Blakeney v Mosman Council
[2013] NSWLEC 37
•18 March 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Blakeney v Mosman Council [2013] NSWLEC 37 Hearing dates: 18 March 2013 Decision date: 18 March 2013 Jurisdiction: Class 1 Before: Craig J Decision: Motion dismissed
Catchwords: PRACTICE AND PROCEDURE - joinder of parties - statutory power of joinder - adjoining landowner - no additional evidence to be lead by applicant for joinder - issues addressed by respondent Council. Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Land and Environment Court Rules 2007Cases Cited: Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5
The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205
The Sabian Mandaean Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94Category: Procedural and other rulings Parties: Michael Blakeney (Applicant)
Mosman Council (Respondent)Representation: C Ireland (Applicant)
C Rose, solicitor (Applicant for joinder)
P C Tomasetti SC with A Hemmings (Respondent)
Bartier Perry Solicitors (Applicant)
Maddocks Solicitors (Applicant for joinder)
Pikes & Verekers Lawyers (Respondent)
File Number(s): 11022 of 2012
EX TEMPORE Judgment
Janice Simpson and Bruce Simpson applied by notice of motion to be joined as parties to these proceedings. Their motion was heard on Monday last as the hearing for the principal proceedings was fixed to commence on Tuesday. At the conclusion of the hearing on Monday I announced that I proposed to dismiss the motion. As the hearing had occupied the entire day and as a site inspection, including the taking of evidence from residents, had been fixed for Tuesday, I indicated that I would give brief reasons for my decision this morning (Wednesday). These are those reasons.
Background
The applicant, Michael Blakeney, seeks development consent to construct a concrete hardstand area within the property known as 22B Burran Avenue, Mosman (22B Burran Avenue). The hardstand is to include a turning bay. The development application also seeks consent to construct a driveway over land described as an unformed section of public road known as Stanton Road. The construction of that driveway will enable vehicular access to be gained to the proposed parking area at the rear of 22B Burran Avenue. It is the construction of the driveway that lies at the heart of the proceedings.
The development application was lodged on 13 April 2012. As it had not been determined within "the relevant period", on 2 October 2012 the applicant appealed to this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act). On 20 November 2012 Mosman Council (the Council) resolved to refuse the application. It was empowered so to do, notwithstanding the institution of the appeal, by s 82(3) of the EPA Act.
The application by Mr and Mrs Simpson for joinder is made pursuant to s 39A of the Land and Environment Court Act 1979 (the Court Act). Their application is opposed by Mr Blakeney. The Council does not oppose the joinder, although it does submit that the joinder is not necessary for the proper determination of these proceedings.
Mr and Mrs Simpson reside at 6 Stanton Road. Their land adjoins what is described as the unformed section of Stanton Road. The proposed access driveway will commence adjacent to their front boundary. They seek joinder on the basis that issues that would sustain refusal of the development application are not to be agitated by the Council on the hearing of the appeal. They make this claim by reference to the statement of facts and contentions filed by the Council in accordance with the Court's usual practice directions.
The grounds for joinder
Ultimately, two issues were identified by Mr and Mrs Simpson as being issues that they would seek to agitate in addition to those identified by the Council. First they dispute that the land identified in the development application as an unformed section of Stanton Road is, in law, a public road. If they are correct, then the development application must be refused as the owner of the land, whoever that may be, has not provided consent to the making of the development application, as is required by the provisions of the EPA Act and the Environmental Planning and Assessment Regulation 2000. Second, they contend that Aboriginal heritage has not been and is not being adequately addressed by the Council in its contentions. Such an issue is not nominated by the Council in its statement of facts and contentions.
As to the first issue, namely the public road question, Mrs Simpson has annexed to an affidavit sworn by her a number of title searches together with a letter of advice prepared by her solicitors. That advice is to the effect that the solicitors are unable to determine who owns the unformed road and that there has not been evidence produced to them to demonstrate "formal and proper" dedication of the land as a public road.
The second issue which Mr and Mrs Simpson seek to propound is also the subject of annexed documents to Mrs Simpson's affidavit. This evidence contains extracts from a register of Aboriginal sites maintained by the National Parks and Wildlife Service as well as extracts from an Aboriginal heritage study commissioned by the Council. The study identified Aboriginal heritage sites in the Reserve that adjoins the site of the unformed road. No such sites are identified as occurring with the unformed road.
There are two matters of present relevance that need to be noticed. First, the Council opposes the grant of development consent sought by Mr Blakeney and actively maintains that position in the conduct of the appeal before the Court. Indeed, the Council is represented by experienced senior and junior counsel for the purpose of conducting its case.
Second, a number of written objections have been framed by Mr and Mrs Simpson and submitted to the Council. Those objections will be in evidence before the Court in the principal proceedings. Further, Mr and Mrs Simpson are to be called (and I add, have now been called) on the first day of hearing of the principal proceedings. Their evidence will therefore be considered by the Court, along with all other evidence that is tendered in the course of the proceedings.
