Lahoud v Willoughby City Council

[2022] NSWCA 214

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lahoud v Willoughby City Council [2022] NSWCA 214

Hearing dates:

19 October 2022

Date of orders:

21 October 2022

Decision date:

21 October 2022

Before:

Ward P; Mitchelmore JA

Decision:

1.   Leave to appeal refused with costs.

Catchwords:

APPEALS — Leave to appeal — Interlocutory decision of the Land and Environment Court to refuse joinder of the Willoughby Local Planning Panel to proceedings — Whether joinder of the Panel to the judicial review proceeding was mandatory pursuant to r 59.3(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) — Whether primary judge erred in not exercising the discretion under r 6.24 of the UCPR to join the Panel as a necessary or proper party to the proceeding — Leave to appeal refused

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Environmental Planning and Assessment Act 1979 (NSW), ss 2, 4, 8, 9, 20, Pt 4 Div 4.2

Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017(NSW))

Environmental Planning and Assessment Regulation 2000 (NSW)

Interpretation Act 1987 (NSW), s 49(6)

Land and Environment Court Act 1979 (NSW), s 20

Supreme Court Act 1970 (NSW), s46A

Uniform Civil Procedure Rules (Amendment No 58) Act 2013 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)rr 6, 59

Cases Cited:

Be Financial Pty Ltd v Das [2012] NSWCA 164

Boga v AAI Limited trading as AAMI [2022] NSWSC 560

Burwood Area Community Housing Limited v Sutherland Shire Council (2006) 146 LGERA 91; [2006] NSWLEC 313

Carolan v AMF Bowling Pty Limited [1995] NSWCA 69

Coffs Harbour City Council v Noubia Pty Limited [2022] NSWCA 32

Coulter v The Queen (1998) 164 CLR 350; [1988] HCA 3

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hunters Hill Council v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188

In re The Will of FB Gilbert (1946) 46 SR (NSW) 318

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Lahoud v Willoughby City Council [2022] NSWLEC 125

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2018) 236 LGERA 176; [2018] NSWCA 304

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870

PE Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52

Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397

PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312

Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13

R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374; [1980] HCA 2

Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

State of Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56

Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56

Texts Cited:

G Spencer Bower, AK Turner and KR Handley, The Doctrine of Res Judicata (3rd ed, 1996, Butterworths)

New South Wales Legislative Council, Parliamentary Debates (Hansard), 9 August 2017

Category:

Principal judgment

Parties:

Victor Lahoud (Applicant)
Willoughby City Council (First Respondent)
Helm Pty Ltd (Second Respondent)
Willoughby Local Planning Panel (Third Respondent)

Representation:

Counsel:
TF Robertson SC with DW Robertson (Applicant)
CD Norton (1st and 3rd Respondents)
H Grace (2nd Respondent)

Solicitors:
Woolf Associates Solicitors (Applicant)
Lindsay Taylor Lawyers (First Respondent)
Mills Oakley (Second Respondent)

File Number(s):

2022/00309126

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2022] NSWLEC 125

Date of Decision:

13 October 2022

Before:

Moore J

File Number(s):

292505 of 2021

JUDGMENT

1. THE COURT: Before the Court for hearing on 19 October 2022 was an application by summons filed on 17 October 2022 for leave to appeal from an interlocutory decision made by Moore J in the Land and Environment Court on 13 October 2022 rejecting an application for the joinder to proceedings in that Court of the Willoughby Local Planning Panel (the Panel) (see Lahoud v Willoughby City Council [2022] NSWLEC 125).

2. The application for the joinder of the Panel was made by the applicant in those proceedings, Mr Victor Lahoud, pursuant to r 59.3(4) or alternatively r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The notice of motion filed by the applicant in the Land and Environment Court proceedings on 8 September 2022 which sought (inter alia) joinder of the Panel expressly invoked only r 6.24 of the UCPR but, as argued before the primary judge, the application was put on alternative bases pursuant to both the rules identified above.

3. The hearing of the application for leave to appeal was heard concurrently with the appeal (should leave be granted) and, by direction of the Chief Justice made on 17 October 2022 pursuant to s 46A of the Supreme Court Act 1970 (NSW), by a Court constituted by two judges of appeal. The matter was given an expedited hearing as the substantive proceeding has been listed for hearing for four days in the Land and Environment Court commencing on 1 November 2022 and, if the present application is successful, the applicant wishes to seek leave to administer interrogatories on the Panel and to have the Panel’s answer to those interrogatories to tender in the substantive hearing.

4. The respondents to the present application are Willoughby City Council (the Council), the first respondent in both this and the principal proceeding; Helm Pty Ltd (Helm), the second respondent in both this and the principal proceeding; and the Panel, the third respondent in the present proceeding and the subject of the applicant’s unsuccessful joinder application in the principal proceeding. The first and third respondents to the present application (the Council/Panel respondents) were jointly represented. They submitted to the orders of the Court in respect of the leave application but sought to be heard as to the substantive appeal and have filed a draft notice of contention seeking to affirm the decision of the primary judge on a different ground. Helm was represented at the hearing of the present application (not knowing whether it might be called upon to act as contradictor) but made no separate submissions in relation to the questions of leave and of joinder.

