CSR Ltd v Fairfield City Council
[2001] NSWLEC 118
•06/08/2001
Reported Decision: 115 LGERA 361
Land and Environment Court
of New South Wales
CITATION: CSR Ltd v Fairfield City Council and Anor [2001] NSWLEC 118 PARTIES: APPLICANT
RESPONDENTS
CSR Ltd
Fairfield City Council and AnorFILE NUMBER(S): 10079 of 2001 CORAM: Pearlman J KEY ISSUES: Practice & Procedure :- joinder - removal of party - strike out of merit issues LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 95A
Land and Environment Court Act 1979 s 22, s 38
Supreme Court Rules 1970 pt 8 r 8, pt 8 r 9CASES CITED: Chriss v Williams & Anor (Hope JA, NSWCA, 20 May 1988, unreported);
Derodo Pty Ltd v Ku-ring-gai Municipal Council (1992) 77 LGERA 1;
Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313;
Green v Kogarah Municipal Council (1998) 99 LGERA 24;
Monier PGH Holdings Ltd v Fairfield City Council and Anor (Lloyd J, NSWLEC, 20 October 1998, unreported);
News Ltd & Ors v Australian Rugby Football League Ltd & Ors (1996) 64 FCR 410;
Pegang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52;
Re Great Eastern Cleaning Services Pty Ltd and the Companies Act (1978) 2 NSWLR 278;
Tweed Shire Council v Minister Administering the Crown Lands Act & Anor (1996) 92 LGERA 80DATES OF HEARING: 30/05/2001 DATE OF JUDGMENT:
06/08/2001LEGAL REPRESENTATIVES:
APPLICANT
Mr T S Hale SC
SOLICITORS
Minter EllisonFIRST RESPONDENT
SECOND RESPONDENT
Mr S B Willis (Solicitor)
SOLICITORS
Marsdens
Mr M H Tobias QC with Ms S A Duggan (Barrister)
SOLICITORS
Kirkby & Associates
JUDGMENT:
IN THE LAND AND 10079 of 2001
ENVIRONMENT COURT
Pearlman J
OF NEW SOUTH WALES 8 June 2001
- Applicant
- First Respondent
- Second Respondent
Introduction
1. In these class 1 proceedings, the applicant, CSR Ltd (“CSR”), has filed three notices of motion respectively seeking the following orders:
1. An order pursuant to pt 8 r 9 of the Supreme Court Rules 1970 that the second respondent, Jacfin Pty Ltd (“Jacfin”), shall cease to be a party to the proceedings. I will refer to this notice of motion as “the joinder issue”;
3. An order to set aside a subpoena dated 23 April 2001 and addressed to CSR.2. An order that the merit issues raised by Jacfin in its statement of issues and set out in pars 1(a) - 1(j) be struck out. I will refer to this notice of motion as “the merits issue”;
2. During the course of the hearing, the last of the notices of motion, concerning the subpoena, was withdrawn (because the subpoena was withdrawn) and the hearing proceeded solely on the joinder issue and the merits issue.
3. The first respondent, Fairfield City Council (“the council”), announced that it neither supported nor opposed any of the notices of motion.
Background
4. In 1997, a development application was made for the continuation of quarrying, landfilling and site restoration on lot 80 in DP 106143, Old Wallgrove Road and Burley Road, Horsley Park (“the site”). The proposed development was designated development under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and Jacfin, which owns adjoining land, was an objector to the development application.
5. An appeal was instituted in this Court against the council’s deemed refusal of the development application, and Jacfin was joined as a party to the appeal.
6. In a judgment dated 20 October 1998 (Monier PGH Holdings Ltd v Fairfield City Council and Anor, NSWLEC, unreported) Lloyd J granted development consent to the proposed development subject to conditions, included amongst which was a deferred commencement condition. It relevantly provided as follows:
A. Deferred Commencement
This consent is granted pursuant to s 91AA of the Environmental Planning & Assessment Act 1979 and shall not be operative until the applicant complies with the matters in sub-paragraphs 1,2 and 3 hereof to the satisfaction of the Council and the Environment Protection Authority.
