Garrard Building Pty Ltd v Clarence Valley Council

[2025] NSWLEC 100

Land and Environment Court

New South Wales

Medium Neutral Citation:

Garrard Building Pty Ltd v Clarence Valley Council [2025] NSWLEC 100

Hearing dates:

4 August 2025

Date of orders:

4 August 2025

Decision date:

04 August 2025

Jurisdiction:

Class 1

Before:

Pain J

Decision:

(1)   The notice of motion dated 1 August 2025 is dismissed.

(2)   No order for costs.

Catchwords:

PRACTICE AND PROCEDURE – application for joinder as party in Class 1 appeal by objector refused

Legislation Cited:

Clarence Valley Local Environmental Plan2011 (NSW)

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.15

Land and Environment Court Act 1979 (NSW), s 38

Uniform Civil Procedure Rules 2005 (NSW), r 6.24

Category:

Procedural rulings

Parties:

Garrard Building Pty Ltd (Applicant)
Clarence Valley Council (Respondent)
Craigh McNeill (Objector)

Representation:

Counsel:
M Sonter, solicitor (Applicant)
A Seton, solicitor (Respondent)
C McNeill (Self Represented) (Objector)

Solicitors:
Mills Oakley (Applicant)
Marsdens (Respondent)

File Number(s):

2024/279190

ex tempore JUDGMENT

1. A Class 1 appeal by the Applicant following refusal of a development application (DA) for a large subdivision on land in Miles Street Yamba. The matter is set down for hearing on 5, 6, and 7 August 2025 before a Commissioner.

2. A third-party objector Mr McNeill filed a notice of motion dated 1 August 2025 and supporting affidavit sworn by him dated 30 July 2025 seeking various orders. I am hearing this urgently as duty judge. The motion is opposed by the Applicant. The Council did not consent or oppose the motion.

3. In the course of the hearing Mr McNeill clarified that he seeks to be joined as a party under s 8.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and alternatively as a necessary party under r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rather than a ‘double bay marina’ order under s 38(2) of the Land and Environment Court Act 1979 (NSW) as the notice of motion stated. Various other orders are sought in terms of how he wished to participate. These only arise if the order for joinder as a party is made. Order 7 seeking a remediation order is beyond the power of the Court in a Class 1 appeal in any event.

4. Mr McNeill’s affidavit was objected to in that he purported to provide his opinion on matters that are generally the subject of expert hydrological evidence, a valid objection to large parts of the affidavit. His affidavit was read subject to weight being attributed to it given this significant limitation in accepting what Mr McNeill gives an opinion about. He accepts he is a lay person providing his opinion and states that his experience is unique as a longstanding resident of the area close to the development site. Mr McNeill’s affidavit identifies his extensive interactions with the Council in relation to flood modelling generally and in relation to the specific DA site in Yamba. He is concerned about the flooding impacts of what is proposed on the local area. Information he seeks to place before the court includes his interactions with the Council about flooding, a New South Wales Civil and Administrative Tribunal (NCAT) appeal seeking information about flood modelling data from the Council, various documents which he has authored about flooding matters in Yamba, and according to Mr McNeill an enlarged government information survey plan he wishes to make oral submissions about.

5. An affidavit of Ms Alder solicitor filed 4 August 2025 was read by the Applicant which set out processes undertaken by the Council in the proceedings including informing objectors of opportunities to participate, and that Mr McNeill applied to participate at the s 34 conference as one of six objectors where Mr McNeill presented his opinions. Mr McNeill is one of six objectors identified by the Council who will present to the Commissioner at the hearing.

6. Mr McNeill’s information of some 500 pages had been included in the Council’s tender bundle of documents that it intends to provide to the Commissioner.

7. In the amended statement of facts and contentions the first issue identified as a basis for refusal is flooding impacts including that the proposed DA does not satisfy the jurisdictional requirements in the Clarence Valley Local Environmental Plan2011 (NSW) concerning flood impacts including because of off-site impacts, and in relation to the inadequacy of the evacuation route(s) available. Both parties called expert hydrologists to address the contentions at the contested hearing commencing tomorrow.

8. Mr McNeill submits that he does not agree with the Council’s flood modelling, the Council has withheld data from the public about flood risk and wishes to cross-examine the hydrologists about that. He is concerned about the off-site impacts of the DA site including fill already placed on the land and seeks to provide his opinion in the areas he identifies in his affidavit to assist the Court. He is also concerned about the evacuation plan as being inadequate.

Finding

9. Requirements of s 8.15 of the LEC Act must be satisfied in order for joinder as a party. Mr McNeill relies on his lay opinion as a longstanding resident close to the site to support his application that he be allowed to give his unique view of the Council’s flood modelling and its impacts, both generally and as it relates to the DA site. Mr McNeill seeks to give lay opinion evidence on matters usually the subject of expert evidence. Expert evidence called must comply with the UCPR requirements for expert evidence. Both parties are calling well regarded hydrological experts to give that expert evidence. These are not matters where it is obvious that a lay opinion can assist the Court no matter how well informed in the view of the resident.

10. That Mr McNeill is unhappy with the Council’s flood model is irrelevant to this application in that he provides no expert evidence to support that view.

11. Mr McNeill has been able to participate to date in the appeal, having objected in the development assessment process, presented at the s 34 conference and will do so before the Court at the appeal hearing. Much of the material presented in his affidavit in support of this notice of motion is already part of the Council’s tender bundle to be provided to the Commissioner, which are matters to which regard must be had under s 4.15(1)(d) of the EPA Act.

12. That Mr McNeill has sought information about the flood modelling through NCAT and has written to the Council expressing concern about its flood modelling and its application generally is irrelevant to this application.

13. I do not consider that I should exercise the discretion I have under s 8.15(2)(a) to join Mr McNeill because a matter will not be sufficiently addressed if he is not joined. Nor under s 8.15(2)(b) is it in the interests of justice or the public interest to be joined as a party given the opportunities he has been afforded to participate.

14. Mr McNeill is not a necessary party for the purposes of r 6.24 of the UCPR. It follows that the other orders one to six will not be made. I have already identified that order seven was beyond the power of the Court to make.

Orders

15. The Court orders:

1. The notice of motion dated 1 August 2025 is dismissed.

2. No order for costs

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Decision last updated: 23 September 2025