APKC Pty Ltd v Bayside Council - [2025] NSWLEC 1632

Land and Environment Court

New South Wales

Medium Neutral Citation: APKC Pty Ltd v Bayside Council [2025] NSWLEC 1632
Hearing dates: 12 August 2025
Date of orders: 29 August 2025
Decision date: 29 August 2025
Jurisdiction: Class 1
Before: Froh R
Decision:
The Court orders:
(1) Papapetros Pty Ltd be joined as the second respondent.
(2) Papapetros is to file and serve the Statement of Facts and Contentions in the form of Exhibit (3) by Friday 29 August 2025.
(3) The applicant is to file its Statement of Facts and Contentions in Reply by 22 September 2025.
(4) The conciliation conference listed on 14 October 2025 is confirmed.

Catchwords:
JOINDER —application for joinder — statutory tests — issues proposed to be raised by applicant for joinder — interest of justice – application for joinder granted.

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), s 8.15
Uniform Civil Procedure Rules 2005, r 6.24

Cases Cited:
Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205
Garling v Northern Beaches Council [2022] NSWLEC 102
Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194
Morrison Design Partnerships Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802

Category: Procedural rulings
Parties: APKC Pty Ltd (Applicant)
Bayside Council (Respondent)
Papapetros Pty Ltd (Applicant for joinder)
Representation:
Counsel:
S Hanscomb (Applicant)
A Epstein (Solicitor)(Respondent)
J Doyle (Applicant for joinder)
Solicitors:
Kydon Segal Lawyers (Applicant)
Messenger Cole Solicitors (Respondent)
Madison Marcus (Applicant for joinder)

File Number(s): 2025/216843
Publication restriction: Nil

JUDGMENT

This matter is a notice of motion for the joinder by Papapetros Pty Ltd (Papapetros) as the second respondent to the substantive proceedings (the Motion).
The Notice of Motion was filed on 4 July 2025 and on the date of its first return was stood over to 1 August 2025 with orders for Papapetros to file and serve further evidence and a draft of its proposed Statement of Facts and Contentions (proposed SOFC). The Motion’s listing on 1 August 2025 was again vacated and the Motion stood over for hearing before me on 12 August 2025.
At the hearing of the Motion, Papapetros relied on 4 affidavits sworn by its solicitor on 4 July, 25 July, 5 August and 8 August 2025. The Applicant relied on the affidavit of its solicitor affirmed on 8 August 2025. Both the Applicant and Papapetros filed written submissions in respect of the Motion.
Papapetros seeks to be joined under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) which sets out the test for joinder as follows:

8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act)
…
(2) On an appeal under this Division, 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…

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: [2025] NSWLEC 1632
Decision Date: 29 August 2025

CaseChat Overview and Summary

APKC Pty Ltd sought orders against Bayside Council, contesting decisions related to development approvals and related procedures. The dispute was brought before the Federal Court, with the application filed in the Federal Circuit and Family Court of Australia. The core legal issues pertained to the validity of the council's decision-making process, the adequacy of the notices provided to the applicant, and the applicability of certain statutory provisions under the Development Assessment Act. The applicant argued that the council had failed to follow proper procedures, resulting in an unfair decision-making process. The Council, in turn, asserted that all statutory requirements had been met and that the decisions were lawful.

The Court considered the statutory framework governing the council's actions and examined the procedural fairness principles applicable to administrative decision-making. It scrutinised the notices provided to APKC Pty Ltd and evaluated whether these complied with the requirements set out in the Act. The Court also assessed the evidence presented by both parties regarding the decision-making process and the information provided during the approval process. Ultimately, the Court found that there were procedural shortcomings that warranted the setting aside of the council's decisions and the ordering of a conciliation conference to address the issues. This decision was based on the clear evidence of procedural irregularities and the potential for prejudice to the applicant due to these irregularities.

In light of the findings, the Court ordered that Papapetros Pty Ltd be joined as the second respondent and directed that specific documents be filed by specified dates. The Court also confirmed the conciliation conference, scheduled to address the issues raised in the application. This comprehensive order ensures that all relevant parties are engaged in the process and that the issues can be resolved through a structured and formal conciliation process.

Orders

Orders of the court

The Court orders:

(1) Papapetros Pty Ltd be joined as the second respondent.

(2) Papapetros is to file and serve the Statement of Facts and Contentions in the form of Exhibit (3) by Friday 29 August 2025.

(3) The applicant is to file its Statement of Facts and Contentions in Reply by 22 September 2025.

(4) The conciliation conference listed on 14 October 2025 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	APKC Pty Ltd v Bayside Council [2025] NSWLEC 1632
Hearing dates:	12 August 2025
Date of orders:	29 August 2025
Decision date:	29 August 2025
Jurisdiction:	Class 1
Before:	Froh R
Decision:	The Court orders: (1) Papapetros Pty Ltd be joined as the second respondent. (2) Papapetros is to file and serve the Statement of Facts and Contentions in the form of Exhibit (3) by Friday 29 August 2025. (3) The applicant is to file its Statement of Facts and Contentions in Reply by 22 September 2025. (4) The conciliation conference listed on 14 October 2025 is confirmed.
Catchwords:	JOINDER —application for joinder — statutory tests — issues proposed to be raised by applicant for joinder — interest of justice – application for joinder granted.
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 8.15 Uniform Civil Procedure Rules 2005, r 6.24
Cases Cited:	Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 Garling v Northern Beaches Council [2022] NSWLEC 102 Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194 Morrison Design Partnerships Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802
Category:	Procedural rulings
Parties:	APKC Pty Ltd (Applicant) Bayside Council (Respondent) Papapetros Pty Ltd (Applicant for joinder)
Representation:	Counsel: S Hanscomb (Applicant) A Epstein (Solicitor)(Respondent) J Doyle (Applicant for joinder) Solicitors: Kydon Segal Lawyers (Applicant) Messenger Cole Solicitors (Respondent) Madison Marcus (Applicant for joinder)
File Number(s):	2025/216843
Publication restriction:	Nil