2. The LCP must be submitted for approval by the Council in consultation with the EPA within six months of the date of consent and shall include: (here followed a number of specific requirements);1. The applicant shall investigate the condition of the completed landfill in the south western corner of the site. This will involve the preparation of a landfill closure plan (“LCP”) in accordance with the NSW EPA’s Environmental Guidelines for Solid Waste Landfills.
3. This consent will not be operative until the LCP has been approved by the Council in consultation with the EPA and any remedial works identified in the approved LCP in respect of the former Camide Landfill area on the site have been carried out and completed to the satisfaction of the EPA and Council.
B. In the event that all the requirements set out in the deferred commencement condition, paragraph A above, are not completed within two years from the date of this consent, then the consent shall lapse and become inoperative.
7. On 18 October 2000, CSR applied to the council (“the current application”) seeking an extension of the lapsing period set out in condition B. (It was stated in the current application that, at the time when the initial development application was lodged, Monier PGH Holdings Ltd was a fully owned subsidiary of CSR). The current application was based upon s 95A of the EP&A Act, which relevantly provides as follows:
95A(1) If, in granting a development consent, the consent authority reduces the period after which the consent lapses to less than 5 years, the applicant or any other person entitled to act on the consent may apply to the consent authority, before the period expires, for an extension of 1 year.
(2) The consent authority may grant the extension if satisfied that the applicant has shown good cause.
8. CSR’s stance is that it has fulfilled all its obligations under the deferred commencement condition, but one outstanding matter remains, which is the satisfaction of the council and the EPA required under condition A(3).
9. On 29 January 2001, CSR instituted this class 1 appeal upon the deemed refusal of the council to grant consent to the current application.
10. On 13 March 2001, by consent, the Court ordered that Jacfin be joined as a party to these proceedings.
11. The only issues raised by the council in its statement of issues at this point are a number of preliminary questions of law. In summary, those questions are whether the period of two years is able to be extended under s 95A; if so, whether the council is the consent authority to whom application for extension must be made; whether, if s 95A is not available, the period could be extended by way of modification under s 96; and whether the development consent has lapsed. A hearing on these issues has been set down for 12 July 2001.
12. In a statement of issues filed on 28 March 2001, Jacfin raised preliminary questions of law in terms almost identical to those raised by the council, but it also raised a number of merit issues as follows:
1. Has the applicant shown good cause for the extension of the period of lapsing of the development consent having regard to, in particular:
(a) the applicant’s failure to comply substantially with the terms of the approved LCP;
(b) the adequacy of the LCP to provide adequate protection to the environment and in particular the adjoining land owned by the second respondent;
(c) the existence on the site of putrescible and hazardous material in the Camide landfill contrary to the provisions of the Fairfield LEP;
(d) the existence on the site of putrescible and hazardous material in the Camide landfill contrary to the assumptions made by the applicant at the time the development consent was granted;
(e) the continued and unabated migration of pollutant from the subject site to the land owned by the second respondent;
(f) the Applicant’s failure to prepare and implement a Landfill Gas Management Contingency Plan;
(g) the Applicant’s failure to prepare and implement a Groundwater Contamination Remediation Plan;
(h) the Applicant’s failure to prepare and implement a Surface Water Contamination Plan;
(j) the risk to life and property as a consequence of the applicant’s failure to properly treat the existing landfill material in the Camide landfill site.(i) the importation on to the site of further unauthorised land fill which now comprises an earth berm adjacent to the second respondent’s boundary;
The joinder issue
The statutory background and CSR’s claim
13. It is not in dispute that Jacfin was joined as a party to these proceedings pursuant to pt 8 r 8(1)(b) of the Supreme Court Rules 1970 (the whole of pt 8 applies in this Court by virtue of pt 6 r 1 of the Land and Environment Court Rules 1996). Part 8 r 8(1) provides as follows:
8(1) Where a person who is not a party -
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon,
the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceedings.
