Bolinger v Blackmore Design Group

[2015] NSWLEC 38

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bolinger v Blackmore Design Group [2015] NSWLEC 38
Hearing dates:	17 March 2015
Decision date:	17 March 2015
Jurisdiction:	Class 1
Before:	Pain J
Decision:	1. No leave to appeal out of time for the summons dated 5 November 2014 is granted. 2. The summons dated 5 November 2014 is dismissed.
Catchwords:	APPEAL – whether non-party can file a s 56A appeal in relation to decision of commissioner not to allow joinder as a party – whether leave to appeal out of time should be granted – whether appellant has a fairly arguable case
Legislation Cited:	Civil Procedure Act 2005 s 149B(1), s 149E Environmental Planning and Assessment Act 1979 s 97 Land and Environment Court Act 1979 s 39A, s 56A Land and Environment Court Rules 2007 r 7.1(1)(a) Uniform Civil Procedure Rules 2005 r 49.19
Cases Cited:	Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116 Blackmore Design Group v Council of the City of Sydney [2014] NSWLEC 1136 Blackmore Design Group v Council of the City of Sydney (No 2) [2014] NSWLEC 1204 BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 Carstens v Pittwater (1999) 111 LGERA 1; [1999] NSWLEC 249 Jingalong Pty Ltd v Todd [2014] NSWCA 330 Lowy v The Land and Environment Court of NSW and Others (2002) 123 LGERA 179; [2002] NSWCA 353 Quakers Hill SPV Pty Limited v Blacktown City Council (2012) 192 LGERA 45; [2012] NSWLEC 200 Sertari Pty Limited v Quakers Hill SPV Pty Limited [2012] NSWCA 292 V’landys v Land and Environment Court of NSW [2012] NSWLEC 218 Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 3 – Joinder) [2010] NSWLEC 28
Category:	Procedural and other rulings
Parties:	Bolinger, Donna-May (Applicant) Blackmore Design Group (First Respondent) Council of the City of Sydney (Second Respondent)
Representation:	Counsel: Mr P Beazley (solicitor) (Appellant) Mr M Staunton with Ms J Reid (First Respondent) No appearance (Second Respondent) Solicitors: Beazley Singleton Lawyers (Appellant) Sattler & Associates Lawyers (First Respondent)
File Number(s):	10913 of 2014

EX TEMPORE Judgment

1. A Commissioner of the Court refused Ms Bolinger’s application for joinder as a party in s 97 appeal proceedings on 10 July 2014 in Blackmore Design Group v Council of the City of Sydney [2014] NSWLEC 1136. The substantive judgment in the s 97 appeal filed by Blackmore Design Group (Blackmore) was handed down by the Commissioner, Blackmore Design Group v Council of the City of Sydney (No 2) [2014] NSWLEC 1204, on 3 October 2014. Final orders granting development consent subject to conditions were issued on 21 November 2014. Ms Bolinger filed a summons seeking leave to appeal against the Commissioner’s decision not to join her as a party on 5 November 2014. Assuming s 56A of the Land and Environment Court Act 1979 (the Court Act) applies at all appeals are required to be commenced within 28 days of the decision appealed against (r 50.3(1)(a) Uniform Civil Procedure Rules 2005 (UCPR)) or 60 days from the date of the decision (r 7.1(1)(a) of the Land and Environment Court Rules 2007 (the Court Rules)). It is unnecessary to resolve which timeframe applies. Leave to appeal out of time is therefore required, amongst other procedural obstacles to the summons. Blackmore has filed a Notice of Motion dated 24 December 2014 seeking dismissal of the summons pursuant to r 13.4(1)(b) of the UCPR because no cause of action is disclosed. Both matters can be heard together.

