The Sabian Mandaean Association in Australia Ltd v Wollondilly Shire Council

Bongiorno Hawkins Frasetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 CASES CITED: Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293 Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361

APPLICANT: A P Gough (Solicitor) SOLICITORS: Storey & Gough

LEGAL REPRESENTATIVES: RESPONDENT: J A McCullan (Solicitor) SOLICITORS: Marsdens Law Group

APPLICANT FOR JOINDER: C Butler (Litigant in Person)

JUDGMENT:

• 6 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

THE SABIAN MANDAEAN ASSOCIATION IN AUSTRALIA LTD v WOLLONDILLY SHIRE COUNCIL [2009] NSWLEC 94

1 HIS HONOUR: On 19 December 2007, the applicant, the Sabian Mandaean Association in Australia Ltd, made a development application for a place of public worship comprising the construction of a baptismal pond with terrace seating for 300 people covered with shade cloth, car parking for seventy cars and a toilet, shower and change room block. The site of the proposed development is to the east of Bents Basin Road at Wallacia and adjacent to the Nepean River. 2 According to the development application, the applicant is a religious group who follow John the Baptist. The nature of the ceremonies require the use of running water for both baptism and marriages, and the baptismal pond will be supplied with water pumped from the river and then returned to the river. The site is remote from reticulated town water supply and a local sewage disposal system. 3 The development application was refused by the Council almost 12 months later on 18 December 2008 on numerous grounds. The Mandaeans have now appealed to the Court. There is now a notice of motion before the Court filed by an adjoining landowner, Ms Cheryl Butler, seeking an order that she be joined as a party in the appeal. She claims, in effect, a declaration that the proposed development is designated development which would give her an entitlement to be joined. Alternatively, she seeks joinder under s 39A of the Land and Environment Court Act 1979. 4 The first question, therefore, is whether the development is designated development. Section 77A of the Environmental Planning and Assessment Act 1979 provides that designated development is development that is declared to be designated by an environmental planning instrument or by the regulations. 5 The proposed development has not been declared in an environmental planning instrument as designated development. The Environmental Planning and Assessment Regulation 2000 provides in cl 4(1) that development described in Pt 1 of Sch 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Pt 2 or Pt 3 of that Schedule. Part 1 of Sch 3 relevantly states in cl 29:

" 29 Sewerage systems and sewer mining systems (1) Sewerage systems or works (not being development for the purpose of sewer mining systems or works): (a) that have an intended processing capacity of more than 2,500 persons equivalent capacity or 750 kilolitres per day, or (b) that have an intended processing capacity of more than 20 persons equivalent capacity or 6 kilolitres per day and are located: (i) on a flood plain, or (ii) within a coastal dune field, or (iii) within a drinking water catchment, or (iv) within 100 metres of a natural waterbody or wetland, or (v) within 250 metres of a dwelling not associated with the development. (2) Sewerage systems or works that incinerate sewage or sewage products. (3) Sewer mining systems or works that extract and treat more than 1,500 kilolitres of sewage per day. (4) This clause does not apply to: (a) the pumping out of sewage from recreational vessels, or (b) sewer mining systems or works that distribute treated water that is intended to be used solely for industrial purposes." 6 The proposed development would, as I have noted, cater for up to 300 people at any one time and it has a processing capacity of 7,000 litres per day or 7 kilolitres per day. 7 Part 3 of Sch 3 of the Regulation, however, sets out what is excepted from designated development. Clause 37A in Pt 3 of Sch 3 is as follows:

" 37A Ancillary development (1) Development of a kind specified in Part 1 is not designated development if: (a) it is ancillary to other development, and (b) it is not proposed to be carried out independently of that other development.

