AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces

AQC Dartbrook Management Pty Ltd appealed to the Court of Appeal of New South Wales against a refusal by the Minister for Planning and Public Spaces to modify a development consent. During the appeal proceedings, the parties reached an agreement on the terms of a decision to dispose of the appeal. However, an intervenor, the Housing Industry Association of NSW (HIA), raised a jurisdictional issue, contending that the Court of Appeal lacked the power to dispose of the appeal in the manner agreed by the parties. The central dispute therefore concerned the Court's power to join the HIA as a party to the proceedings and its ability to make orders based on the parties' agreement.

The Court of Appeal was required to determine several legal issues. These included whether section 8.15(2) of the *Environmental Planning and Assessment Act 1979* (NSW) provided a power for the joinder of the HIA in this context, and if not, whether rule 6.24 of the *Uniform Civil Procedure Rules 2005* (NSW) offered an alternative source of power. The Court also had to consider whether the joinder of the HIA was necessary for the determination of all matters in dispute, whether the Court had the power to amend the modification application, and whether any error had been made in the exercise of discretion to join the HIA, or if such joinder was legally unreasonable.

The Court of Appeal held that section 8.15(2) of the *Environmental Planning and Assessment Act 1979* was not an available power for the joinder of the HIA in this appeal. However, it found that rule 6.24 of the *Uniform Civil Procedure Rules 2005* did provide a basis for joinder, as it was necessary for the determination of all matters in dispute. The Court allowed the appeal, setting aside the orders made by the Land and Environment Court on 20 November 2020. In lieu of those orders, the Court dismissed paragraph 3 of the notice of motion filed on 9 November 2020, without prejudice to the HIA's entitlement to seek to be heard regarding the making of orders pursuant to section 34(3) of the *Land and Environment Court Act 1979* (NSW). The Court ordered the HIA to pay Dartbrook's costs of the proceedings in the Court of Appeal.