Campbelltown City Council v Galluzzo
[2014] NSWLEC 149
•17 September 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Campbelltown City Council v Galluzzo [2014] NSWLEC 149 Hearing dates: 17 September 2014 Decision date: 17 September 2014 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) G8 Education Limited be joined as the second respondent to these proceedings.
(2) The applicant be granted leave to file an amended summons along the lines annexed to its notice of motion filed on 1 September 2014.
(3) The applicant file and serve its amended summons in respect of which leave is granted by 4pm on 18 September 2014.
(4) The applicant pay the first respondent's costs of its notice of motion.
(5) As between the applicant and the second respondent, no order as to costs of the applicant's notice of motion to the intent that each of those parties will pay its own costs thereof.
(6) The matter will be listed for directions before the list judge on 3 October 2014.
Catchwords: PRACTICE AND PROCEDURE - joinder as a party and amendment of summons Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A(1), s 121B, 124(3)
Uniform Civil Procedure Rules 2005 rr 2.1, 6.19 and 6.24Cases Cited: Ross v Lane Cove Council [2014] NSWCA 50 Category: Interlocutory applications Parties: Campbelltown City Council (Applicant)
John Frank Galluzo (Respondent)
G8 Education Limited (Respondent to motion for joinder)Representation: COUNSEL:
R O'Gorman-Hughes (Applicant)
P Rigg, solicitor (Respondent)
M Seymour (Respondent to motion for joinder)
SOLICITORS:
HWL Ebsworth (Applicant)
Galluzzo Lawyers (Respondent)
DibbsBarker (Respondent to motion for joinder)
File Number(s): 40179/14
EX TEMPORE Judgment
In these proceedings the applicant Campbelltown City Council seeks to enforce conditions of development consent granted to the respondent Mr John Galluzzo for a childcare centre at 1 Blomfield Road, Denham Court. The respondent owns the land and constructed the centre pursuant to the consent. G8 Education Limited (G8) currently operates the centre, which it leases from the respondent.
The matter now before the Court is a motion by the applicant seeking to join G8 as a party to the proceedings and leave to file an amended summons. The respondent does not oppose the motion. G8 opposes the motion.
BACKGROUND
The consent was granted by the Court on 29 September 2005. The consent:
(a) permitted the enrolment of a maximum of 74 children (condition 12);
(b) required prior to the issue of a construction certificate the submission of engineering details for the upgrade of the intersection of Campbelltown Road and Blomfield Road (condition 19);
(c) required, prior to the issue of a construction certificate, the written approval of the Roads and Traffic Authority as to intersection design to be provided to the applicant (condition 19);
(d) required that the intersection be upgraded to a type B intersection where enrolment exceeded 50 children (condition 19);
(e) required the applicant to be advised in writing a minimum of three months before the commencement of operation of the centre with more than 50 children (condition 19); and
(f) required the intersection construction works to be completed to the satisfaction of the Roads and Traffic Authority before the issue of an occupation certificate (condition 48).
Conditions 12, 19 and 48 are in the following terms:
12. Enrolment Numbers
This development consent permits the enrolment of maximum 74 children at the child care facility, in the following age configuration and subject to the concurrent use of Building 1 and 2. Any change to the maximum number of children in each age group, or the maximum total number of children enrolled at the centre requires Council's separate development consent.
- 0-2 year olds: maximum 15 children
- 2-6 year olds: maximum 59 children
Subject to compliance with the other conditions of this consent (including condition 26a), the use of Building 1 may commence prior to commencement and/or completion of work associated with Building 2. In such an instance the capacity of the child care centre where only Building 1 is available is limited to a maximum of 28 children. An interim Occupation Certificate may be sought upon completion of all related works to Building 1 to permit such use.
Prior to the operation of the childcare centre in buildings 1 and 2 for more than 50 children (not exceeding 54 [sic - 74] children), the type B work required by condition 19 of this consent to the intersection of Blomfield Road/Campbelltown Road shall be carried out.
19Intersection Construction
Prior to Council or an accredited certifier issuing a construction certificate, the applicant shall submit engineering details of the required intersection construction described below.
