Ikhtiar v Campbelltown City Council

[2006] NSWLEC 704

Land and Environment Court

of New South Wales

CITATION:

Ikhtiar v Campbelltown City Council [2006] NSWLEC 704
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Kamran Ikhtiar

RESPONDENT
Campbelltown City Council

FILE NUMBER(S):

10414 of 2006

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Application for joinder

LEGISLATION CITED:

Land and Environment Court Act 1979 s 39A

DATES OF HEARING:

26 October 2006

EX TEMPORE JUDGMENT DATE:

10/26/2006

LEGAL REPRESENTATIVES:

APPLICANT ON MOTION
Mr A Perkins, solicitor
Colin Biggers & Paisley

FIRST RESPONDENT ON THE MOTION
Mr Ikhtiar

SECOND RESPONDENT ON THE MOTION
Mr D Baird, solicitor
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

26 October 2006

06/10414 Kamran Ikhtiar v Campbelltown City Council

JUDGMENT

1. COMMISSIONER: This is a notice of motion on behalf of Mr Robert Heanes of 13 Fitzroy Crescent, Campbelltown, making an application pursuant to s 39A(a) of the Land and Environment Court Act 1979 (the Court Act) to be joined as a party in proceedings between Mr Ikhtiar and Campbelltown City Council (the council) concerning a proposed child care centre at 23 Fitzroy Crescent, Leumeah (the site).

2. In the Statement of Issues in the proceedings filed on 26 June, the council raised a number of issues which were considered by two Court-appointed experts.

3. Effectively, those issues related to traffic and noise and were pleaded as Issues 1, 2 and 3 of the Statement of Issues which statement contained a list of six issues.

4. As a consequence of evidence that was taken on the site and the Statements of Evidence from Mr Hazell, the Court-appointed traffic expert, and Mr Marsten, the Court-appointed noise expert, there is no disagreement on those issues between Mr Ikhtiar and the council in the substantive proceedings.

5. Mr Heanes seeks leave of the Court to bring evidence from two experts, Mr Haskew and Mr Winning with respect to traffic and traffic related pedestrian interface issues. He does so as the council no longer acts as a contradictor or the traffic issue and this is an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if Mr Heanes were not joined as a party.

6. Mr Heanes does not seek leave to agitate the issues of noise nor, as I understand it, with respect to Issue 4 of the Statement of Issues relating to planning matters.

7. As there would otherwise be no substantive contradictor before the Court with respect to the traffic and related issues, I am satisfied that it would be appropriate to permit Mr Heanes to be joined and thus enabled to bring evidence and participate in the proceedings concerning that issue.

8. In reaching that conclusion, I have noted an undertaking given by Mr Heanes through Mr Perkins, Mr Heanes’ solicitor, that any additional costs of participation in the proceedings by Mr Hazell, the Court-appointed traffic expert, will be met by Mr Heanes.

9. As a consequence, I propose to grant Mr Heanes joinder in the proceedings as second respondent, pursuant to s 39A(a) of the Court Act, and I therefore give the following directions:-

1. The second respondent is to file and serve the statements of evidence of Mr Haskew and Mr Winning by the close of business on 27 October;
2. That the second respondent is to contact Mr Hazell and inform him of the second respondent’s status in the proceedings and to provide a copy of the statements in Direction 1 with that also to occur by the close of business on 27 October;
3. Messrs Haskew, Winning and Hazell are directed to confer and file and serve a joint report by close of business on 10 November;
4. Leave to approach the Registrar forthwith for a single hearing date on or after 20 November; and
5. Liberty to re-list on two days notice if required.

Commissioner of the Court

02/02/2007 - Punctuation - Paragraph(s) 9