292 Rundle Street Pty Ltd v Pelligra Group Pty Ltd - [2024] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
292 RUNDLE STREET PTY LTD v PELLIGRA GROUP PTY LTD & ANOR
[2024] SASC 100
Judgment of the Honourable Justice Hughes
12 August 2024
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - RIGHT OF APPEAL
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - PROCEDURE
This is an appeal of an interlocutory decision by the Environment, Resources and Development Court (ERD Court) not to join the appellant to an appeal against a refusal to grant planning approval to the first respondent.
The first respondent is the landowner of a parcel of land. It has appealed a decision of the State Planning Commission to refuse to grant planning approval to aa proposed development on the land. The appellant owns land adjacent to that of the first respondent and made an interlocutory application to be joined to the appeal. The appellant raised several grounds for joinder. These included the proximity and orientation of the proposed development, the setback from a boundary line, and the impact on the appellant’s ability to develop its own land in the future. These impacts were referred to as “Boundary Interface Issues” by the ERD Court.
The ERD Court determined that the appellant had a special interest in the appeal, but was not satisfied that the joinder application was in the interests of justice. The ERD Court considered that the issues raised were planning issues and that the appellant could not provide any greater insight into the issues than the parties as of right would address in the appeal. The application for joinder was refused.
The appellant alleges three errors on appeal:
1.    That the Boundary Interface Issues would be adequately addressed on the appeal without the appellant’s contribution;
2.    The ERD Court erred by holding that the appellant would not be able to make a contribution to a proper resolution of the Boundary Interface Issues was not an acceptable reason for joinder; and
3. The ERD Court erred in holding that the interests of justice contemplated by s 205(2)(c)(ii) of the Planning, Development and Infrastructure Act 2016 did not require the appellant to be joined.
Held, dismissing the appeal:
1.    A conclusion about the likely course of proceedings reached on an interlocutory application is not usually, and not in this case, to be approached as a factual finding amenable to error.   Permission is refused.
2.    The appellant did not demonstrate error by the ERD Court in its application of the factors set out in Pitt v Environment Resources and Development Court to the circumstances of the present case.
3.    It was open to the ERD Court to make an assessment that the issues and evidence likely to be put by the appellant to the Court on appeal were not required for it to properly dispose of the appeal.
Environment, Resources and Development Court Act 1993 (SA) s 16, s 17; Planning, Development and Infrastructure Act 2016 (SA) s 205, referred to.
Pelligra Group Pty Ltd v State Planning Commission [2016] SAERDC 4; Moloney v 21-25 South Esplanade Pty Ltd & Ors [2024] SASCA 58; Pitt v Environment Resources and Development Court (1995) 66 SASR 274; O'Neill v Kimhi [2008] SASC 109, discussed.
C Projects Pty Ltd v Development Assessment Commission & Anor [2016] SAERDC 4; Commonwealth of Australia v Saadat & Ors [2019] SASCFC 124, considered.

292 RUNDLE STREET PTY LTD v PELLIGRA GROUP PTY LTD & ANOR
[2024] SASC 100
Civil

HUGHES J: The first respondent owns a parcel of land at 292-300 Rundle Street Adelaide (“the Subject Land”). It seeks to develop the Subject Land by way of a multi-storey building. In particular, a “21 storey mixed use building including offices, shops, residential dwellings, carparking, including partial demolition and conservation works to State and Local Heritage places”. The State Planning Commission (“Commission”) refused consent for the proposal. The first respondent appealed to the Environment Resources and Development Court (“ERD Court”). The ERD Court appeal is in its interlocutory stages.
The appellant owns land adjacent to the Subject Land, at 292 Rundle Street (“Adjacent Land”). The Adjacent Land is currently the site of buildings that are commercially leased. On 6 October 2023, the ERD Court, constituted by a Commissioner, dismissed an application by the appellant to be joined as a party to the ERD Court appeal. The appellant has appealed to this Court. This appeal deals only with the issue of whether the Commissioner erred when dismissing the joinder application. However, some context for that decision must be understood for the appeal to be determined.
The appellant’s interest
The appellant’s evidence is that it wants to develop, or at least to preserve the ability to develop, the Adjacent Land in a manner similar to that proposed by the first respondent. It is concerned to be heard in respect of the appellant’s appeal. It is not satisfied that the Commission’s arguments in defence of the planning refusal will coincide with, or address, its position in respect of the first respondent’s proposal. It wishes to advance evidence and submissions as to the restriction or adverse impact that the first respondent’s proposal would have on its use of the Adjacent Land.