14. A party so joined may, however, be removed under pt 8 r 9, which provides as follows:
9 Where a party -
(a) has been improperly or unnecessarily joined; or
(b) has ceased to be a proper or necessary party,
the Court, on application by any party or of its own motion, may order that he cease to be a party and make orders for the further conduct of the proceedings.
15. CSR claims that, despite its consent to the Court’s order, Jacfin was “improperly or unnecessarily” joined, because the joinder of Jacfin was not “necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon …”. In that context, the competing arguments of CSR and Jacfin may be summarised.
CSR’s argument
16. Mr Hale SC, appearing for CSR, submitted that the test to be applied, in determining if the joinder of Jacfin was “necessary” in the terms set out in pt 8 r 8(1)(b), is whether or not its rights or liabilities will be directly affected. He relied upon the following passage relating to a precursor to a rule similar to pt 8 r 8 in the judgment of Lord Diplock in Pegang Mining Co Ltd v Choong Sam (1969) 2 MLJ 52 at 55 - 56, which was quoted with approval by the Full Court of the Federal Court in News Ltd & Ors v Australian Rugby Football League Ltd & Ors (1996) 64 FCR 410 at 524:
A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?
17. In this case, said Mr Hale, no rights or liabilities of Jacfin will be so affected. It has no legal right or entitlement to be joined, and in this appeal under s 95A, it does not have a third party right of the kind which it availed itself of when it was joined as a party to the proceedings before Lloyd J. It is not sufficient, in the light of this test, that its amenity as a neighbour may be affected.
18. Furthermore, these proceedings are “a gladiatorial combat between two contestants … [and] nobody else” as Meagher JA said of proceedings between a local aboriginal land council and the Minister under the Aboriginal Land Rights Act 1983 (Tweed Shire Council v Minister Administering the Crown Lands Act & Anor (1996) 92 LGERA 80 at 83). Mr Hale said that s 95A contemplates that the applicant for an extension will show good cause, and the consent authority will consider if it is satisfied that good cause is shown. No other party could have any relevant interest.
19. Mr Hale also submitted that, if the joinder of Jacfin was permitted to continue, then the proceedings would widen into an inquiry as to whether and on what conditions the development consent ought to have been granted. These are not matters which arise under s 95A. Even if matters concerning the preservation of Jacfin’s amenity as a neighbour were relevant matters, it would be wrong to assume that such matters would not be brought to the Court’s attention in the absence of Jacfin being joined as a party.
Jacfin’s argument
20. Mr Tobias QC, appearing for Jacfin, put his argument on alternative bases. First, he submitted that, in circumstances where CSR had consented to the joinder of Jacfin and the order for joinder had been made, it is appropriate to assume that the conditions for joinder required under pt 8 r 8(1)(b) had been satisfied. It would not be appropriate to remove Jacfin unless there had been a change of circumstances which would warrant its removal, and CSR had not shown any change of circumstances. In addition to that matter, the Court should take into account that over two months has passed since the order joining Jacfin was made, that Jacfin has participated in the proceedings to some extent, and that Jacfin would be prejudiced if it were to cease being joined because the merit issues it raises would not be ventilated.
21. In the alternative, Mr Tobias submitted that the test for joinder under pt 8 r 8(1)(b) is not as put on behalf of CSR. Proceedings before this Court are not usually proceedings where private rights and liabilities are specifically in issue. Rather they are proceedings in which the Court is concerned with development, and the impacts of development, as well as questions of protection of amenity and of the environment generally. The proper test is set out in pt 8 r 8(1)(b) itself - that is, whether it is “necessary” for the party to be joined so as to determine all matters in dispute.
22. Nor, in Mr Tobias’s submission, are the proceedings confined by the statute to two parties only. There are wider interests and many planning factors are relevant to the exercise of discretion under s 95A (see Green v Kogarah Municipal Council (1998) 99 LGERA 24 and Derodo Pty Ltd v Ku-ring-gai Municipal Council (1992) 77 LGERA 1).
