Cassar v Northern Beaches Council

[2023] NSWLEC 1588

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cassar v Northern Beaches Council [2023] NSWLEC 1588

Hearing dates:

04 October 2023

Date of orders:

05 October 2023

Decision date:

05 October 2023

Jurisdiction:

Class 1

Before:

Froh R

Decision:

The orders of the Court are:

(1)   That the motion is dismissed.

Catchwords:

JOINDER —application for joinder — statutory tests — issues proposed to be raised by applicant for joinder— public interest – Notice of Motion dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.15

Land and Environment Court Act 1979, s 38

Cases Cited:

Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313

Category:

Principal judgment

Parties:

Craig Smith (Applicant for Joinder)
Leslie Cassar (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
D Robertson (Applicant for Joinder)
J Smith (Applicant)
C Gough (Solicitor)(Respondent)

Solicitors:
Maddock (Applicant for Joinder)
Hones Lawyers (Applicant)
Storey and Gough (Respondent)

File Number(s):

2022/331015

Publication restriction:

Nil

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. REGISTRAR: Mr Smith filed a Notice of Motion on 27 September 2023 seeking the following orders:

1. to be joined as a party to proceedings between the Applicant, Mr Cassar, and the Respondent, Northern Beaches Council (the Council); or

2. alternatively, to be granted leave, pursuant to subss 38(2) and (3) of the Land and Environment Court Act 1979 (LEC Act), to appear at the hearing, cross examine witnesses and make submissions; or

3. alternatively, to be granted leave to appear as amicus curiae at the hearing.

2. It was submitted to me by Counsel for Mr Smith that his client sought for two documents to be tendered to the Court for the purpose of the substantive hearing, namely the Pittwater’s Ocean Beaches Plan of Management (POM) and the reasons for the decision granting consent.

3. Mr Smith relied on the evidence of Mr Dyer which annexed the POM as well as a proposed Statement of Facts and Contentions (SOFAC).

4. The SOFAC sets out two matters which Mr Smith submits have not been raised by the parties to the proceedings.

1. Firstly, the Modification Application should be refused because it is inconsistent with the reasons given by the consent authority for the grant of consent; and

2. Secondly, it is not in the public interest because it is inconsistent with, and contrary to, the POM which applies to Whale Beach and the carpark by reason of the likely impact on vehicle parking, traffic safety, and pedestrian access and linkages.

5. I note that Mr Smith does not seek leave to rely on his own expert evidence but, if joined, it would be necessary for Mr Cassar’s and the Council’s experts to confer in respect of the above proposed contentions. Mr Smith has also informed the Court he would cross examine witnesses and make submissions to the Court. I note that this will add to the cost of all parties to the proceedings and will also increase the length of the hearing.

6. I turn now to the test for joinder under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act).

7. Section 8.15(2) of the EPA Act states:

(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

(ii) it is in the public interest,

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

8. The test for joinder is a two-step process. Firstly, I must consider whether the test in s 8.15(2) of the EPA Act has been met and secondly, whether it is appropriate to exercise my discretion and order a party joinder.

9. The Council neither consents to nor opposes the motion, and the application is opposed by the Applicant.

10. The first proposed contention raised by Mr Smith is a jurisdictional point. This is clear from the styling of the contention and made plain in the written submissions provided to the Court. This does not satisfy the test for joinder under s 8.15(2) of the EPA Act.

11. This is because when considering whether to grant consent to a modification application, the presiding officer must be satisfied about all jurisdictional preconditions. Although it is not expressly raised in the Councils SOFAC, it is the express obligation of the presiding officer in carrying out his or her function to consider this and provide reasons about it.

12. As such, I do not consider it necessary to join Mr Smith on the basis of this proposed contention. It is also not necessary for him to be joined so that this document might be considered, or that submissions on it are provided to the Court.

13. Turning now to Mr Smith’s proposed contention 2, which concerns the POM and the impact of the proposed development on vehicle parking, traffic safety and, pedestrian access and linkages.

14. Although it has been submitted to the Court that this proposed contention differs to those in the Council’s SOFAC, I fail to see how. Traffic, road safety and parking impacts are squarely raised before the Court at contentions 2 and 3 of the Council’s SOFAC and are fully particularise.

15. Although the POM is not expressly referred to in the Council’s SOFAC, the POM is in the Council’s bundle that has been filed and will be sought to be tendered at the substantive hearing.

16. Furthermore, the failure to expressly name the POM does not, in my view, mean that the issues of parking, traffic and road safety will not be sufficiently addressed and does not require the joinder of Mr Smith to raise these issues with the Court.

17. It was put to me that it is in the public interest for Mr Smith to be joined. I disagree, the issues that Mr Smith proposes to raise are squarely before the Court and capable of being addressed by the parties, their legal representatives and experts. The public interest does not require the joinder of Mr Smith.

18. As such, I find the test for joinder under s 8.15(2) of the EPA Act to have failed. Given my findings, I do not think it is appropriate to make a Double Bay Marina order in order for witnesses to be cross examined about these issues.

19. Furthermore, given both parties are legally represented and have engaged expert witnesses the Court will be provided with meaningful assistance and it is not necessary to grant leave for Mr Smith to appear as amicus curiae.

20. Mr Smith is welcome to attend the onsite view and make a submission to the Court on these issues that concern him and observe the hearing as an objector.

21. The orders of the Court are:

1. That the motion is dismissed.

S Froh

Registrar of the Court

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Decision last updated: 09 October 2023