Blue Fountain Pty Ltd v Liverpool City Council

[2024] NSWLEC 1413

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blue Fountain Pty Ltd v Liverpool City Council [2024] NSWLEC 1413

Hearing dates:

13 June 2024

Date of orders:

19 July 2024

Decision date:

19 July 2024

Jurisdiction:

Class 1

Before:

Froh R

Decision:

The Orders of the Court are:

(1) The motion is dismissed.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act, s 8.15

Texts Cited:

Practice Note Class 1 Development Appeals

Category:

Procedural rulings

Parties:

Blue Fountain Pty Ltd (Applicant)
CVW Investments Pty Limited (Applicant for Joinder)
Liverpool City Council (Respondent)

Representation:

Counsel:
L Nupuri (Applicant)
E Vuu (Applicant for Joinder)
P Hudson (Solicitor) (Respondent)

Solicitors:
Mills Oakley Lawyers (Applicant)
D’Agostino Solicitors (Applicant for Joinder)
Marsdens Law Group (Respondent)

File Number(s):

2023/134130

Publication restriction:

Nil

Judgment

1. This matter is a notice of motion seeking joinder under ss 8.15(2)(a) and 8.15(b)(i) of the Environmental Planning and Assessment Act 1979 (EPA Act) by CVW Investments Pty Limited (CVW).

2. The substantive proceedings concern an appeal by Blue Fountain Pty Ltd against Liverpool City Council’s (Council) imposition of conditions to its modification application to its development consent.

3. The Applicant’s modification application was determined by the Council. In its determination the Council modified the conditions of consent to construct serviced apartments and a tavern at Edmondson Park.

4. The Applicant is appealing the Council’s modification of conditions 4 and 133A to its development consent.

5. Condition 4 of the development consent as originally granted to the Applicant by the Council reads as follows:

“Condition 4

A roundabout is to be constructed on the corner of Perrone Road and private access road to the adjoining development to the west. The roundabout is to facilitate and minimise traffic conflicts at the intersection, due to the expected additional traffic movements through the intersection.”

6. The modification application lodged by the Applicant sought to amend condition 4 of the development consent as follows:

“A roundabout is to be constructed on the corner of Perrone Road and private access road to the adjoining development to the west prior to the issue of a Construction Certificate for Stage 2 works. The roundabout is to facilitate and minimise traffic conflicts at the intersection, due to the expected additional traffic movements through the intersection.”

7. The modified condition 4 of the development consent is as follows:

“A roundabout is to be constructed on the corner of Peronne Road and private access road to the adjoining development to the west prior to the issue of a Construction Certificate for Stage 1 works. The roundabout is to facilitate and minimise conflicts at the intersection, due to the expected additional traffic movements through the intersection.”

8. Condition 133A is a new condition to the development consent and provides as follows:

“Road Design Information

Prior to issues of an Occupation Certificate, revised plans are required to the satisfaction of Council’s Traffic Unit that the extension of Solenso Lane (formerly Birdwood Lane) to the existing east-west section of Zeppelin Road, is to have the same carriageway width and kerb alignments as the existing road.”

9. The Council granted consent to CVW for a development on the adjoining site. CVW’s development consent for the adjoining site includes the following conditions.

“3. A roundabout is to be constructed on the corner of Perrone Road and private access road to the adjoining development to the west. The roundabout is to facilitate and minimise traffic conflicts at the intersection, due to the expected additional traffic movements through the intersection.

…

124. Prior to the issue of an Occupation Certificate, the construction of the following roads is to be completed on the subject site (Lot 266 DP 1200043) to facilitate the development:

(a) The construction and opening of Birdwood Lane between Zeppelin Road and Perrone Road; and

(b) The extension of Nivelle Road and Mons Lane

The roads are to be completed in full and operating prior to the issue of the Occupation Certificate.”

10. The conditions of consent in the Applicant’s and Applicant for Joinder’s development consents refer to the same road works in similar terms. CVW’s application for joinder was supported with evidence from Mr Pierobon who sets out in his evidence that the Applicant’s and Applicant for Joinder’s applications for development consent were submitted to Council for approval at similar times, assessed by the same officer and the Council encouraged the Applicant and the Applicant for Joinder to work together to reach a solution to address the community’s concerns about local traffic impacts of both their developments. This ultimately resulted in the conditions of consent for road works now present in both their development consents.