5. In essence, the proposed appeal raises issues as to whether the joinder of the Panel to the applicant’s judicial review proceeding in the Land and Environment Court was mandatory pursuant to r 59.3(4) of the UCPR or, in the alternative, whether the primary judge erred in not exercising the discretion under r 6.24 of the UCPR to join the Panel as a necessary or proper party to the proceeding. Given the time within which a decision was sought, the parties agreed that it would be appropriate for orders to be made with reasons to follow as soon as practicable thereafter. On 21 October 2022, after consideration of the issues raised, this Court made orders refusing the grant of leave to appeal, with costs. These are our reasons for so doing. Had leave been granted, we would (having heard the appeal concurrently with the application for leave to appeal) have dismissed the appeal with costs for the reasons that are briefly set out below.

Background

6. The applicant, by further amended summons filed on 10 March 2022 in the Land and Environment Court, has sought judicial review (pursuant to s 20 of the Land and Environment Court Act 1979 (NSW)) (LEC Act) of a decision to grant development consent on 29 June 2021 to a development application for the adaptive conversion of an existing building in Northbridge into shop top housing, including an additional level.

7. Under Div 4.2 of Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) entitled “[c]onsent authority” various bodies are designated as the “consent authority” in respect of different types of development (s 4.5). It is not in dispute that in the present case the relevant consent authority is the Council (s 4.5(d)). It may be noted at this point that s 4.5 does not designate any local planning panel to be a consent authority (cf the position with district or regional planning panels).

8. The relevant Minister has given a direction under ss 4.8(3) and 9.1 of the EPA Act requiring local planning panels to determine development applications (DAs) for the types of development specified in Sch 1. In the present case, as noted in the Council Officer’s assessment report dated 29 June 2021, Helm’s DA was required to be determined by the Panel as the application received over ten objections during the notification period (Item 2 – Contentious development) and the proposal exceeded the maximum height of buildings control under cl 4.32 of the Willoughby Local Environment Plan 2012 by 29.19% (Item 3 – Departure from Development Standards).

9. A local planning panel is required to give written reasons for its decision and make them publicly available (s 2.20(2) of the EPA Act). In the present case, a statement of written reasons for the determination of the DA by grant of consent has been provided (see Annexure C to the affidavit of Anna Sinclair affirmed 28 September 2022) (and the applicant notes that the reasons do not refer to any consideration of the issue of contamination beyond an acknowledgement that it was a relevant mandatory consideration in making the decision). The Notice of Determination (being Annexure D to Ms Sinclair’s affidavit) records that consent under s 4.16(1)(a) of the EPA Act was granted by the Council (in its capacity as consent authority).

10. The applicant’s further amended summons in the principal proceeding identifies the relevant decision maker as the Panel “on behalf of” the Council. The further amended summons also seeks relief invoking the civil enforcement provisions of the relevant legislation (s 9.45 of the EPA Act).

11. On the present application, the applicant complains that the primary judge has incorrectly described the proceedings (at [1] of his Honour’s reasons) only by reference to s 9.45 of the EPA Act, i.e., the civil enforcement provision – an error said to be of significance because s 20 encompasses claims for a whole suite of judicial remedies (such as orders in the nature of certiorari and the like) going beyond the relief that might be available in a proceeding under s 9.45 of the EPA Act. As explained below, this is identified as an error of the House v The King kind (see House v The King (1936) 55 CLR 499; [1936] HCA 40).

12. The applicant notes that where both sources of power are invoked the powers will be exercised by reference to both statutory schemes and general law principles relevant to the exercise of statutory functions (citing Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2018) 236 LGERA 176; [2018] NSWCA 304 per Basten JA at [35]; Payne JA at [85]).

13. In the Land and Environment Court proceedings, the applicant seeks a declaration that the decision to grant development consent was not validly made (order 1); an order that the consent and any construction certificate issued with respect to the consent be set aside (order 2); and (it is said by way of alternative relief though not expressed as such in the summons) an order (on the grounds referred to at [8](e), [16B], [17] or [26] of the further amended summons filed 10 March 2022) that the development be refused (order 2A). The applicant here emphasises that the order sought in prayer 2 is a quashing order in the nature of certiorari which, if obtained, would mean that the development application would remain on foot to be decided by the Panel in accordance with its statutory duty, whereas the relief sought in prayer 2A would have the effect that the development application would be refused and there would be nothing left to be determined by the Panel.

