Australian Turf Club Limited v Liverpool City Council

[2013] NSWLEC 1267

Land and Environment Court

New South Wales

Medium Neutral Citation:	Australian Turf Club Limited v Liverpool City Council [2013] NSWLEC 1267
Hearing dates:	3 and 23 December 2013
Decision date:	23 December 2013
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	Pursuant to s 39A of the Land and Environment Court Act 1979, Mr Poletti is joined as a party in each of Matters 10790 and 10791 of 2013
Catchwords:	JOINDER: no issues pressed by respondent; proposed consent orders between parties
Legislation Cited:	Land and Environment Court Act 1979
Cases Cited:	Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675 Manderrah Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 115 Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205
Category:	Procedural and other rulings
Parties:	Mr M Poletti (Applicant for joinder) Australian Turf Club Limited (Applicant) Liverpool City Council (Respondent)
Representation:	Mr P Clay SC (Applicant for joinder) Mr P McEwen SC (Applicant) Mr P Couch, solicitor (Respondent) Gadens Lawyers (Applicant for joinder) Minter Ellison (Applicant) Sparke Helmore (Respondent)
File Number(s):	10790 and 10791 of 2013

Judgment

1. SENIOR COMMISSIONER: In each of these proceedings, an application is made on behalf of the proposed intervener for joinder pursuant to s 39A of the Land and Environment Court Act 1979 (the Act), and, in the alternative if joinder were not to be granted pursuant to that provision, for more limited participation pursuant to s 38(2) of the Act, known as a Double Bay Marina joinder - that being the process derived from Double Bay Marina Pty Ltd vWoollahra Municipal Council (1985) 54 LGRA 313.

1. The applications for joinder are made on the basis that the applicant, Mr Poletti, wishes to raise the alleged economic impact of the proposal by the Australian Turf Club to be permitted to continue to operate two horse stabling facilities at Warwick Farm Racecourse - they being horse stabling facilities originally constructed to enable the removal of horses from Randwick Racecourse and its environs as part of the World Youth Day celebrations of the Roman Catholic Church.

1. That removal and the erection of the stables was permitted by special legislation passed by the New South Wales Parliament that permitted the erection and operation of those for a specific period of time, that time being now long past.

1. The Australian Turf Club has made an application to regularise what has been the continuing operation of those facilities. The appeal against the refusal by Liverpool City Council (the council) to support that continued operation has given rise to the two separate sets of proceedings, one for each of the stabling facilities.

1. The process, as is conventionally undertaken by the Court in such a matter, commenced through a conciliation conference pursuant to s 34 of the Act with that conciliation conference being conducted by me, and permitted the parties to address the contentions that were raised by the council in its Statements of Facts and Contentions - those Statements of Facts and Contentions have been tendered on the two motions, the evidence in each proceeding being taken to be evidence in the other to the extent relevant.

1. In matter 10790 of 2013, the council raised two contentions, the first being that there was inadequate documentation (this being the failure to provide an odour assessment report and an acoustic assessment report or an environmental management plan). The second was that the proposed development was not demonstrated not to result in an adverse economic impact on existing stabling operations within the Warwick Farm precinct. A more confined Statement of Facts and Contentions was pressed in matter 10791 of 2013, merely an adoption of the same economic impact matter that was pressed in the other proceedings.

1. At the commencement of the conciliation conference and during the course of it, council's representative on that occasion, Mr Couch, indicated that those contentions were no longer pressed. The contention with respect to inadequate information was no longer pressed on the basis that such information had been provided to the satisfaction of the council and that on the other matter the council had considered the matter and no longer pressed the contention.

1. Mr Poletti, the applicant for joinder in each of the matters, had been granted leave by consent to attend, accompanied by his legal representative, the conciliation conference (subject to a confidentiality agreement that he and his legal representative gave to the Court with respect to that participation).

1. During the commencement of the conciliation conference (which took place on site at Warwick Farm Racecourse), I had the opportunity to hear submissions from a range of persons who objected to the consent being granted. Whether or not the notes of that will become part of the evidence in determining the substantive proceedings is a matter that awaits consideration. The inspection also included an inspection of the exterior of the two stabling facilities and of the interior of the stabling facilities located on the Warwick Farm Racecourse land proper.

1. The application for intervention was initially supported by an affidavit of an employed solicitor of the solicitor for Mr Poletti, Ms Slimnikanovski. That affidavit which has been read on this motion. At para 43, the deponent set out what she understood to be Mr Poletti's main areas of concern relating to the proposed development. They are listed as follows:

• economic impact;
• flooding;
• unacceptable acoustic impacts; and
• unacceptable traffic impacts.

1. During the course of hearing this motion, I have had the advantage of an affidavit from Mr Anthony Betros, a town planner, who set out, in an annexure to his affidavit, a list of matters that he anticipated might be pleaded by Mr Poletti if he were granted leave to intervene. They were somewhat wider in some aspects than those set out in Ms Slimnikanovski's affidavit. It was conceded by Mr Clay SC, counsel for Mr Poletti, that he did not have an evidentiary basis for a number of those matters and that the matters that he wished to press in support of the application for intervention, in each instance, were those that were confined to the principal issue of the economic impact of the proposed approval to continue use of the facilities, and, as a subsidiary but not separate issue to such participation - if permitted - the odour impact on the economic operation or effective operation of other horse stabling facilities in the vicinity.