The application to join
The appellant applied to join the appeal. The Commission abided the event. The first respondent opposed joinder. The Court declined to grant the application and issued reasons dated 6 October 2023.
The nature of the decision appealed
The appellant’s appeal to this Court is against the ERD Court’s refusal to join it to the ERD Court appeal.
The ERD Court’s decision to refuse to join the appellant to the ERD Court appeal was an exercise of discretion, such that the appellant must establish an error in the nature of that described in House v King:[1]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[2]
[1] (1936) 55 CLR 499.
[2] Ibid, 504-505 (per Dixon, Evatt and McTiernan JJ).
The basis for a decision to join, or refuse to join, a party
Section 205 of the Planning, Development and Infrastructure Act 2016 (“PDI Act”) regulates the powers of the ERD Court in determining any matter that comes before it, and directs the Court as to the manner in which it must exercise those powers. Section 205(2) provides:
(2) The following provisions apply in connection with the exercise of the Court's jurisdiction in any proceedings under this Act:
(a) subject to paragraph (b), the Court should only seek to deal with and resolve those issues in dispute between the parties and should not, unless the Court considers it to be necessary or appropriate to do so, consider any aspect of the decision, assessment, consent, approval, direction, act, order or determination that is not being challenged;
(b)if—
(i)a person who has applied for a development authorisation is appealing against a refusal to grant the authorisation; or
(ii)a third party is appealing against a decision to grant a development authorisation,
the Court may (if the Court thinks fit) proceed to consider the matter de novo (adopting such processes and procedures as it thinks fit and taking into account any material that was before the relevant authority when it refused to grant the authorisation and such other evidence or material as the Court thinks fit);
(c) the Court may, in dealing with an application from a person to be joined as a party to the proceedings (other than the Crown, a relevant authority applying under section 122, or a person who was entitled to be given notice of a decision in prescribed circumstances (if relevant)), determine not to grant the application—
(i)on the ground that the Court is not satisfied that the person has a special interest in the subject‑matter of the application; or
(ii)on the ground that, whatever the interest of the person may be, the Court is not satisfied that the interests of justice require that the person be joined as a party; or
(iii)on any other ground determined to be appropriate by the Court.
The parties agreed that, in accordance with s 205(2)(c), in order to be joined to the Appeal, the appellant must demonstrate a special interest in the subject matter of the development approval proposal, and that it would be in the interests of justice for it to be joined.
The hearing of the appeal in this Court was deferred for a short period for the determination of an unrelated appeal that was likely to bear on the disposition of the appeal. That matter was Moloney v 21-25 South Esplanade Pty Ltd & Ors (‘Moloney’)[3] in which the Court of Appeal was required to consider the interaction of s 205’s predecessor under the Development Act 1993, being s 88, and ss 16 and 17 of the Environment, Resources and Development Court Act 1993 (‘ERD Court Act’).
[3] [2024] SASCA 58 (Livesey P, Bleby and David JJA), (‘Moloney’).
Section 16 of the ERD Court Act makes provision for the parties to a dispute within the Court’s jurisdiction to participate in a conference, and s 17 empowers the Court to make orders regarding joinder, dismissal, summary judgement, costs, and intervention in proceedings.
The circumstances in Moloney were that an appeal had been the subject of a compromise prior to an application by a third party to be joined. The effect of the Court of Appeal’s reasoning was that an application for joinder under the Development Act 1993 was to be determined by reference to the principles set out in the decisions of Pitt v Environment Resources and Development Court (‘Pitt’)[4] and O’Neill v Kimhi (‘O’Neill’).[5]
[4] (1995) 66 SASR 274 (Doyle CJ, Duggan and Nyland JJ). (‘Pitt’).
[5] [2008] SASC 109. (‘O’Neill’).
The parties in the current appeal proceeded on the basis that the approach adopted in Pitt and O’Neill remain applicable to the determination of an application for joinder under s 205 of the PDI Act. Given the very minor differences in wording between the wording in s 205 and its predecessor provisions, that approach is accepted. There is no need, therefore, to canvas further the implications of Moloney on these proceedings. In any event, one of the key factual considerations in that case, being a compromise between the parties as of right prior to the appeal, is not at play in the current proceedings.