11. CVW is now seeking joinder under ss 8.15(2)(a) and 8.15(b)(i) of the EPA Act which state:

“(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 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

…

that the person be joined as a party to the appeal.”

12. Turning to the first basis for joinder and whether CVW is able to raise an issue that should be considered in relation to this appeal but would not likely be sufficiently addressed without its joinder.

13. Mr Pierobon’s evidence refers to the issues he would like to raise before the court if joined as “Unaddressed Issues”. “Unaddressed Issues” is a defined term used in Mr Pierobon’s evidence referring to CVW’s meetings with Council, and CVW’s submissions to Council concerning the Applicant’s modification application.

14. From my review of the evidence and the submissions made to me by both parties, CVW’s “Unaddressed Issues” is that CVW is concerned about the modification of those conditions of consent relating to the road works that are common to it and the Applicant. This concern is because the Applicant and CVW appear to have reached some arrangement whereby the costs of the road and roundabout construction envisaged under the near identical terms of their respective development consents would be shared between them. CVW’s concern is that the modification of the conditions of consent that are now sought by the Applicant would leave CVW to bear the costs of those road works alone.

15. As this is an appeal relating to the modification of conditions of consent, the Applicant has filed and served its Statement of Facts and Contentions. This document was filed and served on 9 June 2023 and sets out the Applicant’s grounds for seeking to amend its modified conditions of consent.

16. Unfortunately, despite being ordered to file and serve its Statement of Facts and Contentions in Reply by 26 June 2023, then by 31 May 2024 and then by 14 June 2024, the Council did not file and serve its Statement of Facts and Contentions in Reply until 2 July 2024. These breaches of the Court’s orders are not determinative in respect of my findings regarding this joinder application, but the failure of the Respondent to comply with the Court’s orders and the failure of both the Applicant and the Respondent to comply with the requirements of the Class 1 practice note requiring them to relist the proceedings in the event of a breach of the Court’s orders has not assisted the Court in the timely determination of this motion.

17. Furthermore, if the Council’s Statement of Facts and Contentions in Reply was filed and served in accordance with the Court’s orders, then CVW and other members of the community would have been provided with an understanding of what is being proposed in their local area by the Applicant, the Council’s views on the Applicant’s modification proposal and been afforded the opportunity to form a view on how the proposed modification to the development may impact particularly on their interests.

18. The Council’s Statement of Facts and Contentions in Reply now clearly states that its view is that the Applicant’s proposed modification to its conditions of consent is outside the consent authority’s power to grant, and in the alternative Council argues that the modification is not substantially the same development, and then in the further alternative sets out what Council would consider to be acceptable changes to the modified conditions of consent in respect of the road works.

19. Having now had a chance to review the Council’s Statement of Facts and Contentions in Reply, I consider those “Unaddressed Issues” that CVW is concerned about, being the modification of the conditions of consent common between it and the Applicant about the road works remain squarely as issues before the Court for determination and do not require the joinder of CVW to be sufficiently addressed.

20. Turning now to the second basis for joinder by CVW, being that it is in the interests of justice that I order joinder.

21. I do not consider it necessary to join CVW in the interests of justice. As CVW submitted and provided evidence on in the hearing of this motion, CVW has been given numerous and meaningful opportunities to be heard by the Council through a multi-year development assessment and modification assessment process. Indeed, CVW’s conditions of development consent and the relationship of those conditions to the Applicant’s conditions of development consent are set out in the Applicant’s own Statement of Facts and Contentions filed with the court in the substantive proceedings. CVW has had many opportunities to express both in writing, and in meetings, with the Council its concerns about the Applicant’s proposed modifications. There is no suggestion that it has not had adequate opportunity.

22. Given the origin of how the conditions of consent under appeal by the Applicant came about, it appears that CVW now feels that it should have some say in the determination of the Applicant’s modification application. However, CVW has no entitlement beyond any other member of the public and has no entitlement to be an adversary to the applicant’s modification application in a contest as to whether the modification application should be granted by the consent authority.

23. My view is that this is not a proper case to order joinder and I dismiss the motion.

Orders

24. The Court orders that:

1. The motion is dismissed.

S Froh

Registrar of the Court

Decision last updated: 22 July 2024