14. It is noted by the applicant that the grounds on which relief is sought in the further amended summons include, in ground 5, a failure (by the Council) to consider contamination (as required by State Environmental Planning Policy 55 (SEPP 55) cl 7(1)) (see [41] of the further amended summons); in the alternative, if contamination was considered, a failure (of the Council) to satisfy itself that the subject land either was or was not contaminated (see at [42]); and, in the further alternative, a failure (by the Council) to make enquiries as to whether the land was contaminated and a failure to discharge its duty to do so by relying upon the factually erroneous advice of the Environmental Health Officer (see at [43]). Those allegations are denied by Helm (see its points of defence filed on 18 March 2022). The Council has (consistent with the so-called Hardiman principle – see R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 (Hardiman)) filed a submitting appearance in the principal proceeding (and hence required leave to make submissions resisting the joinder application).

15. The joinder application was precipitated by the response from the Council to draft interrogatories served on the Council’s solicitors on 29 June 2021 in which the applicant sought answers to questions evidently designed to elicit admissions going to matters such as to whether information was received or enquiries made as to contamination risks or contamination on the subject land (and what knowledge the Panel had of whether development for a purpose referred to in the Contaminated Land Planning Guidelines (Sch 1) had been carried out on the land prior to a certain date). The response to certain of those draft interrogatories (1-8), for the administration of which it should be noted that leave had not at that stage either been sought or granted, from the Council’s solicitors was to the effect that the Panel was a separate statutory body constituted by the Council under the EPA Act that carried out the functions of a council as a consent authority under Part 4 of the EPA Act that were conferred on it. The Council’s solicitors noted that legal proceedings could be taken by or against the Panel (referring to s 2.20(7) of the EPA Act). The Council’s position was that interrogatories 1-8 were properly questions for the Panel and could not be answered by the Council. The email stated that the Council could only address questions in respect of what information it gave to the Panel.

16. The applicant’s solicitor then formed the opinion (see the affidavit of Bruce Woolf sworn on 8 September 2022 and filed in the principal proceeding in support of the joinder application) that the Panel was a proper and necessary party to the proceedings and should be joined as a respondent pursuant to r 6.24 of the UCPR. A notice of motion seeking (inter alia) an order to that effect was then filed. That application was opposed by the Council (thus giving rise to what the applicant here somewhat plaintively describes as a Catch-22 situation).

Primary judgment

17. The joinder application was heard by the primary judge on 4 October 2022 and the primary judge expeditiously dealt with that application and published reasons dismissing the application on 13 October 2022. His Honour rejected the proposition that r 59.3(4) of the UCPR mandated the joinder of the Panel (see at [35]-[43] of the primary judgment) and concluded that it was not necessary that the Panel should be joined as a party for the purposes of r 6.24 (see [44]-[51]).

18. As neither party here seeks to support the reasoning on which the first of those conclusions (that joinder of the Panel was not mandatory) was reached, it is not necessary here to outline in detail or address the primary judge’s reasons for concluding that joinder was not mandatory (which included that the body “responsible for” the decision was that which had the responsibility for giving effect to and administering the decision and that joinder of the Panel would contravene the Hardiman principle) save to note that, with respect, we do not endorse that reasoning.

19. As to the second of those conclusions (that the Panel’s joinder was not necessary), his Honour noted that the applicant had contended, first, that it was necessary that the Panel be joined so as to ensure that the Panel was bound by any orders that might be made arising out of the substantial hearing of the matters. His Honour referred to what was said in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 (Ross v Lane Cove) by Leeming JA at [49] as to when joinder of a party was necessary but said that this was not relevant to the present case because the orders sought in the further amended summons did not seek any order that mandated any future course of conduct on behalf of the Panel nor did it interfere in any fashion with the rights or obligations of the Panel. The primary judge noted that order 2A sought to have the relevant development application refused by the Court as an outcome of the proceedings without the development application being remitted to the Panel for reconsideration and redetermination (see at [45]). His Honour went on to say that (at [46]) under those circumstances that which was sought by the applicant in the proceedings expressly excluded any future activity by the Panel concerning the development application. The applicant says that this is incorrect and amounts to a House v The King error, in that if the applicant were to succeed in obtaining the relief in orders 1 and 2 but not the relief in order 2A, then the matter would be remitted to the Panel.

20. As to the alternative basis on which the applicant invoked r 6.24(1) of the UCPR (namely, the subsidiary purpose of enabling interrogatories to be served on the Panel), the primary judge was not satisfied that any material which might be provided by the Panel or any of its members, if interrogatories were to be permitted, would be necessary to advance consideration at trial of any of the matters pleaded in the grounds set out in support of the applicant’s further amended summons. The applicant here complains that there was a lack of procedural fairness in this regard in essence on the basis that the primary judge here determined an issue as to the administration of interrogatories when no application for leave to do so was before his Honour.

21. Accordingly, the primary judge dismissed the joinder application and, on the basis that costs follow the event, ordered the applicant to pay the Panel’s costs of the application for joinder. (A slip rule application has been made in relation to the costs order – and other aspects of the judgment – but it is not necessary here to consider this.)