Reasons for the decision to refuse to join the appellant
The primary focus of the parties in the argument before the ERD Court on the joinder application was whether the appellant demonstrated a special interest. Of the 45-paragraph decision, 22 paragraphs are devoted to consideration of this issue. The ERD Court determined this issue in the appellant’s favour. The determination is not contested by way of any cross-appeal.
Having concluded that a special interest had been demonstrated, the Court proceeded to determine that the interests of justice did not require the appellant to be joined. The Commissioner said,[6]
Whilst I am satisfied that the applicant for joinder has a special interest in the subject matter of the application, I am not satisfied that the interests of justice require that they be joined as a party to this appeal. The Alleged Encroachment and the Alleged Right of Way infringement concerns have been addressed and can no longer be the subject of objection by 292 Rundle. While I do not doubt that 292 Rundle is genuinely concerned about the potential impacts of the Proposed Development on its land, the Boundary Interface Issues are planning issues which can and will be addressed by the parties that are already before the Court as of right. 292 Rundle cannot provide the Court with any greater insight or assistance, nor can it contribute to the proper resolution of the Boundary Interface Issues, than the existing parties to this appeal. The Transformer Issue and the Sewer Issue which, while a concern to the applicant for joinder, cannot and do not justify the joinder of 292 Rundle as a party to these proceedings for the reasons identified.
[6] Pelligra Group Pty Ltd v State Planning Commission [2023] SAERDC 16, [44].
Of the three issues described in the paragraph set out above, only the Court’s treatment of the “Boundary Interface Issues” was complained about on appeal.
What are the Boundary Interface Issues?
The Commissioner used the term “Boundary Interface Issues” to describe the following group of detrimental impacts that the appellant considered arose from the proposed development by reference to a development of a similar scale and nature that the appellant may proceed with.
They are:
·A lack of setback to the western boundary of the Subject Land (no setback at levels 1-6 and either on the boundary or set back only 1-1.2 m from level 7 upwards);
·A row of four bedroom windows and living areas on each level from level 7 upwards looking directly onto the Adjacent Land; and
·The proximity and orientation of the Proposed Development would result in adverse impacts on the future development of the Adjacent Land, which 292 Rundle alleged were contrary to the Code, in particular:
o   Adverse micro-climatic impacts;
o   Adverse sunlight access;
o   Loss of privacy;
o   Adverse noise and air emissions;
o   Lack of occupant amenity.[7]
[7] Ibid, [13].
The summary of the issues, or the name given to them as a collection of issues, was not the subject of dispute or complaint in the current appeal. The challenge lies to the ERD Court’s conclusion that these issues would be adequately addressed and dealt with in the appeal without the appellant’s contribution.
The ERD Court’s reasons
Notwithstanding that the Commissioner found that the appellant demonstrated a special interest in the subject matter of the application, it is within the consideration of that issue that the Commissioner’s reasons for concluding that the interests of justice did not favour joinder originated.
The ERD Court determined that the fact that the appellant has no planning approval in place for its proposal was of limited significance, even though there had been plenty of time for the appellant to submit such an application.[8] The ERD Court rehearsed the arguments advanced in 2015 when the appellant sought to be joined to an appeal regarding a refusal to grant planning approval to a different developer on the same parcel of land.[9]
[8] Ibid, [28]-[31].
[9] C Projects Pty Ltd v Development Assessment Commission & Anor [2016] SAERDC 4.
The ERD Court proceeded to make the following observation about the Boundary Interface Issues:
Mr Levinson argued that it was not necessary for 292 Rundle to have any consent in place. Further, he said that it is inherent in the planning authority to use its expertise to consider what alternate and likely developments will occur in the locality, in its assessment of the merits of a proposed development. He said that there will not be a debate about what a development on the Adjacent Land could be or might be, but rather the question for the Court will be whether the Proposed Development is properly designed and developed, taking into account the potential development capabilities that may occur in the immediate locality, and in particular on the Adjacent Land. He said that 292 Rundle will represent that interest, if joined as a party to these proceedings.
I do not believe that the lack of a consent to develop the Adjacent Land is necessarily fatal to this application for joinder and I would not place the same weight on this issue as was seemingly placed upon it in 2016. Although the O’Neills had the benefit of a consent to undertake alterations and additions to their dwelling, His Honour considered that the proposed development by the Khimis on their land would not only deny the O’Neills the benefit of those alterations and additions, but it would also overshadow their existing dwelling throughout the year, generally. I understand this to mean that even if the O’Neills did not have the benefit of a consent for alterations and additions to their existing dwelling, there would still be an impact on their existing dwelling, and their special interest would continue to exist. I consider that the same can be said for the interest that 292 Rundle has concerning the potential impact of the Proposed Development on the Adjacent Land, notwithstanding it does not have a specific consent to develop the land at this point in time.