Section 39A of the Court Act is in the following terms:
"39A Joinder of parties in certain appeals
On an appeal under section 96(6), 96AA(3), 96A(5), 97 or 98 of the Environmental Planning and Assessment Act 1979, 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 opinion:
(a) that the person 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, or
(b) that:
(i) it is in the interests of justice, or
(ii) it is in the public interest,
that the person be joined as a party to the appeal."
Reliance was placed by the solicitor representing Mr and Mrs Simpson only upon the first limb of the two limbs which are contained in s 39A. I am satisfied that the issues raised by Mrs Simpson and intended to be agitated by the Council will be sufficiently addressed.
The categorisation of the land over which the driveway access is proposed as an unformed public road was initially challenged by the Council. On Friday last it withdrew that issue after consideration by the Council's legal advisors of all available evidence. Nonetheless, the Council has accepted, through its counsel, the practical onus of establishing to the Court, in its capacity as "a model litigant", that the road has been dedicated as a public road. The applicant in the proceedings, Mr Blakeney has also indicated, through his counsel, that a practical onus is accepted to establish to the Court that on the evidence to be adduced, the road has been dedicated as a public road. That evidence will be critically assessed by the Court. Moreover, the solicitor acting for Mr and Mrs Simpson has stated that all evidence upon which they would seek to rely, if joined as parties, was the same evidence to be relied upon both by the Council and Mr Blakeney.
Further, the material tendered for the purpose of the motion amply demonstrates that Aboriginal heritage and any potential impact by the proposed driveway, if approved, upon any items of Aboriginal heritage has been considered. Not only did the relevant planning instrument require as much, but the reports to the Council when it refused the application, directed attention to a considerable volume of material that addressed that issue. The material so identified included, but extended beyond that material, which is annexed to the affidavit of Mrs Simpson.
It was submitted on behalf of Mr and Mrs Simpson that the Court would be greatly assisted if there was a third party agitating those issues which they sought to raise, particularly that directed to the proper categorisation of the road as a public road. However, it must clearly be borne in mind that the provisions of s 39A of the Court Act are not framed so as to require that any person seeking to raise an issue to be joined as a party.
Principles and their application
A number of decisions of this Court have considered applications of the present kind. The Court's approach was summarised in Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5 in which I said at [16]:
"The caution that should be exercised before joinder in circumstances such as the present is, if I may respectfully say so, appropriately identified in the judgment of the Chief Judge of this Court in Morrison Design Partnership Pty Ltd v North Sydney Council and the Director-General of the Department of Planning [2007] NSWLEC 802; (2008) 159 LGERA 361. In particular, I refer to the observations made by his Honour as to the distinction that the legislature has drawn between development appeals involving objectors to designated development and those appeals in respect of development that are not so classified."
The present appeal is in the latter category. The judgment in Freshwater continued:
"Neither the power of joinder provided by s 39A nor the utilitarian application of "Double Bay Marina" participation should be seen as the provision of a plenary power to allow, in each and every circumstance, objectors to development to be joined or participate in a development appeal, with separate representation."
Those observations are supported, as I have said, by a number of decisions of this Court.
Furthermore, the fact that there are issues that an applicant for joinder wishes to raise which a respondent council did not think sufficiently important to raise does not automatically warrant an order for joinder under s 39A (The Sabian Mandaean Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94). In exercising the discretion available under s 39A, the Court has observed that a multiplicity of parties is undesirable for the efficient conduct of litigation in proceedings brought under s 97 of the EPA Act (The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205).
Those matters are of significance in the present case. While it is not suggested for one moment that the issues sought to be raised by Mr and Mrs Simpson are unimportant, for the reasons that I have indicated, I am satisfied that they will or have been adequately addressed in the course of the conduct of this appeal.
Those reasons are sufficient to dispose of the motion and reflect my reason for so doing on Monday last. Given the issues to be agitated, the just, quick and cheap disposition of these proceedings does not warrant and did not warrant the exercise of discretion to permit the joinder sought by Mr and Mrs Simpson.
Costs
In his written submissions in opposing the notice of motion, Mr Blakeney sought costs if, as has happened, the notice of motion brought by Mr and Mrs Simpson is dismissed. I do not accede to that application. The issue of costs is governed by r 3.7 of the Land and Environment Court Rules 2007 that relevantly requires that in proceedings of this kind an order for costs should only be made if it is fair and reasonable so to do. Although I have not acceded to the motion for joinder, it cannot be gainsaid that the application made by Mr and Mrs Simpson was lacking in merit.
Particularly is this the case, given that it was only on Friday last that the Council sought to withdraw, as a contention, the proper categorisation of the unformed section of Stanton Road as a public road. It seemed to me that Mr and Mrs Simpson were entitled at least to agitate that issue if not the others upon which they relied for the purpose of the argument that they sought to mount. As I have said, ultimately the question will be addressed in the course of the hearing without their intervention as parties.
For those reasons, the notice of motion is dismissed and there is no order for costs.
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Decision last updated: 02 April 2013
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