Terrace Tower Holdings Pty Limited v Sutherland Shire Council

Land and Environment Court (NSW)|1998-11-13|Before: McEwen AJ, Cowdroy AJ

These proceedings are before the Court pursuant to a notice of motion filed by Commonwealth Property Limited ("CPL") on 20 June 2001. The proceedings are listed for hearing for a week commencing on 17 September 2001. The motion by CPL seeks either to be joined as a party to these proceedings or, alternatively to being joined, that CPL be authorised as if it were a party to these proceedings to, firstly, be independently represented at the proceedings and, secondly, to file and serve statements of evidence, call witnesses, cross-examine witnesses for the respondent and make submissions in respect of issues relevant to CPL.

That motion was supported by an affidavit sworn by Jayne Margaret Jagot on 20 June 2001. The affidavit indicates a number of matters relevant to the application. Firstly, it identifies the location of the proposed bulky goods centre, the subject of the proceedings, at Taren Point. It attaches a copy of the Statement of Issues as filed in these proceedings by the Council and attaches a further statement of issues prepared on behalf of CPL.

The Council's Statement of Issues numbered 16; the question of economic impact is addressed in issues 6 and 7 viz:-

(6) Whether sufficient information has been submitted with the development application to make a proper assessment of the economic impacts in regard to: (a) the existing business centres in the Shire; (b) the availability of land available for traditional industrial development; (7) Whether in the circumstances the economic impact is appropriate.

As to the statement of issues propounded on behalf of CPL, I will not reproduce the whole of the six issues identified. Suffice it to say issues 1, 2 and 3 were said to be relevant to economic impact and issues 4, 5 and 6 went to firstly the construction of aspects of the Sutherland LEP 2000 and LEP 1993; and finally a question of the use of a right of way in relation to ingress and egress to the subject property.

The power to either join or hear parties emanates from, firstly, s 38 of the Land and Environment Court Act 1979, which provides that this Court is not bound by rules of evidence in class 1 proceedings, but gives it the opportunity of being able to inform itself of matters and evidence relevant to the issues before it. The Rules of the Court in pt 6 r 1 pick up the Rules of the Supreme Court, relevantly pt 8 r 8 of the Supreme Court Rules. Pt 8 r 8 of the Supreme Court Rules provides that where a person who is not a party ought to have been joined or is a person whose joinder as a party is necessary to ensure "that all matters in dispute in the proceedings may be effectually completely determined and adjudicated upon then the Court may, on application by him or any party of its own motion, order that he be added as a party and make orders for the further conduct of the proceedings".

It is pursuant to that power that CPL invites the Court either to join it as a party or to give it liberty to be heard in the manner in which I have described.

Before the matter proceeded in argument, I invited Ms Doheny for the Council to indicate the Council's attitude to the application. She said that the Council was opposed to CPL being joined as a party, but did not oppose CPL being heard in the manner I have otherwise described as being represented by counsel, filing and serving evidence and having an opportunity to cross-examine et cetera. She said that that lack of opposition, however, was limited to issues 1, 2 and 3 in CPL's statement of issues and not to the other issues numbered 4, 5 and 6.

The affidavit of Ms Jagot did not advert to any of the usual grounds one is familiar with in applications of this nature. I have identified the matters she did advert to, namely the Cartier Holdings construction argument and the additional issues.

I should briefly describe what the case is about. There is a large block of land at Taren Point on the water, some 48,630 square metres, which is proposed to be used for a bulky goods centre. If constructed, it will have a retail floor area of some 34,435 square metres. It will cost some $25 million to construct and I am told it will be one of the largest homeware sites in Australia. CPL, by contrast, is the proprietor of the Caringbah Supa Centa located approximately a kilometre away to the south. There is also the Miranda Shopping Centre which is maybe three kilometres, in a south-westerly direction, and I am told that somewhere in the vicinity is a Harvey Norman Centre. CPL in its issues seek to raise three main areas of contention: economic impact, traffic, and the construction of the operation of s 79C.

Mr Craig QC, appearing for CPL, submitted that it was necessary for CPL either to be joined or to be heard to ensure that, in the words of pt 8 r 8, all matters in dispute be effectually completely determined or adjudicated upon in these proceedings. He submitted that there was no commonality or overlapping of the issues. He said that Council's issues did not pick up CPL's issues and that CPL's issues were different. He emphasised the contrast between the brevity of the Council's issues and the matters which CPL wish to agitate - being wider, more detailed and precise in CPL's draft. He said that the test was whether there are issues which CPL identifies which the Council has indicated it will not run.

I agree that that is one of the tests. I accept that CPL has a bona fide proper commercial interest in the subject matter of the proceedings, however the question is whether the interests of justice require, or presently require, that CPL either be joined or heard to ensure that matters relevant to the determination of this matter are all before the Court. Paraphrasing that approach, the question is whether the ventilation of matters in dispute as identified by the Council will either be hampered or circumscribed in a way detrimental to CPL's interests if CPL is not joined or heard from.