However, when considering the Boundary Interface Issues, they are essentially planning issues that will be considered by the Court in its determination of the appeal, when it will be assisted by the submissions presented by the parties before it together with the relevant expert evidence. Importantly, the Commission indicated that it would call a planning expert to give evidence at the hearing and that such evidence would not be limited to the reasons for refusal identified by the Commission in its decision. That being so, there is no reason to conclude that the Boundary Interface Issues which are presently of concern to 292 Rundle, would not be given due consideration by the relevant planning experts, and ultimately this Court in its assessment of the Proposed Development. True it is that if a consent did exist, one would have the benefit of assessing the Proposed Development in the context of an approved development actually in contemplation or to be undertaken on the Adjacent Land, the experts and indeed this Court would be able to assess the situation more readily. However, it would not be particularly difficult for the planning experts or this Court to consider what may be contemplated by way of future development on the Adjacent Land as envisaged by the Code, and to consider that when assessing the merits of the Proposed Development.[10]
[10] Pelligra Group Pty Ltd v State Planning Commission (n 6), [30] – [32].
When concluding that the appellant has a special interest, the Court said,[11]
The applicant is the owner of the Adjacent Land, which land was purchased for the purpose of redevelopment. It has expressed a number of genuine concerns with respect to the potential impact of the Proposed Development upon the Adjacent Land. Given in particular the scale and proximity of the Proposed Development, particularly with respect to the extent of development contemplated along the common boundary that is shared with the Adjacent Land, the applicant has a special interest which the PDI Act requires in relation to an application such as this.
[11] Ibid, [38].

The ERD Court was satisfied, therefore, that the lack of planning consent for a particular development was not a barrier to joinder, and that the appellant’s concerns were genuine, and that the proposed development on the Subject Land that is contemplated is sufficiently proximate and intense to justify a classification of the appellant’s interest as “special”.
Consideration of the grounds of appeal
Several originally asserted grounds were not pursued. It is convenient to deal with the pressed grounds in sequence.
Ground 3
Ground 3 asserts that the ERD Court erred in a finding of fact or alternatively, of mixed fact and law, that there was no reason to conclude that the Boundary Interface Issues, would not be given due consideration by the relevant planning experts to be called before the ERD Court in the appeal, and ultimately, by the ERD Court itself.[12]
[12] Ibid, [32].
This complained-of approach was also reflected by the ERD Court’s statement that the parties could and would address the issue, and that the appellant could not provide “any greater insight or assistance” than the existing parties.[13]
[13] Ibid, [44].
The relevant words giving rise to the alleged error were:
While I do not doubt that 292 Rundle is genuinely concerned about the potential impacts of the Proposed Development on its land, the Boundary Interface Issues are planning issues which can and will be addressed by the parties that are already before the Court as of right.
As the second component of the statement, being the assistance that could be required, is repeated in Ground 4 and it will be dealt with under that heading.
The appellant argued that permission should be granted in respect of Ground 3 because although it entails disturbing a finding of fact, the Court on appeal is not required to revisit factual finding processes that would occupy substantial time or involve considerations of credit.
The finding of facts challenged are that the Commission would call a planning expert and that the planning expert would address the Boundary Interface Issues. The appellant argued that there was no, or insufficient, evidence before the ERD Court to enable the ERD Court to have been confident that (a) the State Planning Commission would call an expert, or that (b) the Boundary Interface Issues would be properly aired, because there were various scenarios on which the expert may not be called to give evidence, even if retained. Further, there was no basis for finding that the Commission’s expert would address the issues that were of “genuine concern” to the appellant.
The first respondent argued that the appellant had mischaracterised the issue and that a state of satisfaction such as was required by the ERD Court did not require findings of fact but was, rather, an evaluative judgement.
Consideration
It is not desirable to approach the ERD Court’s determination of interlocutory applications entailing evaluative assessments of the likely course of the proceedings as ones that entail factual findings. Strictly speaking, statements about future events are not factual findings, but in any event such statements do not lend themselves to being characterised as matters about which an appeal court can or should make a determination of error. The ERD Court’s statements as to how the proceedings were likely to proceed was necessarily merely a prediction based on the ERD Court’s experience and the submissions that had been made during the hearing. That the ERD Court reasoned on the basis of statements made by counsel from the bar table was an ordinary incident of the case management process that is required of an interlocutory hearing.