2. Ms Bolinger’s application is that while she is not a party to the proceedings, she can commence a s 56A appeal and also submits that an application under s 39A of the Court Act for joinder can be made in this s 56A appeal as such an application can be made at any time. As advised to her solicitor in the course of the hearing if any s 56A appeal is available, the section relied on by Ms Bolinger for this appeal, it can only be in relation to a question of law identified in relation to the reasons of the Commissioner in relation to the joinder application judgment. I do not consider it can be open in s 56A appeal proceedings which are permissible only on a question of law to rehear the original motion for joinder under s 39A already heard by the Commissioner. If leave to appeal is granted and an error of law found the matter may be remitted to the Commissioner for a rehearing of the joinder application.

3. Relevant sections of the Court Act provide:

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.

56A Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners

(1) A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2) On the hearing of an appeal under subsection (1), the Court shall:

(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b) make such other order in relation to the appeal as seems fit.

(3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

4. The Applicant read the affidavit of Donna-May Bolinger dated 4 November 2014 in support of the summons. The following documents were annexed to Ms Bolinger’s affidavit: the Commissioner’s decision of 10 July 2014 dismissing the Applicant’s Notice of Motion, fax confirmation for a transcript order form and two structural reports by Dynamic Structural Engineering dated 2 December 2011 and 29 December 2012. The Applicant tendered two letters that became exhibit A. The first letter is from the Applicant to the Registrar dated 5 November 2014 in which the Applicant identifies her intention to lodge appeals in relation to the Commissioner’s decisions in interlocutory and substantive proceedings. The second letter is from the Applicant to the Chief Judge dated 6 November 2014 requesting a review of the Registrar’s decision not to allow appeals to be filed.

5. The Court Book filed by Blackmore contains the affidavit of Donna-May Bolinger dated 8 July 2014. In this affidavit Ms Bolinger states that:

The impact upon my property includes solar, privacy, acoustic, loss of amenity and potential undermining of the foundation and general damage to my property.

6. The First Respondent read the affidavit of Tony Sattler filed 12 March 2015 and the affidavit of Robert Livingstone Blackmore filed 11 March 2015. Mr Sattler’s affidavit outlines the procedural history of the matter and annexes a number of documents, including the statement of facts and contentions and the transcript for proceedings before the Commissioner on 10 July 2014.

7. Mr Blackmore’s affidavit outlines the procedural history of the matter and the financial impacts of further delay on Norfolk (Redfern) Pty Limited, the owner of the property the subject of these proceedings. Mr Blackmore’s affidavit annexes a number of documents, including letters of offers to purchase which are subject to the resolution of the s 56A appeal, an agency agreement for sale of the property and a schedule of costs incurred as a result of the delay.

8. The issues as I understand them are, firstly, can an appeal lie under s 56A from the interlocutory decision of the Commissioner where an application for joinder was refused so that Ms Bolinger is not a party in the substantive proceedings. There is little authority on that interesting procedural point. Mr Beazley submitted that an order under s 56A of the Court Act is still an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) so that s 39A can still operate.

9. Mr Staunton counsel for Blackmore submitted to the contrary that there is no scope for a s 56A appeal where a person is not a party to proceedings. He referred to several decisions which have considered aspects of this issue but not always in any depth (it being unnecessary for the resolution of issues or because the matter had to be dealt with quickly before a duty judge). In Lowyv The Land and Environment Court of NSW (2002) 123 LGERA 179; [2002] NSWCA 353 Giles JA in the Court of Appeal held that no appeal lay from a decision of the first instance judge in this Court not to allow joinder of a party. The appropriate course was by way of prerogative relief. That case preceded the introduction of s 39A of the Court Act. In V’landys v Land and Environment Court of NSW [2012] NSWLEC 218 at [5] the statement is made that an objector who is not a party in s 97 appeal proceedings does not have a right of appeal under s 56A. Mr V’landys was seeking relief in the nature of certiorari to quash a decision of an acting commissioner to grant development consent in a s 97 appeal. The proceedings were commenced in the Supreme Court and then transferred to this Court pursuant to s 149B(1) of the Civil Procedure Act 2005, this Court exercising the powers of the Supreme Court under s 149E. In Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116 a non-party sought to review a decision of a commissioner not to allow him to join as a party in proceedings and sought an order that he be joined as a party. It appears from the judgment the basis for making the application was unclear. That application was treated as an application to set aside the commissioner’s decision not as an appeal under s 56A of the Court Act.