Proposed grounds of appeal

22. The applicant seeks leave to appeal from the primary judge’s decision on the following proposed grounds:

1. The primary judge erred in J[35]-[43] in deciding that UCPR r 59.3(4) (the party rule) did not require that the Willoughby Local Planning Panel (Panel) be joined as a respondent to proceeding, in particular:

a.   in deciding that the party rule only required a party to be joined if it was responsible for “giving effect to and administering” a decision, even if it was not the decision-maker:

b.   in deciding that the party rule did not require the decision-maker to be joined as respondent to judicial review proceedings to review the decision;

c.   in deciding that the Panel should not be joined because its joinder would contravene the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; and

d. in deciding that the Panel should be immune from interrogatories (and inferentially any other fact-finding process such as answering a request under r 59.9), because to participate to that extent would breach Hardiman principles.

2. The primary judge erred in J[44]-[51] in deciding that the Panel should not be joined as a party to the proceeding pursuant to UCPR r 6.24(1), in particular:

a.   in deciding that the Panel’s joinder was not necessary because the applicant did not seek any relief against the Panel; and

b.   in deciding that the Panel’s joinder to allow the applicant to administer interrogatories on it was not necessary because there was no material which might be provided by the Panel, or any of its members, which would be relevant to any matters pleaded in the applicant’s Further Amended Summons.

Draft notice of contention

23. By their draft notice of contention, the Council/Panel respondents contend that the primary judge’s decision should be affirmed on the following grounds:

1. His Honour should have held that, for the purposes of Pt 59 rule 59.4 of the Uniform Civil Procedure Rules 2005 (UCPR), the body responsible for the decision to be reviewed in the proceedings in the Court below was the First Respondent [the Council], as:

a. the First Respondent was the body designated as the consent authority in respect of the relevant application for development consent under Pt 4 of the Environmental Planning and Assessment Act 1979; and

b.   the Third Respondent [the Panel] exercised the function of the First Respondent as consent authority to determine the relevant development application on behalf of the First Respondent.

2. His Honour should have held that the Third Respondent need not be joined as a party under Pt 59 rule 6.24(1) of the UCPR because:

a.   joinder of the Panel is not necessary to the determination of all matters in dispute between the parties; and

b.   joinder is not necessary for the purpose of having the Third Respondent bound by the decision of the Court below.

Leave to Appeal

24. Leave to appeal is necessary as the impugned decision is an interlocutory decision. The applicant submits that leave to appeal should be granted on the basis that the matter raises a “short but important” question about the “party rule” and the purpose of the “panel system” (that being identified as being to protect development decision-making from corrupt actors and political influence and to improve the quality of planning decisions). Further, the applicant says that the Council/Panel respondents have “abandoned” the primary judge’s reasoning and, as that reasoning may have far-reaching consequences, its disapproval alone is a ground for granting leave to appeal. As noted above, none of the respondents sought to argue the question of leave to appeal.

25. As to applications for leave to appeal, in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56, Campbell JA (with whom Young JA agreed) said (at [22]):

It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute.

26. In Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, to which Campbell JA referred in the passage extracted above, Kirby P (as his Honour then was) recognised (at [46]) that “ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance, or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable”. See also Be Financial Pty Ltd v Das [2012] NSWCA 164 at [33] per Basten JA.

27. In Coulter v The Queen (1998) 164 CLR 350; [1988] HCA 3, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority of the High Court noted that a leave requirement was a preliminary procedure “recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention” (see at 356 per Mason CJ, Wilson and Brennan JJ).

28. In summary, leave to appeal ought only be granted in matters that involve an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable (Coffs Harbour City Council v Noubia Pty Limited [2022] NSWCA 32 (Noubia) at [67] per Preston CJ of the LEC; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] per Campbell JA (with whom Young and Meagher JJA agreed); Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] per Gleeson JA (with whom Macfarlan and Payne JJA agreed)). Where a disproportionate amount of time and cost will be involved, that is a factor tending against the grant of leave to appeal, particularly having regard to the case management principles enshrined in the Civil Procedure Act 2005 (NSW) (see Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 at [45] per Ward JA, as her Honour then was).

29. There is an even greater reluctance to grant leave to appeal where (as is the alternative basis on which joinder was rejected in the present case) the decision involves an exercise of discretion on a point of practice and procedure rather than an exercise of discretion which determines substantive rights of the parties (see In re The Will of FB Gilbert (1946) 46 SR (NSW) 318 at 323 per Jordan CJ (with whom Maxwell J and Nicholas CJ in Eq agreed)). Ordinarily, a discretionary decision on a matter of practice and procedure will be overturned on appeal only if it can be demonstrated that the judge “(a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning” (Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] per Heydon JA, as his Honour then was (with whom Sheller JA and Studdert AJA agreed)). Thus, leave to appeal will not be granted if such errors justifying appellate interference with the decision are unable, or unlikely, to be demonstrated (Noubia at [68] per Preston CJ of the LEC).