The observations of the Court of Appeal (Kourakis CJ, Peek and Nicholson JJ) in Commonwealth of Australia v Saadat & Ors[14] about such decisions is apt. The Court of Appeal said:
The Commonwealth emphasised in its written and oral submissions that evidence is essential to the making of findings and the drawing of inferences. So much can be accepted for the purposes of the determination of substantive disputes. However, interlocutory case‑management decisions do not involvefact findingso much as the balancing of contingencies. It is not possible to make factual findings about how future litigation may or may not unfold if an amendment or adjournment is, or is not, granted. It is not possible to predict with the certainty of a factual finding what prejudice may ensue from a decision to permit an amendment or grant an adjournment. Moreover, in interlocutory case‑management decisions, the Court often relies on, or at least takes into account, statements from the bar table, because hearings within hearings to determine such matters would add unnecessary time and/or complexity to litigation. The exercise of the discretion in interlocutory matters of this kind requires the balancing of the competing interests of the litigants. It is precisely because there are so many variables and contingencies to be taken into account that case‑management decisions are truly discretionary.
[14] [2019] SASCFC 124, [103].
I reject the invitation to assess the ERD Court’s words as entailing findings of fact, and then determining whether they were affected by error. I would not grant leave insofar as the error of fact is asserted. Ground 3 can and should be assessed on the basis of whether the ERD Court’s determination to refuse joinder was vitiated by legal error, which is effectively the appellant’s approach under Ground 4.
Ground 4
The appellant argued by Ground 4 that the ERD Court had erred in law, or alternatively mixed fact and law, by holding that the appellant would not be able to make a contribution to a proper resolution of the Boundary Interface Issues, and that what the appellant wanted to do was “akin to keeping a watching brief on the proposed development”, which was not an acceptable reason for joinder.[15]
[15] Pelligra Group Pty Ltd v State Planning Commission (n 6), [33] and [44].
The appellant argued that it was an error of law to hold that the appellant could not assist the ERD Court in its task where the decision-maker is defending the decision and calling evidence.
The relevant error was contained in the following sentence:[16]
292 Rundle cannot provide the Court with any greater insight or assistance, nor can it contribute to the proper resolution of the Boundary Interface Issues, than the existing parties to this appeal.
[16] Ibid, [44].
The appellant’s position was supported by an affidavit of James D Hinds setting out the appellant’s concerns.[17]
[17] Affidavit of James D Hinds affirmed on 11 August 2023, ERD-23-000056, FDN8.
The appellant contended that if it were joined to the appeal, it would adduce evidence from an architectural expert, a planning expert, and the company. It would establish that the proposal constrains its ability to build on the Adjacent Land in the future, by reference to the current proposal’s set-backs. The appellant contended that it is evident that the Commission was not concerned with those matters, as they were not referred to in its initial decision, and that the ERD Court would be assisted by the appellant’s evidence and submission on the particular planning issues that are generated by its proposal for the Adjacent Land and the subject proposal.
The first respondent contended that the appellant had not identified any error of law, and that the appellant’s appeal to the decision of O’Neill, in which the applicant for joinder was a neighbour whose amenity was liable to be affected, was distinguishable on its facts.[18] The first respondent directed the Court’s attention to Debelle J’s observation in that case that each matter turned on its facts with respect to the contribution that the applying party would make to the proper disposition of the proceedings.
Consideration
[18] O’Neill (n 5).
An ERD Court appeal from a planning authority’s decision may entail the ventilation of issues beyond the scope of those canvassed in the original decision. As the Court of Appeal in Moloney said,
The subject matter of the planning appeal is not confined to the particular issues and arguments agitated between the parties to the appeal. It is, as a result, not confined by whether the parties are in agreement or otherwise about those. The subject matter of any planning appeal is the proposed development. Ultimately, consent ought be given or refused for the proposed development. That is necessarily concerned with the merits of the proposal. Where the developer proposes a revised development, that becomes the focus of the appeal.[19]
[19] Moloney (n 3), [92].
The Court of Appeal also reiterated on two further occasions that the ERD Court’s task is to determine whether the proposed development is appropriate “having regard to the terms of the relevant legislation and planning instruments, to grant development plan consent”.[20] The question of joinder is therefore to be determined by reference to the contribution that may, or would, be made by the joined party to that exercise. However, there is no indication in the ERD Court’s reasons that it relied on the scope of the reasons given by the State Planning Commission in reaching a conclusion that the appellant should not be joined to the appeal.
