Ali v Liverpool City Council - [2009] NSWLEC 107

Land and Environment Court

of New South Wales

CITATION: Ali v Liverpool City Council [2009] NSWLEC 107
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Ashraf Ali
RESPONDENT
Liverpool City Council

FILE NUMBER(S): 10193 of 2009

CORAM: Pepper J

KEY ISSUES: PRACTICE AND PROCEDURE :- joinder - Double Bay Marina order - whether appropriate for intervenor to be joined to proceedings to raise issues that would not otherwise be raised on consent orders hearing - absence of contradictor before the Court - application granted

LEGISLATION CITED: Environment Planning and Assessment Act 1979 ss 79C and 123
Land and Environment Court Act 1979 ss 38(2) and 39A
Civil Procedure Act 2005 s 56
State Environment Planning Policy (Infrastructure) 2007
Sydney Regional Environment Plan No 20 – Hawkesbury – Nepean River (No 2) 1997
Liverpool Local Environment Plan 1997
Liverpool Local Environment Plan 2008

CASES CITED: Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63
Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205
Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313
Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293
Metricon Qld Pty Ltd v Tweed Shire Council [2008] NSWLEC 283
Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) 151 LGERA 394
Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361
Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226
The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94

DATES OF HEARING: 26 June 2009

EX TEMPORE JUDGMENT DATE: 26 June 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Ayling SC
SOLICITORS
HWL Ebsworth Lawyers
RESPONDENT
Mr P Marincowitz (solicitor)
SOLICITORS
DLA Phillips Fox
INTERVENOR
Mr C Leggat SC with Mr N Eastman
SOLICITORS
CA Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

26 June 2009

10193 of 2009 Ashraf Ali v Liverpool City Council

EX TEMPORE JUDGMENT
HER HONOUR :

The Application

1 This is an application by way of notice of motion filed in Court on 24 June 2009, by the Federation of Hellenic Associations Limited (“the Intervenor”) for an order pursuant to the Court’s general power to make a ‘Double Bay Marina’ order under s 38(2) of the Land and Environment Court Act 1979 (“the LEC Act”) (see Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314-315) in relation to Class 1 proceedings currently before the Court.

2 An order granting short service of the motion was made by the Court on 24 June 2009.

3 Originally the application was for the Intervenor to be joined as a party to the Class 1 proceedings pursuant to s 39A of the LEC Act and in the alternative, for a ‘Double Bay Marina order’ to be made, however, the former order was abandoned by the Intervenor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 107
Decision Date: 26 June 2009

CaseChat Overview and Summary

The case of Ali v Liverpool City Council involved an application by the Federation of Hellenic Associations Limited (Intervenor) to be joined as a party to Class 1 proceedings before the Land and Environment Court of New South Wales. The proceedings were related to a development application for an educational establishment. The Intervenor sought to raise significant issues that it believed would not be sufficiently addressed by the existing parties, namely Ashraf Ali (Applicant) and Liverpool City Council (Council). The primary legal issues centered on whether the Intervenor should be granted leave to participate in the proceedings and to give evidence and make submissions regarding the economic and planning impacts of the proposed development.

The court considered the principles applicable to joinder, emphasizing that the Court has broad discretion under section 38(2) of the Land and Environment Court Act 1979 to inform itself on any matter as it sees fit. The decision to allow joinder should be guided by the need to avoid a multiplicity of parties and experts, but this consideration must be balanced against the importance of ensuring that all relevant issues are properly ventilated before the Court.

The Intervenor argued that it wished to raise significant issues that would not otherwise be agitated by the existing parties and that the matter could not be concluded within the allocated time for the consent orders hearing. The Council and the Applicant, while not accepting the Intervenor's submissions for the purpose of the consent orders hearing, acknowledged the significance and complexity of the issues raised.

The court found that the contentions raised by the Intervenor were of real substance and merited further consideration. Given the substantive nature of these contentions and the need for expert evidence to properly address them, the court concluded that it was appropriate to grant the Intervenor leave to participate in the proceedings. The consent orders hearing was vacated, and the matter was relisted for further directions. The court granted leave for the Intervenor to adduce evidence and make submissions regarding the economic and planning impacts of the proposed development.

Orders