Griffin v North Sydney Council

[2010] NSWLEC 1095

Land and Environment Court

of New South Wales

CITATION:

Griffin v North Sydney Council [2010] NSWLEC 1095

PARTIES:

APPLICANTS ON NOTICE OF MOTION
P Cadwallader
and
M Chesney

APPLICANT
J Griffin

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10932 of 2009

CORAM:

Moore SC

KEY ISSUES:

PRACTICE AND PROCEDURE :- Notice of Motion - Joinder

LEGISLATION CITED:

Land and Environment Court Act 1979

DATES OF HEARING:

12 March 2010

EX TEMPORE JUDGMENT DATE:

12 March 2010

LEGAL REPRESENTATIVES:

APPLICANTS ON NOTICE OF MOTION
Ms A Pearman (barrister)
INSTRUCTED BY
Aubrey F Crawley & Co

APPLICANT
Mr M Staunton (barrister)
INSTRUCTED BY
Redmond Hale Simpson

RESPONDENT
Ms K Gerathy (solicitor)
SOLICITOR
HWL Ebsworth

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

12 March 2010

10932 of 2009 Griffin v North Sydney Council

JUDGMENT

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

1 SENIOR COMMISSIONER:

This is a notice of motion that seeks to have two persons joined as participants in the proceedings pursuant to s 39A of the Land and Environment Court Act 1979. The motion seeks, firstly, that Mr Cadwallader be joined and, secondly, that Mr Chesney be joined as parties to these proceedings.

2 This decision concerns the application made on behalf of Mr Cadwallader. There are two areas where it is said in support of his application that the test posed by s 39A(a) is satisfied – that is that there is an issue or issues that would not be likely to be sufficiently addressed if the person were not joined as a party.

3 I have in evidence, attached to an annexure of Mr Tsathas of 11 March 2010, an email from Professor McKay - one of the two experts - proposed to be called to give evidence on behalf of the Mr Cadwallader, if he is joined. That sets out matters that are pleaded in the council's case that are not addressed by the council's expert's statement of evidence.

4 I am satisfied that there are four such matters. One of which may be a minor error, but three of them are of potential significance, not appropriate that I express any opinion as to the strength of the evidence, merely that I am satisfied that there are three topics that are pleaded by the council in the particulars contained in the statement of claim of facts and contentions that I accept that Professor McKay identifies as not being covered.

5 I also have a letter tendered on the motion being a letter of 15 October 2009 from Mr Juradowich, town planner, retained by Mr Cadwallader. That identifies six points said not be addressed by the statement of evidence of Mr Groundwater, the council's expert, giving evidence on town planning matters in the proceedings.

6 My brief examination of Mr Groundwater's statement of evidence would appear to indicate, again without expressing any view on the merits or otherwise of the matters noted on Mr Juradowich’s letter, that there are topics not canvassed by Mr Groundwater but are relevant to the matters placed in contention by the council. Also that the council consents to Mr Cadwallader being joined as a party.

7 I am satisfied that the combination of matters that would be covered by Mr McKay and Mr Juradowich are such that they not only meet the test in the first limb of s 39A but are also sufficiently potentially determinative as to warrant them being agitated in the hearing.

8 I therefore consider that it is appropriate to permit Mr Cadwallader to be joined as a party pursuant to s 39A.

9 Those matters that are encompassed by the heritage basis upon which Mr Cadwallader has been permitted to be joined under s 39A are identical to those that supported Mr Chesney’s application for joinder. As Mr Cadwallader is in for all purposes (including those heritage purposes) there is no item of that nature (that is of a heritage nature) that would satisfy the test of 39A(a) with respect to Mr Chesney’s application.

10 I also am satisfied that there is no independent evidence that there are any town planning issues, there being no material from Mr Janowich tendered on the motion, that relate to Mr Chesney's residence. There is also contained in the statement of Mr Groundwater, the planner to give evidence on behalf of the council, extensive consideration of impacts on Mr Chesney's property. I therefore consider that there is no town planning basis upon which I could satisfy the test in 39A(a). I therefore decline to join Mr Chesney as a party.

11 A similar position applies with respect to what is known in shorthand as a "Double Bay Marina” joinder. If there is no independent basis upon which Mr Chesney should be given any status more elevated than that of an objector who will be heard on the course of the onsite evidence with, if necessary, further evidence to be given by him in court that element of the motion is therefore dismissed pursuant both to s 39A and s 38 of the Court Act.

Tim Moore
Senior Commissioner