[20] Ibid, [172].
Rather, the reasoning is evidently based on the ERD Court’s assessment that the Boundary Interface Issues are of a nature that can be determined by planning expertise, and that sufficient of such expertise would be available from within the Court and from the parties as of right, such that the appellant could not assist the ERD Court in a way or to an extent that justified joinder in the interests of justice.
No error of law has been identified in the impugned reasoning. There was no identified principle that had been misapplied, nor any consideration dealt with improperly. The decision that the ERD Court did not require the appellant’s contribution in order to properly discharge its function, including in respect of the appellant’s interests and the interests of other neighbours, fell squarely within the scope of decisions that may be made by a specialist tribunal managing its own business.[21] No error in the identification, or assessment, of the relevant factors for the making of the decision was demonstrated.
[21] Pelligra Group Pty Ltd v State Planning Commission (n 6), [10] and [198].
Ground 5
The appellant’s Ground 5 alleged an error of law by the ERD Court in holding that the interests of justice contemplated by s 205(2)(c)(ii) did not require the appellant to be joined.[22] This was said to be an error in the final category of the House v King errors, namely that the decision was plainly unjust on the facts.
[22] Ibid, [8] and [44].
The interests of justice criterion in s 205(2)(c) signals that a special interest is not, alone, sufficient to justify joinder.
The power to make an order for joinder under s 17 of the ERD Court Act involves making a judgment in light of the facts of the case before the ERD Court.
In Pitt,[23] the Full Court (Doyle CJ, Duggan and Nyland JJ) allowed an appeal against a refusal to join a party to ERD Court proceedings, acknowledging that to do so was “unusual” and that for the Full Court to then exercise the ERD Court’s function was not to be undertaken readily.[24]
[23] Pitt (n 4).
[24] Ibid, 277 (per Doyle CJ).
Doyle CJ listed the factors as being the nature and strength of the interest of the applicant for joinder, the contribution that the applicant for joinder is likely to be able to make to the disposition of the proper issues to be determined, whether the interest advanced by the applicant and the material they would be likely to present would be adduced by an existing party, the interests of the parties as of right and the public interest in the prompt and efficient dispatch of proceedings.[25]
[25] Ibid, 275.
The appellant in these proceedings contends that, based on the factors identified in Pitt, it should have been joined because it:
·Has a long history of well-resourced participation in the proceedings by its legal representative;
·Raised proper planning issues that formed no part of the planning authority’s reasons for refusal;
·Adduced unchallenged evidence on the application for joinder that it would be legally represented and call evidence from two experts; and
·Would give evidence about anticipated future development of the land.
Further, the benefit of community involvement in planning decisions, and the fact that the proceedings would not be unduly prolonged or complicated by the joinder, meant that it was in the interests of justice for the appellant to have been joined.
The first respondent argued that no error of law had been identified and that the appellant’s arguments sought a merits review of a discretionary decision made by a specialist court.
Consideration
In Pitt, after identifying the factors to be taken into account on an application, the Doyle CJ said,
In my opinion the impact for an order for joinder upon the proceedings is not a reason for taking a narrow view of the circumstances in which an order for joinder can be made.[26]
[26] Ibid, 276.
However, this did not entail an order for joinder being made “as a matter of course”.[27] It was still necessary for the applicant to show both a sufficient interest and the existence of factors that would make it appropriate to make the order.
[27] Ibid, 276.
The Court of Appeal in Moloney said in a similar vein:[28]
Whilst the ERD Court is given a broadly-expressed power to refuse joinder, an application will ordinarily succeed where the applicant demonstrates the existence of a special interest in the subject matter of the appeal, the interests of justice favour joinder and there is no other ground on which it is appropriate to refuse joinder.
[28] Moloney (n 3), [165].
The Court found that no error of law had been demonstrated in the making of the order for joinder and that, as a specialist tribunal, the ERD Court should manage its own business.[29]
[29] Ibid, [10].
In my view, although the underlying outcome was different, this Court’s approach should be the same. Where, as here, no error of law has been identified, it is appropriate for the Court to acknowledge that an order for joinder is discretionary in nature, and entails the application of the statutory criteria informed by the factors enunciated in Pitt and endorsed in Maloney, and an assessment of what is required by the ERD Court to discharge its function in a particular case.
The appeal is dismissed.