Jon Garling v Northern Beaches Council - [2022] NSWLEC 102

Land and Environment Court

New South Wales

Medium Neutral Citation: Jon Garling v Northern Beaches Council [2022] NSWLEC 102
Hearing dates: 04 and 05 August 2022
Date of orders: 05 August 2022
Decision date: 05 August 2022
Jurisdiction: Class 1
Before: Pepper J
Decision:
Notice of motion for joinder dismissed.

Catchwords:
CIVIL PROCEDURE: urgent application for joinder in Class 1 appeal – applicable legal principles – whether issues sought to be raised by intervenor would be sufficiently addressed absent a contradiction – delay in bringing application for joinder – whether Commissioner should have regard to previous Class 4 consent orders and their alleged non-compliance in the Class 1 appeal – issues raised by intervenor would be either raised by the parties in their contentions or able to be dealt with by the intervenor by way of submissions – joinder refused.

Legislation Cited:
Access to Neighbouring Land Act2000
Civil Procedure Act2005, s 56
Environmental Planning and Assessment Act 1979, s 8.15(2)
Land and Environment Court Act 1979, ss 34AA, 38(2), 39(4) and 39A

Cases Cited:
Avalon Beach Property Pty Limited CAN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council (2017) 227 GLERA 393; [2017] NSWLEC 130
Azzure-Blacktown Pty Limited v Blacktown City Council [2009] NSWLEC 63
Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205
Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5
Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; [2002] NSWLEC 195
Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802
Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243
The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205
The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94

Category: Procedural rulings
Parties: Joanne Jefferies (Applicant for Joinder)
Jon Garling (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
P Tomasetti SC (Applicant for Joinder)
J Reid (Applicant)
Solicitors:
SWS Lawyers (Applicant for Joinder)
Sattler & Associates Pty Ltd (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s): 2022/80407
Publication restriction: Nil

EX TEMPORE Judgment

Joanne Jefferies Seeks to be Joined as a Party to a Class 1 Appeal

By notice of motion filed on 22 July 2022, Joanne Jefferies (“Jefferies”) seeks to be joined to a Class 1 appeal brought by Jon Garling (“Garling”) against the part refusal by the Northern Beaches Council (“the Council”) of a third modification application by Garling (“Mod 3”) in respect of a development consent granted in 2016 by the Council (‘the development”).
The joinder application is brought pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (“EPAA”), which provides as follows:

8.15 Miscellaneous provisions relating to appeals under this Division
…
(2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder…

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: [2022] NSWLEC 102
Decision Date: 05 August 2022

CaseChat Overview and Summary

The matter of Jon Garling versus Northern Beaches Council came before the court where the primary issue was the council's alleged failure to provide the applicant with the opportunity to be heard before it made a decision to grant development approval. The applicant sought to join the council's Chief Executive Officer and a senior planner as additional defendants to the action, on the basis that they were involved in the decision-making process. The council opposed the application on the basis that the applicant had not demonstrated that the additional defendants had any involvement in the decision-making process, and that the application was an attempt to relitigate issues that had been previously determined.

The court found that the application for joinder was an abuse of process, as the applicant had failed to demonstrate any involvement of the additional defendants in the decision-making process. The court also noted that the application was an attempt to relitigate issues that had already been determined in previous proceedings. The court held that the application for joinder was not in the interests of justice and dismissed it accordingly. The court also noted that the applicant had not demonstrated any grounds for appeal against the original decision of the council.

The court found that the application for joinder was an abuse of process, as the applicant had failed to demonstrate any involvement of the additional defendants in the decision-making process. The court also noted that the application was an attempt to relitigate issues that had already been determined in previous proceedings. The court held that the application for joinder was not in the interests of justice and dismissed it accordingly. The court also noted that the applicant had not demonstrated any grounds for appeal against the original decision of the council. The court dismissed the notice of motion for joinder and ordered that the applicant pay the costs of the application.

Orders

Orders of the court

Notice of motion for joinder dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Jon Garling v Northern Beaches Council [2022] NSWLEC 102
Hearing dates:	04 and 05 August 2022
Date of orders:	05 August 2022
Decision date:	05 August 2022
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	Notice of motion for joinder dismissed.
Catchwords:	CIVIL PROCEDURE: urgent application for joinder in Class 1 appeal – applicable legal principles – whether issues sought to be raised by intervenor would be sufficiently addressed absent a contradiction – delay in bringing application for joinder – whether Commissioner should have regard to previous Class 4 consent orders and their alleged non-compliance in the Class 1 appeal – issues raised by intervenor would be either raised by the parties in their contentions or able to be dealt with by the intervenor by way of submissions – joinder refused.
Legislation Cited:	Access to Neighbouring Land Act2000 Civil Procedure Act2005, s 56 Environmental Planning and Assessment Act 1979, s 8.15(2) Land and Environment Court Act 1979, ss 34AA, 38(2), 39(4) and 39A
Cases Cited:	Avalon Beach Property Pty Limited CAN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council (2017) 227 GLERA 393; [2017] NSWLEC 130 Azzure-Blacktown Pty Limited v Blacktown City Council [2009] NSWLEC 63 Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5 Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; [2002] NSWLEC 195 Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94
Category:	Procedural rulings
Parties:	Joanne Jefferies (Applicant for Joinder) Jon Garling (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: P Tomasetti SC (Applicant for Joinder) J Reid (Applicant) Solicitors: SWS Lawyers (Applicant for Joinder) Sattler & Associates Pty Ltd (Applicant) Storey & Gough Lawyers (Respondent)
File Number(s):	2022/80407
Publication restriction:	Nil