30. In the present case, we do not consider that there is a sufficient issue of principle or general public importance involved in this matter, nor (having regard to our view as to the merits of the proposed appeal) has there been an injustice suffered. In essence, this is a complaint by the applicant at being unable to seek leave to administer interrogatories on the Panel in circumstances where (as explained in due course) the applicant has the documentary material that was before the Panel and its written reasons for the decision it made, on behalf of the Council and in the exercise of the functions conferred on the Council in relation to the making of such determinations to grant development consent. We do not accept that the Panel is a necessary and proper party to be joined to the Land and Environment Court proceeding; nor do we accept that the conclusion that the Council is the entity “responsible for” the decision for the purposes of r 59.3(4) means that the decision is not capable of challenge in the principal proceeding. The fact that the proposed appeal involves the question of the proper construction of the expression “responsible for the decision to be reviewed” does not of itself warrant a grant of leave to appeal, particularly in circumstances where it is our opinion that (albeit for what we consider to be the wrong reasons) we have concluded that the outcome reached by the primary judge was correct.

Mandatory joinder rule – r 59.3(4)

31. Part 59 of the UCPR, which was inserted by the Uniform Civil Procedure Rules (Amendment No 58) Act 2013 (NSW), applies to judicial review proceedings in the Class 4 jurisdiction of the Land and Environment Court (r 59.1(1)(b)). Rule 59.3 provides, relevantly, that:

…

(2)    If a decision to be reviewed arose in the course of a dispute between parties, each party who is interested in maintaining the decision must be joined as a defendant.

(3)    If the proceedings seek to prohibit, injunct or mandate a step that has not been taken, each body or person who may be directly affected by the relief sought must be joined as a defendant.

(4)    The body or person responsible for a decision to be reviewed must be joined as a defendant, but not as the first defendant unless there is no other defendant.

32. The applicant refers to the observations made at the time of the changes to both the procedures and the powers available in judicial review proceedings by Biscoe J (writing in The New Judicial Review Rules 2013, paper delivered to a seminar of the Environment and Planning Law Association, NSWLEC website 30 April 2013), his Honour there noting that often the truth of the grounds of judicial review advanced “lie particularly within the knowledge and records of the body responsible for the decision”. The applicant argues that it was for this reason that r 59.9 of the UCPR was made (enabling a party, where proceedings are commenced against a public authority, to require the public authority to provide a statement of reasons for its decision, setting out its factual findings, referring to the evidence or other materials on which those findings were based and explaining why the decision was made); and says that this rule would be unworkable if there were no power to join the actual decision-maker. The Council/Panel respondents, to the contrary, submit that r 59.9 also does not assist the applicant in this case, noting that the Panel is obliged to give a statement of reasons for any decisions it makes (s 2.20(2)), and that it has in fact done so in respect of the decision to grant the consent in question (see Annexure C to the affidavit of Anna Sinclair, affirmed 28 September 2022, being the Determination and Statement of Reasons of the Willoughby Local Planning Panel dated 29 June 2021). It is submitted that r 59.9 is otiose where an obligation to give reasons exists independently of the existence of judicial review proceedings.

33. The applicant also refers in his written submissions to the background to the introduction of Local Planning Panels into the process for determination of development applications in 2017 (Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017(NSW)) and to the observations made in Parliament at the time (referring to the second reading speech of Minister Harwin, New South Wales Legislative Council, Parliamentary Debates (Hansard), 9 August 2017 [20:45]) to the effect that the introduction of a “truly independent and expertly qualified” panel would greatly reduce the risk that the decision-maker will have a conflict of interest; and would help to de-politicise planning decisions and improve the thoroughness and quality of decision-making. Reference is also made to various of the amendments that were made to the Bill (said to reduce the risk of conflicts and to de-politicise the process); as well as to the constitution of, and directions given in relation to, local planning panels; and their functions. It is not necessary here to set those out in any detail. It suffices to note that both the applicant and the Council/Panel respondents have referred in some detail in their written and oral submissions to the provisions of the EPA Act as to the constitution and functions of local planning panels and as to the role of council as a consent authority.

34. Relevantly, it is not in dispute that the functions of the Panel include the specified functions of the Council as a consent authority under Part 4 that are conferred on it (s 2.19(1)(a)); that the Council is designated as the consent authority for development not otherwise allocated to another consent authority (s 4.5(d)) (as is the case here; it being the relevant consent authority); that the Council’s functions as consent authority are not exercisable by the councillors but are only exercisable on behalf of Council by the Panel (s 4.8(2) and (3)) (albeit that there is some disagreement between the parties as to the import of this limitation); and that the functions conferred on the Panel include the determination of DAs and various other decision-making functions which relate to the development decision under the EPA Act (s 4.8(4)).

35. It is noted that development decisions by a panel can be reviewed under Div 8.2 of the EPA Act at the instance of the applicant for development consent (s 8.2(1)(a) and (b)) but are not reviewable by a council; rather, a determination or decision made by a panel can only be reviewed by the panel (s 8.3(5)) and the functions of the panel on review are the same as its functions in connection with the original application or determination (s 8.5(2)).