23. Mr Tobias submitted that, insofar as it is necessary to demonstrate some right or entitlement of Jacfin to be joined under pt 8 r 8(1)(b), the following factors should be taken into account:
(a) the deferred commencement conditions were imposed for the benefit of Jacfin, it being the owner of land to the west adjoining the Camide site (see the judgment of Lloyd J pars 27 and 28);
(b) Jacfin would be entitled to bring class 4 proceedings alleging breaches by CSR of the conditions of the development consent, but the ventilation of that allegation in these proceedings would avoid a multiplicity of issues, which conforms to the requirements of s 22 of the Land and Environment Court Act 1979;
(d) it is clear, from the statement of issues filed by the council, that, absent Jacfin, no merit issues would be raised. It is relevant to note that Jacfin does not seek to challenge the correctness of the grant of development consent, but seeks to point out those respects in which the deferred commencement condition remains unfulfilled, being matters which it claims are much more extensive than simply the satisfaction of the council and the EPA under condition A(3).(c) these proceedings are to all intents and purposes an “extension” of the initial class 1 appeal to which Jacfin was entitled to be, and was, joined as a third party objector, and in this context, it may be said that Jacfin is protecting a legal right;
Should the joinder of Jacfin cease?
24. It seems to me that the proper approach to this question is to return to consider the basis for the joinder of Jacfin under pt 8 r 8. That follows from the wording of pt 8 r 9(a), which applies where a party “has been improperly or unnecessarily joined”. Part 8 r 9(a) is predicated upon joinder having been ordered, and it requires an inquiry into whether the joinder was proper or necessary in the circumstances then arising.
25. There are several factors which, in my opinion, support a conclusion that the joinder of Jacfin under pt 8 r 8(1)(b) was “necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon”.
26. These factors arise principally from Jacfin’s position in the original class 1 proceedings. It was joined as a party to those proceedings no doubt because of the statutory rights conferred upon it as an objector to a development application for designated development. As an objector, it would have been entitled to appeal to the Court in its own right if it was dissatisfied with the determination of the consent authority to grant consent to the development application (s 98 EP&A Act), and such an appeal would have been heard together with any appeal made by the applicant for development consent (s 99(1)).
27. Not only did Jacfin participate fully in the hearing before Lloyd J (it was represented by a solicitor), but the deferred commencement condition, although proposed by the council (see par 30 of the judgment), appears to have been imposed either wholly or in part to protect Jacfin’s amenity as an adjoining neighbour. That may be deduced, first, from the finding in par 11 of the judgment of Lloyd J that Jacfin “owns a large parcel of land adjacent to the western boundary and part of the southern boundary of the subject site”, and, secondly, from pars 27, 28 and 29 of that judgment, in which his Honour found that rehabilitation of the Camide site by means of the works described in the deferred commencement condition was necessary “in order to provide a satisfactory visual barrier between the adjoining land to the west and the final stage of landfilling”.
28. The effect of a deferred commencement condition is, as its name implies and as s 80(3) of the EP&A Act states, that a development consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition. In other words, the applicant will forgo the benefit of the development consent unless that matter is satisfied. Jacfin has, in these circumstances, a direct interest, as an objector to designated development and as the party for whose benefit the deferred commencement condition was, at least in part, imposed, in ensuring that the development consent acquired by CSR does not operate in circumstances where the deferred commencement condition remains unfulfilled. In this case, Jacfin alleges that several parts of the deferred commencement condition remain unfulfilled. It therefore has a direct interest in ventilating its claims in the assessment of whether or not good cause has been shown for an extension of the lapsing period, and whether or not the Court should exercise its discretion to grant that extension.
