Ace Gutters Pty Limited v Hurstville City Council

[2008] NSWLEC 1204

Land and Environment Court

of New South Wales

CITATION:

Ace Gutters Pty Limited v Hurstville City Council [2008] NSWLEC 1204

PARTIES:

APPLICANT
Ace Gutters Pty Limited

RESPONDENT
Hurstville City Council

FILE NUMBER(S):

10026 of 2008

CORAM:

Bly C

KEY ISSUES:

Appeal :- Practice and Procedure, application for joinder in industrial development appeal.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED:

Morrison Design Partnership Pty Limited v North Sydney Council and Director General of the Department of Planning [2007] NSWLEC 802

DATES OF HEARING:

22/05/2008

 
DATE OF JUDGMENT: 

29 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Robson S.C.
Instructed by Herbert Greer and Rundle

RESPONDENT
Mr P. Rigg, solicitor
of Deacons

APPLICANT for Notice of Motion
Mr R Lancaster, barrister
Instructed by Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

29 May 2008

10026 of 2008 Act Gutters Pty Limited v Hurstville City Council

JUDGMENT

Introduction

1 These proceedings relate to a development application for a wet paint line as part of the existing industrial use at 69 Boundary Road, Peakhurst. The paint line has been installed within an existing building and comprises a large item of machinery, involving a two-stage continuous process line where large coils of steel are cleaned, primed, painted, passed through an oven, dried and cooled and recoiled. It is not presently being used.

2 This appeal began on 5 March 2008 as a conciliation conference pursuant to s. 34 of the Court’s Act. It was adjourned part-heard and the conference is scheduled to resume on 23 June 2008.

3 BlueScope Steel Limited, an objector to the development application, are now seeks by Notice of Motion dated 4 March 2008 to be joined as a party to the proceedings

4 In Morrison Design Partnership Pty Limited v North Sydney Council and Director General of the Department of Planning [2007] NSWLEC 802 Preston CJ describes the facultative nature of s 39A of the Land and Environment Court Act 1979 noting that objectors to development applications normally have no right to be joined as a party to appeal proceedings. Also the public participation provisions of the Environmental Planning and Assessment Act 1979 should not be viewed as being adversarial and the community and affected persons have no entitlement to be an adversary in the appeal process. Hence the power under s 39A is not a plenary power to allow, in each and every circumstance, objectors to become a party to appeals. The circumstances are limited to those in subsections (a) and (b) of s 39A.

5 Under s 39A(a) the Court may, at its discretion, order joinder in these proceedings if it forms an opinion either that BlueScope Steel:

...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.

6 Alternatively under s 39A(b)(i) and (ii), joinder can be ordered if:

it is in the interests of justice, or it is in the public interest.

BlueScope's submissions

7 I understand that BlueScope’s contention that it is not directly affected by this proposal notwithstanding that Ace Gutters Pty Limited is a competitor in the roof guttering market. Despite this BlueScope submits that it should, pursuant to s 39A(a), be joined as a party because it is able to raise and prosecute issues that are not likely to be sufficiently addressed by the applicant and the council. By reference to the relevant principles set out by the Chief Judge in Morrison Design it is contended that it is appropriate to join BlueScope because the Court would be deprived of meaningful assistance or there would be no meaningful contradictor on important issues in the case.

8 This reflects the notion that if a person is able to give meaningful assistance on issues where it is likely that without that assistance those issues would not be sufficiently addressed within the meaning of s 39A(a), then joinder should be given. Moreover, if the consent authority is running neutral on particular issues it will not be an effective contradictor on those issues that will thus not be sufficiently addressed.