36. The applicant emphasises that, for DAs determined by a local planning panel, a council has no deliberative function; its only functions being ministerial (to process the development application and to issue a notice of determination) (referring to s 4.18(1) of the EPA Act, and cll 100-102 of the Environmental Planning and Assessment Regulation 2000 (NSW)).

37. Both parties referred to the decision of this Court in Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262 (Pselletes) where (considering the same legislation but with different wording) it was held that the notice of determination is not the decision to grant or refuse development consent. The applicant says that, by parity of reasoning, the decision in the present case was the determination of the Panel to grant consent (which, with reasons, was published to a website) not the notice of determination issued by the Council. The Council/Panel respondents accept that the decision can be applied by analogy to the legislation as currently worded but they emphasise that in that case (where the development application had been determined by a council officer under delegation, as currently contemplated by s 4.8(2)(b)), the Court clearly considered that the decision to grant consent was a decision of the consent authority itself (that is, of the Council) (referring by way of example to [39], [47], [54] of the reasons of Tobias JA, with whom Ipp JA and Sackville AJA agreed).

38. The applicant’s contention in essence is that, as the decision here sought to be reviewed was made by the Panel, for the purposes of r 59.3(4) the Panel is the body or entity “responsible for” that decision. Complaint is made that the primary judge’s construction of r 59.3(4) would in effect quarantine the actual decision-maker from judicial review (at least where there is another body having machinery functions relating to a decision) and that this would operate unfairly against the applicant, because he has been precluded from challenging the actual determination of the Panel (a premise disputed by the Council/Panel respondents) and it has the procedural consequence that he cannot interrogate the Panel to prove that it did not consider land contamination.

39. The Council/Panel respondents say, to the contrary, that the body “responsible for” the decision to be reviewed is the Council, not the Panel, on the basis that the Council is the consent authority in respect of the relevant DA under the EPA Act and that the Panel merely exercised the Council’s functions on its behalf. It is said that the scheme of the EPA Act demonstrates that the Council, being the consent authority, is the body “responsible for” the determination of the relevant kind of DAs. In oral submissions, the Council/Panel respondents resisted the suggestion that responsibility for the decision should be read as a reference to the body or entity which was the “decision-maker”, instead arguing that it was a reference to the body or entity in whom the power to make such a decision was reposed by the statute (i.e., the consent authority).

40. In particular, the Council/Panel respondents note that the EPA Act provides for a number of functions of a “consent authority”: development consent under Pt 4 may be obtained by the making of a determination of a consent authority (s 4.2(2)(a)) (as was the case here); applications for development consent are made to the consent authority (s 4.12(1)); the consent authority has obligations in relation to consultation or concurrence (s 4.13(1)); determination of development applications is a function of the consent authority (s 4.15(1) and 4.16(1)) and the consent authority has a number of obligations in making determinations set out in ss 4.15(2)-(4); a consent authority must notify “its determination” of an application in accordance with s 4.18(1) to the applicant and such other persons as are required by that section; a consent authority may also modify a consent it has granted (ss 4.55 and 4.57), or revoke a consent (s 4.57), in certain prescribed circumstances; and an applicant for development consent may request a consent authority to review a determination or decision made by that consent authority (s 8.3(1)). The Council/Panel respondents say that the EPA Act regards decisions made under Pt 4 of the Act in relation to an application for development consent to be “made by the consent authority” (referring to ss 8.6(1), 8.7(1), 8.8(2), and 8.9).

41. It may be noted at this point that neither of the opposing parties here suggests that the conclusion for which it contends requires the insertion of any words into r 59.3(4) (contrary to the apparent perception of the primary judge that this was the case).

42. In considering the opposing arguments on the issue as to mandatory joinder, it is relevant to set out the provisions of s 4.8 of the EPA Act which relevantly provides that:

4.8    Exercise of consent authority functions on behalf of councils where local planning panel constituted

(1)    This section applies in respect of an area of a council for which a local planning panel has been constituted.

(2)    The functions of a council as a consent authority in respect of any such area are not exercisable by the councillors. They are exercisable on behalf of the council by—

(a)    the local planning panel, or

(b)    an officer or employee of the council to whom the council delegates those functions.

(3) The Minister may give directions to councils under section 9.1 (either to particular councils or to councils generally) on the development applications that are to be determined on behalf of the council by a local planning panel.

(4)    For the purposes of this section, the functions of a council as consent authority include—

(a)    the determination of development applications ...

43. As is made clear by ss 4.5(d), 4.8 (and see also s 2.19(1)(a)), the Panel, in determining the DA, is not exercising an independent function conferred upon it but, rather, is exercising the function of the Council in relation to determination of development applications under Pt 4 of the EPA Act, doing so “on behalf of the Council”. As the Council/Panel respondents point out, in exercising that function the Panel is in a similar position to an officer or employee of the Council to whom Council may delegate its functions as contemplated by s 4.8(2)(b). The position of the Panel in this regard may be contrasted with Sydney district and regional planning panels, which are designated as the consent authority with respect to certain decisions under the EPA Act (See ss 4.5(b) and 2.15(a)).