29. The merit issue raised in these proceedings by Jacfin are based on its claim that, contrary to the assertion by CSR that the approval of the council and the EPA are the only outstanding matters arising from the deferred commencement condition, there are many aspects in which that condition remains unfulfilled. But the merit issues may not be ventilated if it ceases to be joined as a party. I say “may” because there is no evidence that the council never intends to raise merit issues - it is simply that the council has up till now raised only legal issues, and has not raised any merit issues. Such a factor was persuasive in the case put before Needham J in Re Great Eastern Cleaning Services Pty Ltd and the Companies Act (1978) 2 NSWLR 278, where his Honour said, at 281:
It seems to me that the Commissioner is in a position to put before the Court matters which could be relevant to the exercise of the discretion. There is no one else who has been shown to have any interest in putting forward such matters.
30. All these factors take on a particular resonance in proceedings in this Court. As Hope JA said in Chriss v Williams & Anor (NSWCA, 20 May 1988, unreported) at pp 3 and 4, in connection with an application for a stay of proceedings in this Court pending an appeal:
Part 8 r 8 is not to be applied in the Land and Environment Court necessarily in the same way as it would be applied in this Court. It is to be applied with such adaptations as may be necessary. In this regard it is relevant to appreciate that in the Land and Environment Court matters of public law are commonly involved and not matters of private law as are commonly involved in the Supreme Court.
31. It is for this reason that considerable care should be taken in applying the English and Australian authorities which deal with rules such as pt 8 r 8 or their precursors, and thus it may be that the test propounded by Lord Diplock in the passage I have quoted in par 16 will not be of universal application, at least in this Court.
32. I do not think that these proceedings are solely a “two-party” combat, limited to CSR and the consent authority alone. The fact that an objector may appeal as of right under s 98 in respect of a development application for designated development, and the fact that the Court on appeal is empowered, under s 38(2) of the Land and Environment Court Act 1979, to inform itself on any matter as it thinks appropriate in class 1 proceedings, lead to a contrary conclusion. For this reason, and taking into account that Meagher JA was addressing a different statutory scheme, I consider that the decision in Tweed Shire Council v the Minister must be distinguished, and is not authority for the proposition that only CSR and the council have an interest in the proceedings so that the joinder of Jacfin could not be “necessary”.
33. In summary, I have concluded that Jacfin has a direct interest in the matter in dispute in these proceedings. That interest arises from the circumstances, namely, that Jacfin was an objector to the original development application, that it was joined as a party to the original class 1 proceedings before Lloyd J, that it participated in those proceedings, that the deferred commencement condition was imposed at least partly as a consequence of its participation, and that the deferred commencement condition forms the subject matter of these proceedings. Jacfin’s interest does not arise simply because it is a neighbour concerned about its amenity. If that was the only basis for its interest, then its concerns could no doubt be taken into account under s 38(2) of the Land and Environment Court Act in a manner similar to that which occurred in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313.
34. In coming to this conclusion, I have taken into account the fact that the joinder of Jacfin was ordered by consent of the parties, but I do not think that this fact is determinative of the question as to whether or not Jacfin should cease to be joined. As I have explained, pt 8 r 9 requires an inquiry as to whether the joinder was proper or necessary in the circumstances arising at the time when the joinder was ordered, and the fact that the parties consented to it at that time is, in my opinion, merely a factor amongst others to be considered.
35. I should add, in deference to the alternative argument put by Mr Tobias, that I do not think it is necessary to show that circumstances have changed since the order for the joinder of Jacfin was made. It is clear, I think, that the removal of parties may be ordered under either pt 8 r 9(a) or pt 8 r 9(b). It is only regard to r 9(b), which refers to a party having “ceased to be a proper or necessary party”, that changed circumstances must necessarily arise for consideration. There may conceivably be cases of removal under pt 8 r 9(a) where changed circumstances may be relevant, but this is not such a case.
36. For all these reasons, I decline to order that the joinder of Jacfin cease, and as a consequence the notice of motion should be dismissed.
The merits issue
37. As I have earlier indicated, these proceedings are an appeal from the council’s deemed refusal to grant an extension of the lapsing period under s 95A(2). It is useful to repeat the terms of that subsection as follows:
95A(2) The consent authority may grant the extension if it is satisfied that the applicant has shown good cause.