(2) Subclause (1) does not apply to development of a kind specified in clause 29 (1) (a)." 8 The Mandaeans submit that the sewerage system proposed to be the subject of the development application is to be used in association with and ancillary to the place of public worship and will not be used independently of that use. It is submitted that the development application is, therefore, not designated development according cl 37A in Pt 3 of Sch 3 of the Regulation. 9 Ms Butler, who appears in person, submits that the toilet block is not ancillary to the purpose of the proposed use as a place of public worship, having regard, in particular, to its size and the fact that it is the only building proposed by the development. However, if the development for the baptismal pond and associated seating were not to be provided and used, then the toilet, shower and change room block would not be required. That is, those facilities are clearly ancillary to the principal purpose of the development. It follows that the development is not designated development. 10 I now turn to the second matter raised by Ms Butler - her reliance for joinder upon s 39A of the Land and Environment Court Act 1979. Section 39A of the Court Act is a facultative provision which is in the following terms:

" 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 , 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." 11 The power of the Court under s 39A is discretionary as appears from the use of the word "may" in the section. Ms Butler proposes to raise a number of issues which she says have not been adequately addressed by the Council either in its reasons for refusal or in its notice of contentions. 12 The affidavit in support of the motion for joinder seeks to raise the following contentions, namely, visual impact of the utilities block, soil compaction and run-off from parking, buffer distances to watercourses and drainage depressions, stock movements in Bents Basin Road, flooding, location of the effluent treatment system, impact of climate change, noise from traffic movements and impact of increased traffic. It seems that the principal issues that Mr Butler seeks to raise are also raised by the Council in its notice of contentions. 13 The question of visual amenity and views has been raised in the Council's contentions six and seven. The issue of the impact on water quality and on the river has been raised in contentions three, four and eight. The impact on the river by effluent disposal has been raised in contentions three, four, eight, nine and ten. The impact on Bents Basin Road regarding the increased traffic movements has been raised by contention five. The question of flooding has been raised by contentions two and eight. The location of the sewer management system on the flood prone land has been raised in contention three. The issue of climate change is closely associated with traffic, as raised in contention five and the proposed alleged impact upon the rural character and alleged ability to cause rural land use conflicts are addressed in contentions seven and eight. Acoustical impact upon the surrounding locality has been raised by the Council's statement of contentions in contentions one and eight and, as I have noted, increased traffic generally has been raised in contention five. Each of these issues would thus be sufficiently addressed. The consent authority is, of course, required to consider impacts upon the environment generally under the Act and is also required to consider the principles of ecological sustainable development. All of these matters will, of course, be considered by the commissioner hearing the appeal.

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. 15 The EP&A Act draws a distinction between designated development and other development. The role of s 39A must be seen with that distinction in mind. In this respect, I refer to the judgment of Preston J in Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 at [42] and [43]: "I note at the outset that s 39A is facultative in the sense of enabling the court to join a person to proceedings under the Environmental Planning and Assessment Act of the types listed in s 39A of the Land and Environment Court Act who would not otherwise have a right to be a party to such proceedings. Under the Environmental Planning and Assessment Act persons who object to development proposed in a development application or to a modification of a development consent have no right to be joined as a party to proceedings unless the development is classified as designated development." 16 Objectors to development applications for designated development do have a right of appeal under s 98(1) of the EP&A Act and have a right to be joined to an appeal in respect of such a development brought by the applicant for development consent under s 97(4). This is relevant to note because, as observed by Preston J, the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering the exercise of the power under s 39A of the Court Act. 17 The power under s 39A is not intended to be a plenary power to allow in each and every circumstance objectors to non-designated development to become a party to appeals under s 96, s 96AA, s 96A and s 97 by a dissatisfied applicant for development consent. 18 In Bongiorno Hawkins Frasetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205, Jagot J referred to the undesirability of having a multiplicity of parties to proceedings. A multiplicity of parties would undermine the conduct of litigation and it would undermine the overall objective of achieving the quick, just and cheap resolution of proceedings as described in the Civil Procedure Act 2005. 19 In these circumstances the notice of motion for a declaration that the development is designated development, and/or for joinder under s 39A of the Land and Environment Court Act is refused with costs. I hereby certify that the preceding 19 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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.