9 In relying on s 39A(a), BlueScope submits that there are five reasons why the requirements of this subsection are met. In essence these reasons are:

• As a result of the proposal's non-compliance with the definition of Light Industry under Hurstville Local Environmental Plan 1994 the application is for prohibited development and the council is running neutral on this question. It is not likely that the issue will be sufficiently addressed if BlueScope is not joined.
• The council has abandoned its role as a contradictor in the appeal by suggesting in its Statement of Facts and Contentions (15 May 2008) that if the paint line is operated in accordance with certain recommendations and council's draft conditions of consent then the amenity impacts of the development may be acceptable. There is, in this regard, a high level of uncertainty and ambiguity associated with the applicant's reports and proposed conditions of consent. BlueScope is able to provide meaningful assistance in relation to adverse impacts associated with the proposed development.
• BlueScope will call independent expert witnesses to give evidence about the adverse impact of the development in various respects, where the council does not propose to do so. Instead Council will only make its own officers available to provide evidence. Hence the merit issues will not be sufficiently addressed.
• BlueScope contends that pursuant to s. 91 of the Environmental Planning and Assessment Act 1979 the proposed development is integrated development and approvals/environment protection licences from relevant approval bodies must be obtained before any consent is granted. Again, BlueScope can provide meaningful assistance where this has not otherwise been brought forward by the applicant or by the council.
• There are gaps or potentially important inconsistencies in information provided in relation to the proposal and fundamental aspects of the operation are not adequately explained or reconciled. These matters include: the technical capacity of the production process and associated traffic movements; the quantity of chemical waste that will be produced; and proposed hours of operation.

10 BlueScope also submits that there will not be, as a result of it being joined, any delay in the proceedings.

The council's submissions

11 In response the council submits that joinder would not be appropriate; it will continue to exercise its responsibility as the appropriate contradictor and all of the matters in issue and those raised by BlueScope either have or will be properly addressed as the conciliation conference proceeds. Council acknowledges that further assessments and consideration of the proposal are still to be carried out including statutory requirements, amenity, air quality, noise and traffic. More particularly the question of integrated development (that is nothing to do with joinder) is a matter that will be considered and resolved. The council proposes to present any objection/evidence provided by BlueScope as part of the conciliation conference process. It can and will deal with any such objection/evidence.

12 Council also pointed out that s 38 of the Court's Act requires that proceedings be conducted with as little formality and technicality, and with as much expedition as the requirements of relevantly applicable legislation permit. BlueScope's joinder would be contrary to s 38, given council's comprehensive approach to the appeal and as a consequence it would not be in the interest of justice and the public interest would not be served. Joinder would also result in additional costs and delays.

13 The applicant also submits that BlueScope's joinder would not be appropriate, especially as the council has taken an expert and rigorous approach to the case and has not abandoned its role as a contradictor. Any outstanding issues must be seen in the light of BlueScope's involvement thus far including: its participation has an active objector; it's provision of expert material and close consideration of the development application; and a request for additional detailed material associated with the application. The applicant has comprehensively responded to the request for additional material although BlueScope now seeks further particulars. The applicant's essential reasoning against joinder involves:

• The council is an experienced consent authority properly raising contentions (and issues) it believes appropriate.
• BlueScope's concerns are comprised within the council's contentions and concerns and within the significant expert evidence now marshalled.
• The issues identified by the council are able, almost without exception to be dealt with by council and if required the Court.

14 The applicant submits that the purpose of s 39A is not to create multiple parties in proceedings which are otherwise subject of proper control and which afford an opportunity for objectors' concerns to be taken into account. The creation of further parties will prolong the case, contrary to the intent of the legislation, which, as referred to by the council, requires the just and efficient determination of matters. The court is not the venue for the ventilation of commercial disputes between competitors. Also, the conciliation conference process will facilitate the appropriate resolution of all of the evidence including any objections (expert or otherwise) and the issues.

Court's consideration and conclusions

15 In my opinion it is unnecessary in determining the question of joinder to decide whether or not this development proposal is prohibited or comprises integrated development. These questions have been squarely raised and must be resolved. The council (and the Court on appeal) has the responsibility of ensuring that the proposal is permissible and in this case must ensure that the development is light industry, otherwise it is prohibited. In my opinion this issue can be resolved as part of the appeal process that is now underway.