Mr Tobias QC, appearing for the applicant, Terrace Tower Holdings, in the proceedings, says they will not. He submits that CPL has not put forward material that suggests that the very issues CPL would want to ventilate will not be adequately and properly addressed by the Council in its case and, further, that the Council's Statement of Issues, although not co-terminus with those of CPL, identify in a broad, general and umbrella fashion or manner those issues and matters CPL says it wants to be heard upon. Mr Tobias submitted that CPL's application was premature. He said it had not been shown that the Council would not adopt and prosecute issues put in the way CPL would seek to do. Nor, he submitted, was it demonstrated that Council would refuse to either incorporate or use CPL's issues or evidence which CPL may otherwise make available to the Council. CPL's statement of issues, he submitted, were in any event covered by those identified in the Council's issues.

Mr Tobias posed the question being whether there was a risk that the Council would not prosecute the issues as identified by CPL such as to leave open the argument or complaint that all matters relevant to the determination of the matter were not before the Court. He pointed to Council's obligation and public duty to ensure that all relevant matters were before the Court and that it would only be when the Council indicated it would not do that, that is prosecute all matters relevant to the determination of the proceedings or not adduce adequate and proper evidence, that CPL would then have a basis to be joined or heard. Mr Tobias emphasises that the Council was neither passive nor inactive in its pursuit of the issues and that there was no evidence before this Court that the Council would not present a case on economic impact sufficient to ensure that all matters which CPL wished to ventilate were or was before the Court and argued adequately. For all these reasons Mr Tobias submitted that the present application was premature.

He then dealt with some previous examples before this Court where the question of joinder had been addressed. He touched upon the familiar case of Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313; there objectors were not joined but allowed to be heard in the proceedings because they had views and arguments which were in conflict with the submissions which were put by the Council. That is not the case here.

I was then referred to the decision by Cowdroy J in Humphrey and Edwards Pty Limited v Woollahra Municipal Council (Cowdroy AJ, NSWLEC, 13 November 1998, unreported) where there was an application by an adjoining landowner who complained that there had been no opportunity, or proper opportunity, to be heard in relation to the objection which that adjoining neighbour wished to ventilate. The Council had agreed on a compromise with the applicant developer. To ensure that the adjoining neighbour applicant for joinder was heard, leave was granted. His Honour found that the basis upon which joinder would be permitted was that here was a real risk that the Council would not advance the submissions which the adjoining neighbour applicant for joinder wanted to put. His Honour said there was a risk that the submissions by the adjoining owner would not be put as forcefully as they might have been put by the applicant for joinder. As to the agreement between the applicant for development and the Council his Honour said-: …there is obviously a degree of consensus which may not necessarily be in the interests of Mr and Mrs Caridad (the applicants for joinder). This reason of itself justifies independent representation in order to eliminate any apprehension or suspicion that an objective member of the public may reasonably entertain akin to the principles enunciated in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264; and Livesey v NSW Bar Association (1983) 151CLR 288 at 299. (par 9)

That of course is not the case here. There is no compromise of a type similar to that which occurred in the Humphrey and Edwards decision, nor do I see any basis to have an apprehension that the Council here, because of some attitude towards the applicant for development, would not adequately and properly put the concerns of CPL.

Reference was also made to his Honour's decision in Naylor Shaw and Associates Pty Limited v Sutherland Shire Council [1999] NSWLEC 11, unreported. That case can be distinguished by the fact that the application to adduce lay evidence by an objector was not opposed, the lay objector being the adjoining owner of the applicant for development. However the application encompassed also an application to adduce expert evidence and that was refused. His Honour identified the ground of refusal in part as being the fact that there had been extensive correspondence between the applicant for joinder and the Council where the applicant for joinder had put before the Council all matters of an expert nature which the applicant for joinder would otherwise want to ventilate before the Court. That material, having gone to the Council, plainly was available to the Council in the conduct of the proceedings and for that reason his Honour declined to grant leave for expert evidence to be adduced by that applicant. His Honour also observed that the objective of s 38 of the Court Act would be contravened in the event that leave was granted because in his Honour's view leave ought be limited to the adducing of expert evidence to matters which were designated development, and not otherwise. It seems to me this puts an unnecessary constraint on s 38.

Finally I was referred to the decision again by Cowdroy J in Weston Aluminium Pty Limited v The Minister Administering the Environmental Planning and Assessment Act and Anor [2000] NSWLEC 265. Joinder was sought there by a third party on the basis that the applicant for joinder was a person who may be liable to satisfy a judgment of the Court. This was for the reason that the Minister, who was the respondent to the application in the proceedings, had indicated to the Court that he would not be supporting or opposing the application and, relevantly, not calling any expert evidence or testing any expert evidence. Hence there was a risk that issues relevant to the position of the applicant would not be adequately ventilated before the Court. Again it appears to me that is not the present case.