44. The fact that the decision is made “on behalf of” the Council is in our opinion telling. The Council/Panel respondents have referred to the consideration of that phrase in other contexts (in R vToohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374; [1980] HCA 2 (Toohey) at 386 per Stephen, Mason, Murphy and Aickin JJ; and in Burwood Area Community Housing LimitedvSutherland Shire Council (2006) 146 LGERA 91; [2006] NSWLEC 313 per Preston CJ of the LEC), namely, that the use of the phrase “has no single and constant significance” but that its usage in conjunction with a wide range of relationships is “concerned with the standing of one person as auxiliary to or representative of another person or thing”.

43. The Council/Panel respondents argue that, having regard to its context in the statutory scheme, in s 4.8(2)(a) the phrase “on behalf of” should be construed in the sense referred to in Toohey; that is, that the Panel exercises the Council’s functions in relation to development applications as a representative, or (in an informal sense) a delegate, of the Council; and that it is therefore incorrect to characterise the Panel as being “responsible for” the decision. Such a submission finds support in the decision of Boga v AAI Limited trading as AAMI [2022] NSWSC 560, where Dhanji J held at [3]-[5] that a delegate exercising a delegated function is not the entity “responsible for a decision” pursuant to r 59.3(4); rather, the delegator (there the President of the Personal Injury Commission) is the entity responsible for the decision, having regard to s 49(6) of the Interpretation Act 1987 (NSW).

44. The Council/Panel respondents say that, were the applicant’s construction to be correct, in any case where s 4.8 applied a council would never be the body “responsible for” the decision to grant a development consent, and would never be required to be joined by r 59.3(4).

45. The applicant argues that it is not necessary that there be a binary choice as to the entity responsible for the decision for the purposes of r 59.3(4) (and that there may be cases where more than one entity may be required to be joined as being responsible for the decision). However, the Council/Panel respondents argue that the provision does not contemplate multiple decision-makers or entities responsible for the decision to be reviewed.

46. In our opinion, it follows from the fact that the Council is the consent authority and the Panel is exercising its statutory functions on behalf of the Council that it is the Council that is the entity “responsible for” the decision to be reviewed and therefore that the joinder of the Panel to the judicial review proceeding in the Land and Environment Court is not mandated pursuant to r 59.3(4) of the UCPR. The fact that the legislation contemplates that in some instances the Panel may be joined as a party to proceedings (see s 2.20 of the EPA Act) or that the Panel has an obligation to give reasons for its decision does not change that conclusion. Therefore, albeit not for the reasons given by the primary judge, we consider that his Honour did not err in concluding that the joinder of the Panel was not mandatory.

Discretionary joinder – rule 6.24

49. The alternative (and initial) basis on which the applicant contended that the Panel should be joined to the principal proceeding was that it was a necessary and proper party (first, because this was necessary for it to be bound by the decision in the principal proceeding - see Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 at [13] per Basten JA; and Hunters HillCouncil v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188 at [47] per Basten JA) and, additionally, on the basis that this was necessary for him to be able, with leave, to administer interrogatories on the Panel.

50. Rule 6.24 of the UCPR provides that:

(1)    If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

51. Insofar as the decision under challenge was one made in the exercise of the discretion as to joinder of parties (pursuant to r 6.24 of the UCPR), the applicant accepted that it was necessary for error in the House v The King sense to be demonstrated (albeit that the applicant did not address this as such in his written submissions).

52. In oral argument the errors identified as being of this kind were threefold: first, that the primary judge misunderstood the relief that was sought by the applicant (i.e., that the effect of vitiation of the consent is that an undetermined development application would be before the Panel); second (which is in effect the same point) that the primary judge found that there was no duty on the part of the Panel to re-determine the matter if the applicant succeeded in obtaining orders 1 and 2 (as opposed to the position if he succeeded in obtaining order 2A) and, third, that there was an absence of reasons for the finding made as to the question of interrogatories.

53. As to the first of the two errors thus identified, the concern expressed by the applicant is that unless it is bound by the judgment the Panel could re-decide the development application making the same errors (the applicant noting that in its points of defence Helm has raised s 25B of the LEC Act, where the Court may suspend the consent and order the Panel to re-decide an aspect of the development application).

54. As to the third, the complaint as to inadequacy of reasons (in submissions it being said that there was simply a conclusory statement at [50] of the primary judgment to the effect that the administration of interrogatories would not advance the applicant’s case) does not appear in the proposed grounds of appeal (the complaint there being as to a lack of procedural fairness in the primary judge’s conclusion that interrogatories would be of no utility). In any event, the complaint here made by the applicant in essence is that the draft interrogatories sought admission of a failure to consider contamination and hence it is submitted that an admission in answer to an interrogatory would advance his case (and thus that it was an error for the primary judge to have concluded otherwise).