16 The permissibility question is a mixed question of fact and law; for an industry to be defined as light industry and thus permissible it must not interfere unreasonably with the amenity of the neighbourhood. The amenity of the neighbourhood has been a matter of concern to the council from the beginning. Once the amenity question is decided so too will the permissibility question be decided.

17 As for the integrated development question, this is plainly one that needs to be resolved particularly as a licence for the operation of the paint line may be required pursuant to the Protection of the Environment Operations Act 1997. Whilst this question was not raised as one of the council's original contentions the council now agrees that it needs to be resolved.

18 In relation to any legal question associated with the development application, should the parties come to an agreement pursuant to s 34(3) or consent to the Commissioner disposing of the proceedings pursuant to s 34(4)(b) of the Court's Act, the Court in the proper exercise of its functions must, before disposing of the proceedings, in accordance with s 39(4) have regard to any relevant act or instrument made under any such act. It will need to be demonstrated that any relevant statutory provisions have been complied with and I accept that the council can and will attend to these matters. In these circumstances I do not accept that the questions of prohibition and integrated development require joinder for their proper resolution.

19 In the Statement of Facts and Contentions the council identifies two issues that are in dispute: the classification of the development; and the amenity impacts of the development. These issues encompass the definition of light industry and impacts on the amenity of the surrounding neighbourhood through traffic, air quality, noise and other matters set out in letters of objection. In this context BlueScope directed the court's attention to the council's statement that:

If the paint line is operated in accordance with the recommendations as listed in the reports in response to BlueScope Steel's request for particulars and council's draft conditions of consent, then the amenity impacts of the development may be acceptable . (My emphasis).

20 In essence BlueScope, submits that this statement indicates that the council will not be a true contradictor especially in relation to amenity impacts. The council rejects this submission, contending that the statement leaves the question open for resolution and the issues raised in it sufficiently encompass the matters of concern to BlueScope. I agree and am satisfied that these matters are likely to be sufficiently addressed if BlueScope is not joined as a party to the proceedings. The issues will be addressed by council reports, submissions and expert reports including those prepared by on behalf of BlueScope and these materials will be utilised in the conciliation conference and by the Court should it be required to dispose of the proceedings pursuant to s 34(4)(b) of the Court's Act. In this regard I note that the parties have not objected to BlueScope's attending the conciliation conference when it resumes.

21 If BlueScope wishes to provide meaningful assistance, relying on its own knowledge of this kind of plant and its operation, and engage consultants to prepare reports of an expert nature (any expert reports must, of course comply with the relevantly applicable Uniform Civil Procedure rules) there is no reason why this cannot be done. Such materials can be provided, as submissions to the proposal. The council does not oppose this approach and on this basis I see no reason why BlueScope's concerns cannot be effectively taken into account.

22 By so doing this will, in my opinion, enable the matters of concern to BlueScope to be sufficiently addressed, and will assist in the consideration of all of the issues at the continuing conciliation conference and if necessary at the subsequent hearing should this be required.

23 I have thus reached the conclusion that BlueScope should not be joined in this appeal. In reaching this conclusion I have taken into account that the issues identified by the council may not entirely encompass those matters raised by BlueScope. However taking into account the opportunities that are available for BlueScope to express its concerns, the fact that it is not directly affected and giving some weight to the council's opposition to joinder and its insistence that it will press all of the relevant issues, any omission does not attract sufficient significance to cause me to exercise my discretion under s 39A in favour of BlueScope.

24 Whilst BlueScope is to be commended for its public spirit in seeking to ensure that this application is appropriately dealt with, this is not enough to warrant joinder and I thus reject the application that they be joined as second respondent to these proceedings.

___________________

T A Bly
Commissioner of the Court
ljr