HIS HONOUR: In this matter, unusually, the Crown, which otherwise has a right of appearance in any proceedings in which the public interest is potentially engaged, with that right of appearance arising as consequence of s 64(1) of the Land and Environment Court Act 1979 (the Court Act), seeks additionally, by way of Amended Notice of Motion initially heard by me on 12 April 2019, to be joined pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as a party to the proceedings.
When the matter was before me on 12 April 2019, it was drawn to my attention that a Notice of Motion on behalf of the Applicant was set down before the Registrar for determination tomorrow, 17 April 2019, on an application for leave to rely on amended plans.
In order to deal with all of the matters arising out of the departmental application, I had that motion lifted to be dealt with before me this morning with, at the time of dealing with it, the parties to the proceedings being the Applicant and Penrith City Council (the Council). The Council did not object to the leave to rely on amended plans being granted subject to the usual order as to costs wasted by the Council as a consequence of the proposed amendments.
I have therefore, this morning, made orders granting that leave to rely on those amended plans and the costs order consequent on doing that.
It is with respect, now, to those amended plans for which leave has been granted that the Department of Education, as the manifestation of the Crown, now seeks to be joined to the proceedings.
As a consequence of the reasonable anticipation that I would grant that leave to amend, the Council had revised its Statement of Facts and Contentions, a copy of which (in draft) is before me as Exhibit 1 on the motion for joinder. The Amended Statement of Facts and Contentions which Mr Drury, solicitor for the Council, has advised me will be filed in its formal terms later today, makes it clear that, with the exception of two comparatively limited matters, the contentions which had previously been pressed by the Council have been resolved as a result of the amendment to the plans.
The primary matter that remains in contention is the fact that there is no concurrence from the Department of Education with respect to the provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 and the related Child Care Planning Guideline.
It is with respect to the provisions of that guideline that the Department of Education not only seeks to exercise its right of appearance under the Court Act but also to be joined under the EP&A Act. Mr Kondilios, solicitor for the Applicant, resists the application for joinder, whilst Mr Drury indicates that the Council neither supports nor opposes that application.
Mr Kondilios relies on two cases - the first, a decision of Jagot J in Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 and, second, remarks by Lloyd J, in Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63, concerning the undesirability of a multiplicity of parties or evidence to proceedings.
The matters which are proposed to be pressed by the Department of Education, if joined as a party, are set out in summary in a letter (Exhibit A) from Ms Peatman, the Department's solicitor appearing in these proceedings, addressed to Mr Drury and, if not provided in copy to Mr Kondilios, made available to him to read this morning.
The Department has not yet provided a Statement of Contentions upon which it would rely, however Exhibit A does set out what would be inferred to be the sole contention - that is the failure to provide an area of seven square metres per child of unencumbered outdoor space for each of the children permitted to attend the proposed development.
The Council's position is that it is unnecessary to require the full amount of space as satisfaction, at least of the spirit of that which is required by the guideline, is able to be achieved by limiting the number of children permitted to be outdoors at any one time - resulting in the minimum of seven square metres per child on each occasion when children are outside.
The Department wishes to press that the full amount of space should be made available. In Morrison Design v North Sydney Council [2007] NSWLEC 802 (Morrison Design), the Chief Judge dealt with the question of the circumstances under which joinder might be made. They were in the circumstances where the parties seeking joinder were not a manifestation of the Crown as is here the position.
The consequence of s 64(1) of the Court Act giving the Crown the right to appear and be heard means that those matters upon which the Crown would propose to rely will be able to be ventilated in a full sense before the Commissioner to whom the matter has been assigned.
There are, therefore, only two consequences of joinder as opposed to the exercise of the right of appearance. Those two facets are what one would describe as a two-edged sword.
The first is that the Crown, to its benefit, would potentially have the right of appeal if it was a dissatisfied party to the outcome of the proceedings before the Commissioner.
The second, not necessarily of advantage to the Crown, is that the Crown would become exposed to the potentiality of an adverse costs order if it was considered to be fair and reasonable that such an order be made in favour of the Applicant as an outcome of the proceedings.
However, importantly in the context of Morrison Design, the Chief Judge dealt with the necessity for there to be an effective contradictor on the relevant contingent. In Morrison Design, the Chief Judge was satisfied that the Council would be an appropriate contradictor to the extent necessary and that the residents who were objectors had had an adequate opportunity to put their point of view through the prehearing processes which had been undertaken. In these circumstances, I am satisfied that the Crown, having a right of appearance in a case in which the public interest is engaged, must necessarily mean it being accepted and not opposed that the Crown has a right of appearance in these proceedings but that appearance will also be in the public interest.
The engagement of the public interest is one of the three bases upon which an Applicant for joinder can be joined pursuant to s 8.15 of the EP&A Act, that being in s 8.15(2)(b)(ii).
Under the circumstances, where there is a broad public interest policy issue proposed to be addressed by the Department of Education, I am satisfied that it is appropriate to join the Department as a party to the proceedings.
I do that on two bases. The first is that the Department is to file and serve, by the close of business tomorrow afternoon, 17 April 2019, a formal Statement of Facts and Contentions upon which it proposes to rely in the proceedings. Given the contents of Exhibit A on the motion for joinder, that should not be a task of controversy.
However, the second matter is one, given the imminence of the matter being listed for determination by a Commissioner, that being on Thursday 2 May 2019, that I should make an order now (given that there has been no foreshadowing by the Department of any desire to lead expert evidence in the proceedings) that the Department is not to have to leave to rely on expert evidence in the proceedings. To the extent that there is material upon which the Department wishes to rely, it is my expectation that the policy matters to be advanced are those that can arise from the relevant formal departmental policy and other documents.
It seems to me, therefore, that it is appropriate to direct that, to the extent that the Department may wish to rely on any documentation other than the State Environmental Planning Policy or the Child Care Planning Guideline, that matter should be served on the First Respondent and on the Applicant in the proceedings no later than the close of business on Friday 26 April 2019.
I direct that the now Second Respondent file, with my Associate, Short Minutes of Order giving effect to the decision which I have made this morning and I will make those orders in chambers.
[2]
Orders subsequently made
The Court orders that:
1. The Applicant is given leave to rely on amended plans;
2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the First Respondent that have been thrown away as a result of the amendment of the application for development consent; and
3. The Department of Education is joined as the Second Respondent in these proceedings.
[3]
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Decision last updated: 07 May 2019