Upgrade the intersection to type A intersection (as contained within Austroads 'The Guide to Traffic Engineering Practice, Intersections at Grade Part 5'), comprising creation of a 4 m wide Clear Zone on the northern side of Campbelltown Road, directly opposite Blomfield Road. The Clear Zone should be achieved by the relocation of a light pole, the removal of 2-3 trees (if required) and minor road should [sic - shoulder] improvement works to the RTA's satisfaction prior to the commence [sic - commencement] of the centre, where the enrolment of children does not exceed 50 places. The intersection shall be upgraded to type B intersection (as contained within Austroads 'The Guide to Traffic Engineering Practice, intersections at Grade Part 5') where enrolment exceeds 50 children to a maximum of 74 children.
Details of Type A & B construction design details to be provided prior to the issue of Construction Certificate.
The applicant shall liaise with the Roads and Traffic Authority (RTA) Project Services manager, Traffic Projects Section, Blacktown (ph. 8814 2144) in preparation of the intersection design. Prior to issue of a construction certificate, the written approval of the RTA as to the intersection design is required to be provided to Council.
All works shall be to the sole cost of the applicant. The applicant may be required to pay a plan checking fee and lodge a performance bond with the RTA prior to release of the approved road design from the RTA.
The applicant shall advise council in writing a minimum of three months prior to commencement of operation of the centre with more than 50 children.
48.Intersection Construction
Prior to the principal certifying authority issuing an occupation certificate, or interim occupation certificate, all intersection construction works described under this consent shall be completed to the satisfaction of RTA.
It is Council's case that the centre is being operated with more than 74 children by G8 and that conditions 12, 19 and 48 have not been complied with. Of particular relevance is that a type B intersection required by condition 19 of the consent where more than 50 children are enrolled in the centre has not been built.
The current summons against Mr Galluzzo seeks a declaration that the respondent has failed to comply with condition 19, a an order that it comply with condition 19, a declaration that it has failed to comply with Council's order of 7 January 2013 under s 121B of the Environmental Planning and Assessment Act 1979, and an order that it comply with that order. The summons appears to be aimed at securing the upgrading of the intersection rather than being targeted, as is now also proposed, at the use by enrolment exceeding 50 children where the intersection has not been upgraded.
The proposed amended summons against Mr Galuzzo and G8 seeks: (a) a declaration that the respondents have breached s 76A(1) of the Environmental Planning and Assessment Act 1979 by carrying out development otherwise than in accordance with development consent; (b) a declaration that they have breached the Act by contravening condition 12 by permitting the enrolment of more than 74 children at the centre and by failing to carry out the type B work required by condition 19 prior to the operation of the centre for more than 50 children; (c) a declaration that the first respondent has breached the Act by contravening conditions 19 and 48 in various respects relating to the intersection and the centre; (d) a declaration that the first respondent has failed to comply with the s 121B order; (e) an order that the respondents upgrade the intersection to a CHR(S) intersection as approved by Roads and Maritime Services; (f) an order that the respondents reduce the number of children enrolled at the centre to a maximum of 50 until the upgrading order is complied with to the satisfaction of Roads and Maritime Services; and (g) an order that upon compliance with (e) (subject to (f)) the respondents be restrained from permitting the enrolment of more than 74 children at the centre until separate development consent is obtained for enrolment of further children at the centre and any preconditions to such enrolment are satisfied.
A modification application lodged by the respondent to delete condition 19 of the consent was refused by Council in November 2013. In March 2014 Council filed the summons in these proceedings. On 11 June 2014 the respondent lodged a development application with Council proposing erection of an additional building to extend the centre and to permit operation of the centre of up to 130 children. The proposal includes the upgrade of the intersection to a type CHR(S) intersection. The respondent filed a class 1 application (14/10710) in this Court on 5 September 2014 appealing against the deemed refusal of the application. The first mention date for that application is 3 October 2014.
On or about 16 July 2014 G8 lodged an application with Council proposing modification of the consent to permit operation of the centre with up to 90 children. The proposed modification also includes upgrade of the intersection to a type CHR(S) intersection. The consideration of that proposed modification was deferred at a council meeting a few weeks ago.
A mediation between Council, the respondent and G8 was recently conducted by a commissioner of the Court without success.