10. In Quakers Hill SPV Pty Limited v Blacktown City Council (2012) 192 LGERA 45; [2012] NSWLEC 200 the owner of land affected by changes to a right of way (Sertari) sought to join as a party under s 39A before the Registrar which application was refused. The application for review was made pursuant to r 49.19 of the UCPR 2005. Sheahan J as duty judge considered Lowy and held at [64] that a non–party such as Sertari has to seek relief from the Supreme Court where the Registrar does not allow joinder. Before the Court of Appeal Basten J as duty judge sitting alone in Sertari Pty Limited v Quakers Hill SPV Pty Limited [2012] NSWCA 292 formed the tentative view only because he had not heard argument on the merits that there was power in a judge of this Court to undertake a review of the Registrar’s decision pursuant to r 49.19 of the UCPR as for the purposes of the joinder application the applicant was a party to the proceeding in that sense and had a right of review, at [13]. As the parties ultimately determined a different way forward in the proceedings in this Court the question was not finally determined at appellate level. In Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 3 – Joinder) [2010] NSWLEC 28 I held that an interlocutory decision of a commissioner to allow joinder of a party could be reviewed under s 56A but that is not the situation here.

11. Section 39A states that in an appeal under s 97 of the EPA Act the Court can at any time order the joinder of a party. Section 56A states that a right of appeal exists for a party in Class 1 proceedings against an order or decision of the Court on a question of law. The text of s 56A does not refer to an appeal under s 97 of the EPA Act. Any right of appeal under s 56A arises from the operation of the Court Act not the EPA Act. This suggests there is no appeal available to Ms Bolinger. The avenue available is by way of prerogative writ in the Supreme Court as occurred in Lowy (before s 39A introduced) and in V’landys (after s 39A introduced). The tentative preliminary view to the contrary of Basten JA in Sertari was made in the context of a review of a registrar’s decision under r 49.19 of the UCPR. It is not necessary that I finally resolve this issue as I find against Ms Bolinger on other issues below. I would ordinarily prefer to spend more time on this question given that these proceedings are otherwise finalised with the delivery of the substantive judgment in October 2014 and final orders being issued in November 2014. Seeking to essentially reopen concluded proceedings in the manner attempted here appears not to aid in the just quick and cheap resolution of issues.

12. Secondly, should leave to appeal out of time be granted in the exercise of the Court’s discretion?

13. The relevant principles to be applied when an extension of time is sought in which to bring an appeal are summarised in the recent judgment of McColl JA in Jingalong Pty Ltd v Todd [2014] NSWCA 330 where her Honour said at [39]-[40]:

39 The discretion to extend time for the filing of a notice of appeal is given for the sole purpose of enabling the court to do justice between the parties. Accordingly the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice to Jingalong. In order to determine whether the rules will have that effect, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J.

40 The four factors of general relevance to an application to extend time within which to appeal are the length and reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]) (“Tomko”) per Basten JA (Hodgson and Ipp JJA agreeing).

14. This requires consideration of whether there is any reasonable explanation for the delay in the commencement of these appeal proceedings. There is no affidavit from Ms Bolinger explaining the delay in commencing proceedings. Statements in the summons filed by Ms Bolinger are not evidence. Mr Beasley submitted from the bar table that the reason for the delay was that Ms Bolinger wished to wait until the substantive decision was handed down which occurred in October 2014. That Ms Bolinger chose to take such a course when she could have appealed at any stage after 10 July 2014 must be weighed against any evidence of prejudice to Blackmore occasioned by further delay in re-opening proceedings if this appeal is allowed. The proceedings are final at this stage with orders made and entered on 21 November 2014 with development consent issued subject to conditions. The financial cost to the developer is substantial as identified in the affidavit of Mr Blackmore read in the proceedings and the present attempts to the sell the property are on hold until the s 56A appeal is finalised. These circumstances suggest that no leave to appeal should be granted.