55. As to the “errors” for which the applicant contends, true it is that the primary judge (having referred to the judicial review proceeding) seems to have concluded that the order sought in prayer 2A meant that there would be no continuing activity on the part of the Panel (which will not be the case if the relief obtained is to the effect of that sought in prayers 1 and 2). However, it does not follow from this that the Panel is a necessary party to the proceeding in order to be bound by the decision.

56. As the Council/Panel respondents argue (and, at least to some extent, the applicant appears to accept) a determination that the development consent was invalid would be a decision in rem rather than in personam (see PE Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 at 445-446 per Hope JA with whom Samuels and McHugh JJA agreed); and hence binding and conclusive against the world generally, rather than just the parties (see also G Spencer Bower, AK Turner and KR Handley, The Doctrine of Res Judicata (3^rd ed, 1996, Butterworths) at [14], [19], [234], [256]). Therefore, at least to the extent that there were to be a determination as to the validity of the development consent, the Panel would not need to be joined to the proceeding in order to be bound by the decision. Further, the Council/Panel respondents argue that, to the extent that the decision were not binding on the Panel if it were not to be joined as a party, it would be fanciful to suggest that a statutory body would not act in accordance with such a determination (and, if it did not act in accordance with such a determination it could be made the subject of proceedings – although that rather assumes the force of the complaint here made by the applicant).

57. Reference was made by the opposing parties to what was said by Leeming JA (Meagher JA and Tobias AJA concurring) in Ross v Lane Cove at [51], where his Honour noted that it was settled law that a person directly affected by the orders sought in a proceeding is a necessary party. However, the Council/Panel respondents emphasise that his Honour there also noted that joinder is not always necessary and that, if no prejudice would be suffered by a party not being joined, his or her presence could be dispensed with (see at [61]) because the underlying concern founding this “settled law” is one of natural justice (his Honour citing State of Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 at [77] per McHugh J). The Council/Panel respondents submit that the Hardiman principle is here relevant in that (given that the participation of the decision-making tribunal should be limited in the way suggested in Hardiman at [54]), there is no requirement arising as a matter of natural justice to join the Panel to enable it to be heard as to the merits of the case.

58. Reference was also made by the parties to the test articulated by Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 (at 55-56) and endorsed by the Full Court of the Federal Court in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870 at 524 per the Court (Lockhart, von Doussa and Sackville JJ).

59. As to the desire of the applicant to be able to issue interrogatories to the Panel (and leaving to one side for the moment the complaints as to procedural fairness and inadequacy of reasons), the Council/Panel respondents submit (and we agree) that the convenience of such a course is not, of itself, a reason to join a party to proceedings. (Indeed, there might well be said to be scope for an argument as to abuse of process if a party were to be joined to proceedings simply to enable interrogatories to be administered to it.) The Council/Panel respondents point out in this context that the Panel has provided reasons for its decision, as required by the EPA Act (referring to the document entitled “Determination and Statement of Reasons” dated 29 June 2021, which lists in Schedule 1 all material considered by the Panel); and that the Council has also provided the applicant with the Council Assessment Report dated 22 June 2021 (a document referred to by the Panel), and a link to the audio recording of the Panel meeting. The Council/Panel respondents say that these materials provide a detailed record of the decision-making process of the Panel.

60. The applicant’s response to this is that just because this material has been provided does not mean that he does not have legitimate reasons for seeking further evidence from the Panel in respect of its decision-making processes (such as by way of interrogatories, or discovery or other means). The applicant says that the Panel’s reasons are silent on the topic of contamination, i.e., as to how, if at all, the Panel applied the complex provisions of cl 7 of State Environmental Planning Policy No. 55 – Remediation of Land (though he appears to concede that this might be the subject of proof by inferential reasoning).

61. Insofar as complaint is made as to inadequacy of reasons, it must be remembered that the reasons were delivered expeditiously in the context of an interlocutory case management decision (see the authorities in this regard including Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). We do not consider that the brevity of the reasons in the present case warrants a grant of leave to appeal.

62. Insofar as a complaint is made as to lack of procedural fairness, no decision has been made in any determinative sense as to the administration of interrogatories (no doubt because, as the applicant accepts, there was no application for leave to administer them). However, there was no error in our opinion in his Honour taking into account as a relevant consideration whether it appeared on the case as pleaded that the interrogatories sought to be administered would advance or might advance the applicant’s case. This was, after all, the alternative basis on which it was submitted that the Panel was a necessary and proper party to be joined; and a reason put forward for the exercise of discretion in favour of joinder. The applicant can hardly now complain that the primary judge took this into consideration; and as to the assessment of the likelihood that the answers would advance the applicant’s case, this seems to us to be an evaluative observation on which minds might differ – but hardly an error of principle or the like.

Conclusion

63. For those reasons, this Court concluded that leave to appeal should be refused with costs (and that if leave were to have been granted we would have dismissed the appeal).

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Decision last updated: 25 October 2022