CONSIDERATION
The Uniform Civil Procedure Rules 2005 relevantly provide:
2.1 Directions and orders
The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.
6.19 Proceedings involving common questions of law or fact
(1) Two or more persons may be joined as plaintiffs or defendants in any originating process if:
(a) separate proceedings by or against each of them would give rise to a common question of law or fact, and
(b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions,
or if the court gives leave for them to be joined.
(2) Leave under subrule (1) may be granted before or after the originating process is filed.
6.24 Court may join party if joinder proper or necessary
(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.
(2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.
G8 submits that there should be no joinder or amendment at this stage because, first, if either of the pending class 1 proceedings in this Court or its pending modification application is successful, that will resolve the proceedings; and secondly, it is willing to undertake (inter partes) to reduce the numbers of children attending the centre until such time as the intersection works are undertaken or the numbers of children attending the centre is otherwise approved.
In Ross v Lane Cove Council [2014] NSWCA 50 at [51] Leeming JA, with whom Meagher JA and Tobias AJA agreed, held:
It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders.
In that case Mr Ross made alterations and additions to a property contrary to a development consent. The council obtained orders from this Court that Mr Ross demolish unauthorised works and reinstate the property in accordance with the consent. During the proceedings in this Court, it became apparent that he was no longer the registered proprietor of the property. The Court of Appeal held that the new owner ought to have been joined to the proceedings even though the new owner was not in breach nor threatened to breach. In my opinion, the current case is even stronger for the joinder of G8 because it is alleged in the proposed amended summons that it is in breach and relief is sought against it. I do not understand G8 to contest the applicability of the principle expounded in Ross. Rather, as I have earlier indicated, the burden of its submission is that it is not appropriate to join it as a party at this stage.
The motion should be approached from the standpoint articulated in Ross that there is an obligation on Council to join G8 in order to advance the case in the proposed amended summons (if not the case in the existing summons). The fact that the respondent's class 1 proceedings and G8's modification application are pending do not seem to me to be of sufficient weight to resist joinder and amendment. They may be more significant on any later application to adjourn further progress of these proceedings (after joinder and amendment have been effected) in order to see whether either is allowed such as to resolve these proceedings (cf s 124(3) Environmental Planning and Assessment Act 1979). But that is another matter. I therefore propose to make orders for the joinder of G8 as a respondent to the proceedings and for leave to amend the summons along the lines proposed by Council. It emerged in discussion during the hearing this morning that the precise terms of the proposed amended summons which is annexed to the Council's notice of motion may require some reworking. I therefore propose not to be prescriptive as to its precise content, thus affording Council an opportunity to give further consideration to its content in light of that discussion.
COSTS
Council does not seek any costs order for its notice of motion except for a costs order for today's hearing against G8 on the basis, it contends, that G8 unreasonably opposed joinder. The respondent Mr Galluzzo seeks his costs of Council's notice of motion (including the hearing today); I think that is reasonable. As between Council and G8, I consider that there should be no order as to the costs of Council's notice of motion, including the hearing today. On the one hand, those costs would have been avoided if Council had structured its case at the outset in the way that it now proposes and I do not think that G8 was unreasonable in raising the matters that it did in opposition to joinder at this stage. On the other hand, Council succeeded on the motion. On balance, a fair outcome is as I have proposed.
G8 seeks an order insulating it against the costs of the proceedings to date. At the end of the day, it may well be that it is entitled to insulation against costs to date or some of them. However, it is possible, as suggested by Council, that some of those costs will be shown to be fairly referable to the case against G8. I am therefore disinclined at this stage to make the insulation costs order G8 proposes.
ORDERS
The orders of the Court are as follows:
(1) G8 Education Limited be joined as the second respondent to these proceedings.
(2) The applicant be granted leave to file an amended summons along the lines annexed to its notice of motion filed on 1 September 2014.
(3) The applicant file and serve its amended summons in respect of which leave is granted by 4pm on 18 September 2014.
(4) The applicant pay the first respondent's costs of its notice of motion.
(5) As between the applicant and the second respondent, no order as to costs of the applicant's notice of motion to the intent that each of those parties will pay its own costs thereof.
(6) The matter will be listed for directions before the list judge on 3 October 2014.
Decision last updated: 18 September 2014
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