Kennedy v Stockland Developments Pty Ltd (No 2)
[2011] NSWLEC 186
•01 November 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd (No 2) [2011] NSWLEC 186 Hearing dates: 28 October, 31 October, and 1 November, 2011. Decision date: 01 November 2011 Jurisdiction: Class 4 Before: Sheahan J Decision: (1) The motion to join a second respondent is dismissed.
(2) The applicant is ordered to pay ARV's costs on that joinder motion.
(3) All other costs are reserved.
(4) The refusal of an interim injunction against the respondent is affirmed.
(5) The orders made on 31 October 2011 are to stand till further order.
(6) All exhibits except Exhibit R2 are returned, but Exhibit R2 is to be returned to file 40880 of 2011 (as Exhibit S3 ).
(7) The applicant is directed to file Points of Claim, and any further Notice of Motion for leave to amend his summons, by close of business Tuesday 8 November 2011.
(8) This matter is to be included in the List Judge list for Friday 11 November 2011.
Catchwords: PRACTICE AND PROCEDURE: Attempt to join a second respondent Legislation Cited: Environmental Planning and Assessment Act 1979
National Parks and Wildlife Act 1974Cases Cited: Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185
North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169Category: Procedural and other rulings Parties: Roy "Dootch" Kennedy (Applicant)
Stockland Developments Pty Ltd (Respondent)Representation: Mr A Oshlack, agent (Applicant)
Mr H El-Hage, with Mr J E Robson SC (on 1 November 2011) (Respondent)
Ms F J Rourke and Ms R A Pleming, Solicitors (for Anglican Retirement Villages)
Mr A Oshlack, Agent, c/o Indigenous Justice Advocacy Network (Applicant)
Herbert Greer (Respondent)
Norton Rose (for Anglican Retirement Villages)
File Number(s): 40977 of 2011
EXTEMPORE Judgment
Introduction
The summons in this matter (40977 of 2011) was issued last Thursday 27 October 2011 naming only Stockland Developments Pty Ltd as respondent. A declaration and a restraining order were sought, with the latter also sought on an interim interlocutory basis.
The summons and interlocutory application were supported by an affidavit from the applicant dated 27 October 2011, and the interlocutory application went before Biscoe J on 28 October 2011.
In his judgment [2011] NSWLEC 185, His Honour referred it to me, as I am presently reserved in other class 4 proceedings (40880 of 2011) concerning the same project, known generally as " Sandon Point ". I heard it late on Friday 28 October and refused the injunction.
As there had been a suggestion made before Biscoe J, and before me, that an application might be made to reopen the reserved matter and enable the two matters to travel together, I stood the whole matter over to today.
Yesterday morning 31 October 2011, on the basis of affidavit evidence given by Michael Braithwaite regarding events at and on the development site on 29 and 31 October, I made orders on an ex parte basis restraining unauthorised members of the public entering the relevant lands, which had been clearly specified. I also ordered the applicant to pay Stockland's costs of that motion.
This morning Mr Oshlack indicated that there would be no application made to reopen 40880 of 2011, but he filed in court a motion to:
(1) add to 40977 of 2011 a second respondent, namely Anglican Retirement Villages ('ARV'),
(2) amend the summons accordingly, and
(3) set aside my orders of yesterday.
He also sought leave to file in court the applicant's Points of Claim against both respondents.
Mr Oshlack relied upon an affidavit sworn by him this morning, in which he responded to some of Mr Braithwaite's evidence, namely that which made allegations in respect of Mr Oshlack's own conduct. He asserted that the protest itself was " peaceful and within the law ".
Joinder
Clearly it is in the interests of justice that all appropriate parties be before the court, and in the interests of " just, quick and cheap " disposition of proceedings that all appropriate respondents be joined from the outset.
The case made today in support of now joining ARV as a second respondent is based on that entity's longstanding involvement in concept planning for the Sandon Point area, and the obvious possibility that its land to the south of the Stockland project might be appropriately and successfully developed. Mr Oshlack's affidavit asserts that this gives ARV " a direct and legal interest in the development occurring on its land adjacent to [that] owned by the respondent [Stockland] ", and that the first respondent " is in the midst of destroying a Sacred Womens site ", said to be on ARV's land.
ARV was on notice that its joinder would be sought, and it was represented today by its solicitor, Ms Rourke. ARV's position is that the proceedings, in terms, concern " undertaking work not authorised by the [relevant] consent ", and that, as ARV's role is limited to its ownership of some of the affected land, it cannot be held to be in breach of s 76A of the Environmental Planning and Assessment Act 1979 (' EPA Act' ), nor of s 86 of the National Parks and Wildlife Act 1974 (' NPW Act' ) in respect of those works possibly " causing damage, destruction and/or desecration of Cultural Heritage objects ".
Mr Oshlack relied on documentation which has become very familiar to the court over the years of litigation concerning Sandon Point. Relevant sections of those documents clearly support Ms Rourke's position, and not his, and there is no evidence before the court implicating ARV in any way as an " active participant " in the matters pleaded against Stockland.
The relevant principles to apply to joinder of landowners in proceedings against others using their land, whether the action be in Class 4 or Class 5 of the court's jurisdiction, were collected and restated by the Chief Judge in North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169. " Mere " ownership does not make that person or entity responsible for carrying out development. As His Honour said (at [22]-[24]). " Some participation in or express authorisation of the acts constituting the carrying out of a development is required ... Positive acts are required; omission to act cannot suffice" .
There is in the present case no evidence of any " positive acts " relevant to the doing of the subject works, and so no evidence to support the asserted breach by ARV of the EPA Act . Also, mere " omission " to intervene in any apprehended damage to heritage items on its land would not result in orders against ARV under the NPW Act .
The motion to join ARV is refused, and the applicant is ordered to pay ARV's costs of that motion.
Other matters
In the absence of any additional evidence having been presented to the court, and in the absence of the joinder of ARV, there is no basis upon which the court should revisit the decision to refuse an interim injunction last Friday.
Nor do Mr Oshlack's affidavit or comments from the bar table invalidate the concerns I expressed justifying the orders I made yesterday about public intervention in the construction work.
As there is no motion to reopen 40880 of 2011, matter No 40977 of 2011 can now be referred to the List Judge's list for case management.
Clearly the Amended Summons and the Points of Claim presented to the court today are not appropriate, and leave to file them in matter 40977 of 2011 is refused.
Orders
The court makes the following orders:
(1) The motion to join a second respondent is dismissed.
(2) The applicant is ordered to pay ARV's costs on that joinder motion.
(3) All other costs are reserved.
(4) The refusal of an interim injunction against the respondent is affirmed.
(5) The orders made on 31 October 2011 are to stand till further order.
(6) All exhibits except Exhibit R2 are returned, but Exhibit R2 is to be returned to file 40880 of 2011 (as Exhibit S3 ).
(7) The applicant is directed to file Points of Claim, and any further Notice of Motion for leave to amend his summons, by close of business Tuesday 8 November 2011.
(8) This matter is to be included in the List Judge list for Friday 11 November 2011.
Decision last updated: 01 November 2011
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