Mr Tobias submitted that it was still open to CPL to do two things, bearing in mind the hearing date being 17 September 2001. Firstly, it is open to CPL to ask the Council to amplify its issues to include any further issues CPL says ought be argued. It would only be in circumstances where such issues were shown to be relevant to the determination of the application proper and the Council refusing to adopt those further issues that there may be an argument for complaint and there may be a basis for a further application of the present type to be made. Secondly, Mr Tobias identified the opportunity that CPL presently has to, at its own expense, make available to the Council expert evidence and material which it, CPL, would otherwise want to put before the Court. He also said there was an opportunity CPL had, if it had no faith in the representation which the Council had selected for the purpose of arguing the case at hearing, to make available legal representation at CPL's expense.

In support of this approach Mr Tobias tendered a number of items of correspondence which emanated from the consultants to CPL, BBC Consulting Planners. That correspondence indicated that the planners on behalf of CPL had raised matters relevant to the issues which CPL says it now wishes to raise and also identifies areas of inquiry as to expert evidence which would be relevant to those issues. It seems that the opportunity to put expert evidence before the Council, and for the Council to avail itself of that material, is still open, It would not be until the point was reached, such that the Court was satisfied that matters in dispute in the proceedings relevant to CPL would not be effectually and completely determined and adjudicated upon, that an opportunity would arise for CPL to ground a complaint that it ought either be joined or be heard separately in the proceedings.

Mr Tobias also suggested that to allow CPL to be either joined or heard could "open the floodgates". He referred to the fact that Harvey Norman has a shopping centre nearby and that proximate to the proposed development is the Miranda Shopping Centre. He submitted that it would be intolerable for his client to have to confront a multiplicity of parties who may have bona fide legitimate interests in the issues in these proceedings to be heard separately. So much is plain.

Mr Craig submitted this was not a "floodgate", but that each application had to be dealt with on its merits. This I accept. Mr Craig, however, emphasised the question before the Court was what did the interests of justice require in the instant circumstances. In the facts of this matter the question is whether or not there is a legitimate complaint by CPL that issues and evidence which it would otherwise want to have ventilated and put before the Court, will not be put or led by the Council.

In my view this is not the case. The evidence here does not disclose any attitude by the Council that it would reject arguing issues which CPL otherwise wishes to ventilate, nor does the evidence disclose an attitude by the Council that it would not adopt and prosecute either the evidence which CPL would want to put before the Court or cross-examine or attack evidence which otherwise can be anticipated will be adduced by Mr Tobias's client. Until that point is reached, in my view the present application ought not be acceded to and should be refused.

I am concerned that this matter is fixed for hearing for a week commencing 17 September 2001 and is a matter of some complexity. There is adequate time between now and the commencement of the hearing for a review of the situation which has been ventilated in this present motion before the Court. It is important that if any further application it to be brought, it be brought within sufficient time prior to 17 September 2001 so that the hearing is not interrupted or unnecessarily delayed or protracted due to late application. However that's a matter for the advisers to CPL.

Formally, in relation to the motion filed on 20 June 2001 by CPL, I dismiss the motion. COUNSEL ADDRESSED ON COSTS I direct any submissions from Terrace Tower Holdings or the Council in relation to costs to be with my associate by 5.00 pm next Wednesday, 4 July, and for the applicant, Commonwealth Property Limited, to reply by 6 July with copies in both instances going to the other parties. Mr Farland and Mr Simpson, if you wish to put anything in response, by Tuesday 10 July.

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.

CITATION : Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2001] NSWLEC 154 APPLICANT Terrace Tower Holdings Pty Limited

INTERVENER Commonwealth Property Limited FILE NUMBER(S) : 10248 of 2001 CORAM: McEwen AJ KEY ISSUES: Practice and Procedure :- joinder - intervener Environmental Planning and Assessment Act 1979, s 79C LEGISLATION CITED: Land and Environment Court Act 1979, s38 Land and Environment Court Rules 1996, pt 6 Supreme Court Rules 1970, pt 8 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313; CASES CITED: Humphrey and Edwards Pty Limited v Woollahra Municipal Council (Cowdroy AJ, NSWLEC, 13 November 1998, unreported); Naylor Shaw and Associates Pty Limited v Sutherland Shire Council [1999] NSWLEC 11, unreported; Weston Aluminium Pty Limited v The Minister Administering the Environmental Planning and Assessment Act and Anor [2000] NSWLEC 265 DATES OF HEARING: 28/06/2001 DATE OF JUDGMENT: 06/29/2001

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