1. It is my understanding, from discussion that took place on the first day of this hearing of leave to intervene, that the odour issue is only pressed with respect to the stabling facilities that are within the Warwick Farm horse training precinct and not with respect to those stabling facilities that are located on the course proper.

1. The bases for intervention under s 39A are set out in that section. They are, that joinder may be permitted as a party to the appeal if I am of the opinion that, in this instance, Mr Poletti 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, or that the matter is in the interests of justice, or that it is in the public interest that Mr Poletti be joined as a party to the appeal.

1. Whether or not Mr Poletti, if granted leave to intervene pursuant to s 39A, could have that leave to intervene constrained in a fashion as was dealt with by Pepper J in Manderrah Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 115 is, in my view, a matter that would remain to be determined post-joinder rather than to be dealt with in anticipation of such joinder. The issues that I am required to address are those that are potentially raised by Mr Poletti in the context of the statutory framework of s 39A, one that, at least prima facie, allows an unconstrained participation in the proceedings with all the rights, responsibilities and attendant risks that are attached to and arise from such participation.

1. As a consequence, I do not consider that I should express any opinion on whether or not it would be appropriate, at this stage, for Mr Poletti to raise the broader range of matters that Mr Betros adverts to in the attachment to his affidavit. That is a matter for a later time.

1. There are, in my view, two reasons why there should be further participation by Mr Poletti in the proceedings. There are, at least as relates to one of them, good reasons I am satisfied, arising from ss 39A(b)(i) and (ii) that, that participation should be pursuant to s 39A rather than by Double Bay Marina pursuant to s 38(2) of the Court Act.

1. The first reason why it is appropriate is that the assessment of economic impact that was undertaken by the relevant council officer in the analysis of the application in a delegated assessment report (being in relevant terms identical for both applications - and therefore it only being necessary to turn to the detail of one), was set out in exhibit C in the proceedings. The relevant economic and social impact was first dealt with under the heading, "Economic and Social Impact" on p 8 of the assessment officer's report where it says:

A draft SEPP Competition 2010 states that the commercial viability of a proposed commercial development is not a matter that may be taken into consideration by a consent authority for the purposes of determining a development application unless the proposal is likely to have an overall adverse impact on the extent and adequacy of facilities and services available in the local community.

1. That comment was, by necessary implication, adopted and applied to the submissions made by Leyshon Consulting on behalf of Mr Poletti to the council and set out on p 10 of the report stating that the current state government policy ruled out viability of the proposed commercial viability of the development as it impacted on other persons or businesses in the vicinity.

1. I take that position at its highest for the substantive applicant in resisting the application for joinder, even though that assessment report is dated 12 December 2013, a date well after the council had determined that it no longer wished to press the question of the economic impact and the s 34 conciliation conference in this outcome having occurred prior to the date of that.

1. Although the report mentions the Leyshon Consulting material provided by Mr Poletti, it does not undertake any detailed analysis of its validity or otherwise (I expressing no view about the validity or otherwise of that material) nor does it in any way make any assessment of or respond to the validity or otherwise of the material that was provided by a consultancy to the substantive applicant in the proceedings, Urbis, in a letter addressed to the relevant team leader at the council on 8 November 2013 in response to the Leyshon report.

1. Given that I have no evidentiary basis prior to the council's determination not to press the question of economic impact, and therefore have no way of understanding what the reasons for that might have been (but presuming that, consistent with that which was set out in the subsequent assessment report, those reasons might have been consistent with that report) it means that there is no basis upon which the contradictor has adequately considered the matters that are in contention under that heading - that is the economic impact of the proposal.

1. For that reason, I am satisfied that the joinder of Mr Poletti under s 39A is in the public interest and, on very fine balance, would also satisfy the first limb (in that I am not satisfied that the council material sufficiently addresses that contention, even though that contention had been abandoned, or at least considered by the council no longer to be appropriate to be pressed prior to the assessment report) of the other bases for participation in the section.

1. There is, however, a second reason why it would be appropriate to permit Mr Poletti to be joined. That is the submission made, although not in great detail by Mr Clay, that the decision of the Court of Appeal in Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119, in some way with respect to the present law in New South Wales may have modified or altered what has been, on my understanding of it, the accepted line of authority concerning the assessment of economic impacts (in a planning sense) that had followed from the decision of the High Court in Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675.

1. If, in fact, Randall is to be taken as modifying or expanding the opportunities for pleading of such matters, it seems to me that, as I am unaware of any authority that deals with that proposition, it is appropriate in the public interest and the interests of justice to permit that to be argued, and permit that to be argued on a basis that, if any conclusion I were to draw on that point were regarded by either party as giving rise to a question of law, that it was of sufficient importance that that matter should be subject to full argument and, if necessary, the possibility of appeal to clarify whatever might be the outcome of the proceedings.

1. That, in itself, is an entirely separate conclusion to my broader proposition that Mr Poletti should be joined under s 39A on the merits of the issue that he seeks to raise.

1. As a consequence of that, the order of the Court is that:

(1) Pursuant to s 39A of the Land and Environment Court Act 1979, Mr Poletti is joined as a party in each of Matters 10790 and 10791 of 2013.

Tim Moore

Senior Commissioner

Decision last updated: 07 April 2014