CSR Ltd v Fairfield City Council - [2001] NSWLEC 118

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
CSR Ltd
RESPONDENTS
Fairfield City Council and Anor

FILE 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 9

CASES 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 80

DATES OF HEARING: 30/05/2001

DATE OF JUDGMENT:
06/08/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr T S Hale SC
SOLICITORS
Minter Ellison
FIRST RESPONDENT
Mr S B Willis (Solicitor)
SOLICITORS
Marsdens
SECOND RESPONDENT
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

CSR LTD

Applicant

FAIRFIELD CITY COUNCIL

First Respondent

JACFIN PTY LTD

Second Respondent

JUDGMENT

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”;

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”;
3. An order to set aside a subpoena dated 23 April 2001 and addressed to CSR.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 118
Decision Date: 06/08/2001

CaseChat Overview and Summary

The case of CSR Ltd v Fairfield City Council involves a dispute concerning a development application for quarrying, landfilling, and site restoration on a specific site in Horsley Park. CSR Ltd, the applicant, sought an extension of the lapsing period for development consent under the Environmental Planning and Assessment Act 1979. Jacfin Pty Ltd, an adjoining landowner, was joined as a party to the proceedings and raised several merit issues regarding the applicant's compliance with the deferred commencement condition. CSR Ltd filed two notices of motion, seeking the removal of Jacfin as a party and the striking out of the merit issues raised by Jacfin. The court had to decide whether Jacfin was properly joined as a party and whether the merit issues raised by Jacfin were relevant to the proceedings.

The court held that Jacfin was properly joined as a party, as it had a direct interest in ensuring that the development consent acquired by CSR Ltd did not operate in circumstances where the deferred commencement condition remained unfulfilled. Jacfin's interest arose from its position as an objector to the original development application and its participation in the earlier proceedings before Lloyd J. The court also held that it was inappropriate to strike out the merit issues raised by Jacfin at that stage of the proceedings, as the relevance of those issues should be determined when a hearing had taken place and evidence had been furnished. The notices of motion concerning the joinder issue and the merits issue were dismissed, and the subpoena-related notice of motion was also dismissed as it was withdrawn.

The final orders of the court were as follows: (1) the two notices of motion relating to the joinder issue and the merits issue were dismissed; (2) the notice of motion relating to the subpoena was dismissed; and (3) the exhibits were to be returned with no order as to costs.

Orders