38. CSR claims that the merit issues raised by Jacfin (see par 12 above) should be struck out as irrelevant to these proceedings, which relate only to s 95A. Mr Hale amplified this claim by submitting that the only issue which arises is whether or not CSR has shown “good cause” as required by s 95A(2). In Mr Hale’s submission, s 95A(2) does not involve an exercise of discretion, although it does involve an exercise of judgment as to whether good cause has been shown. Since good cause is the only matter that must be determined, there is no place for merit assessment, and in particular, there is no place for a challenge to the LCP or a reconsideration of whether development consent should have been granted in the first place.
39. I cannot accept Mr Hale’s submission as to the proper construction of s 95A(2). It seems to me that s 95A(2) requires three things. Firstly, the applicant for extension must endeavour to show good cause. Secondly, the consent authority must be satisfied that the applicant has shown good cause. Thirdly, after good cause has been shown and the consent authority has been satisfied that it has, then the consent authority must embark upon an exercise of discretion - it may grant the extension. I take the view that the scope and purpose of the EP&A Act as a whole supports the conclusion that the consent authority has a general discretion under s 95A(2) quite apart from being satisfied that good cause has been shown. There are many and varied considerations which underpin the grant of development consent and the imposition of conditions (see s 79C of the EP&A Act) and the imposition of a deferred commencement condition under s 80(3). These considerations seem to me to be equally applicable to an application for an extension of the lapsing period under s 95A(2) (cf Green v Kogarah Municipal Council pp 27 and 28).
40. It would not be appropriate to limit the scope of so wide an expression as “show good cause” (see Derodo Pty Ltd v Ku-ring-gai Municipal Council at pp 6 - 7) nor would it be appropriate to define the limits of the discretion vested in the council to grant or refuse an extension under s 95A (see Green v Kogarah Municipal Council at p 27). But two things are clear from the cases I have just cited. Firstly, the considerations which a council should take into account in exercising its discretion as to whether to grant an extension are planning considerations (see Green v Kogarah Municipal Council at p 28). Secondly, the exercise of the discretion under s 95A does not involve a re-consideration as to whether or not the development consent should have been granted in the first place (see Green v Kogarah Municipal Council at p 29). However, it would seem to me that considerations as to whether or to what extent the deferred commencement condition has been complied with are, on the face of it, relevant to each of the three things which arise in an application of s 95A(2).
41. CSR tendered the LCP and a Construction Certificate Report relating to the remedial works which it has carried out on the site. Mr Tobias took the Court to a number of parts of each of those documents in an effort to demonstrate that each of the merit issues raised by Jacfin arises from material disclosed in those documents. From that exercise, I am prepared to accept that Jacfin does not seek a re-determination of the grant of development consent, and I am also prepared to accept that each of the merit issues involves planning considerations. However, I do not think it is appropriate at this stage of the proceedings to embark upon a determination of the relevance of any of those merit issues in the appeal. That is a task which the Court should, in my opinion, undertake only when a hearing has taken place and evidence has been furnished. The determination of the relevance of issues is not done in a vacuum; it is carried out having regard to the evidence adduced in the case.
42. For these reasons, I decline to strike out the merit issues raised by Jacfin and this notice of motion should be dismissed.
Orders
43. In accordance with the foregoing, the notices of motion which relate to the joinder issue and the merits issue will be dismissed. Since the notice of motion which related to the subpoena was withdrawn, it is also appropriate formally to dismiss that notice of motion as well.
44. My formal orders are therefore as follows:
(1) The two notices of motion returnable on 11 May 2001, which seek respectively orders as to the cessation of the joinder of the second respondent and orders as to the striking out of the merit issues raised by the second respondent, are each dismissed.
(2) The notice of motion returnable on 9 May 2001, which seeks the setting aside of a subpoena for production addressed to the proper officer, CSR Limited, is dismissed.
(3) The exhibits may be returned.
I make no order as to costs.
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