15. Ms Bolinger also needs to demonstrate that there are fairly arguable grounds or substantial merit in her grounds of appeal. There is no scope in this s 56A appeal to rerun the merits of the Commissioner’s decision not to allow joinder of Ms Bolinger as a party. Further, any attempt to assess the Commissioner’s decision by reference to events which occurred after her decision on 10 July 2014 cannot be relevant, contrary to some submissions made on behalf of Ms Bolinger which relied on events after 10 July 2014 and the final judgment of the Commissioner delivered in October 2014. When asked to identify the error of law alleged in the Commissioner’s decision the error identified by Ms Bolinger’s solicitor was a failure to properly attribute weight to the matters relevant to the joinder application and in particular too much weight was placed on the delay in the making the application for joinder as this issue was identified at [8] and [9] of the judgment.

16. Little was submitted to support this contention by Mr Beazley, Ms Bolinger’s solicitor, other than reference to the Commissioner’s judgment at [8] and [9] where she discussed delay as a factor relevant to her consideration. The application for joinder was filed on 9 July 2014 the day before the commencement of a two day hearing. It was argued on the first day of the hearing. In these circumstances it clearly was a relevant factor in the Commissioner’s consideration of the application, as properly discussed at [8] and [9].

17. In relation to whether any other error law is identified which could conceivably found appeal grounds, the Commissioner’s reasons thoroughly identify the matters requiring consideration in the two limbs relevant to a s 39A application, review the somewhat limited evidence of Ms Bolinger on the application for joinder where her affidavit dated 8 July 2014 identifies in one sentence the issues she is concerned about, review the opportunities afforded to her to participate in the proceedings such as her attendance at the view of the Court in the morning of 10 July 2014 where her concerns could be made known to the Court on site at her house and identify how the issues of concern have been considered in the proceedings.

18. As identified in Blackmore’s counsel’s extensive submissions based on Mr Sattler’s affidavit setting out the history of the matter, following the lodging of the DA in 2012 the applicant was provided with numerous opportunities to voice her concerns to the Council, she participated in the s 34 conference, attended at the site visit where she could address the Court and had an opportunity to make a submission on amended plans. Much of this is noted in the Commissioner’s judgment on joinder.

19. In terms of the strength of Ms Bolinger’s joinder application, during the argument on the joinder application on the first day of the hearing based on the transcript of the first day attached to the affidavit of Mr Sattler no documents were provided to the Court to demonstrate the additional evidence which Ms Bolinger wished to rely on. The basis for joinder appears weak.

20. I note for completeness that the summons filed by Ms Bolinger before she was legally represented contains lengthy criticism of the Commissioner’s judgment and alleges breaches of natural justice inter alia. None of these statements were relied on by her solicitor and appear to address the merits of the Commissioner’s consideration which are not permissible in this s 56A appeal.

21. Given that the exercise of discretion by a decision-maker requires that person to assess and weigh up factors relevant to that decision it is not apparent that there is an error of law which arises in these circumstances, unless the attribution of weight to relevant matters can be said to have badly miscarried in some way see Carstens v Pittwater (1999) 111 LGERA 1; [1999] NSWLEC 249 at [26] citing BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 Mahoney JA at 279. I do not consider Ms Bolinger has a fairly arguable case were this s 56A appeal (assuming this is available) to proceed.

22. No leave to appeal out of time is granted. The summons dated 5 November 2014 is dismissed, as sought in the Notice of Motion dated 24 December 2014 filed by Blackmore.

23. Ms Bolinger submitted that she brings the proceedings in the public interest and should not be subject to any costs order. The parties are given the opportunity to make further submissions on costs.

Orders

24. The Court makes the following orders:

1. No leave to appeal out of time for the summons dated 5 November 2014 is granted.

2. The summons dated 5 November 2014 is dismissed.

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Decision last updated: 25 March 2015