made. However, each of those issues is raised in the statement of facts and contentions. I accept that those issues, having been raised in the statement of facts and contentions, means that they will be sufficiently addressed by each of the parties to the proceedings. Even if the council is of the view that those issues should not result in a refusal, if the matter goes to a hearing, the ultimate determination of that question rests with the Court and the parties are required to assist the court in that regard.

20 Further, if the matter does proceed to a hearing, the applicant for joinder, Mr Dobrijevic, will have the opportunity to appear and give evidence as a resident objector. As I said earlier, the issues raised by him today, already appear in the statement of facts and contentions as currently filed and will have to be dealt with by the parties and by the Court. Further, if the matter proceeds to a s 34 conciliation conference, the issues are clearly articulated in a statement of facts and contentions for the parties to discuss and negotiate.

21 Therefore, I am not satisfied that Mr Dobrijevic is able to raise an issue that should be considered that would not be likely to be sufficiently raised if Mr Dobrijevic were not joined as a party in satisfaction of s 39A(a). Similarly, nothing has been put to me and I do not accept that there is anything that shows that it would be in the interests of justice or in the public interest for Mr Dobrijevic to be joined as a party to the appeal. 22 In those circumstances, I cannot make an order and also it is not appropriate for me to make an order where the joining of Mr Dobrijevic would result in an increased delay and cost to the parties where the issues raised by Mr Dobrijevic are simply a duplicate of the issues raised by the council. Therefore, the comments made by Justice Pepper in Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11 are apposite, that is in paragraph (29): "In addition to the reasons already expressed, the joinder would cause the proceedings to have a multiplicity of parties which will of itself necessarily lengthen the hearing and elevate costs thereby undermining "the overall objective of achieving the quick, just and cheap resolution of proceedings as described in the Civil Procedure Act 2005 "."

23 The applicant to the proceedings proposed an alternative course, and that is, that I make an order that Mr Dobrijevic participate in an alternate way often described as a Double Bay Marina order (from Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313). However, there has been nothing put to me in relation to what role Mr Dobrijevic seeks to play in the proceedings nor what evidence he intends to tender. Therefore it is not appropriate that I make such an order. I therefore decline to make the order that is proposed in the notice of motion filed by Mr Dobrijevic, and I dismiss the notice of motion. I note, however, that if there is additional evidence that arises, the applicant on the notice of motion is not precluded from filing a further notice of motion if circumstances change and new issues arise that can satisfy the court that those issues would not be adequately dealt with if he were not joined as a party to the proceedings. 24 I therefore make an order dismissing the notice of motion.

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