Leimroth v Wingecarribee Shire Council
[2012] NSWLEC 256
•22 November 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Leimroth v Wingecarribee Shire Council [2012] NSWLEC 256 Hearing dates: 25 October 2012 Decision date: 22 November 2012 Jurisdiction: Class 1 Before: Sheahan J Decision: (1) The Notice of Motion, filed by the Applicants on 10 October 2012, is dismissed. (2) The Orders made in this matter on 10 October 2012 by the Acting Registrar, on the issues of joinder and costs, are confirmed. (3) All parties are to pay their own costs of the motion of 10 October, and the hearing of 25 October 2012. (4) The matter is returned to the Acting Registrar, to be listed before her on 30 November 2012, for the giving of further directions regarding its disposition.
Catchwords: PRACTICE AND PROCEDURE - Power to review a decision by the Registrar joining additional respondents - principles to apply. Legislation Cited: Aboriginal Land Rights Act 1983
Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Uniform Civil Procedure Rules 2005
Wingecarribee Local Environmental Plan 2010Cases Cited: Chriss v Williams (1988) 4 BCL 276
Council of the City of Sydney v Oaks Hotels Resorts (NSW) No 2 Pty Ltd [2011] NSWLEC 234
Council of the City of Sydney v Oaks Hotels and Resorts (NSW) No 2 Pty Ltd [2011] NSWLEC 235
CTI Joint Venture Co Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) [2011] NSWLEC 91
Foxe v Brown [1984] HCA 69, 58 ALR 542
Groeneveld v Wollongong City Council [2009] NSWLEC 149,168 LGERA 260
Gurtner v Circuit [1968] 2 QB 587, [1986] 2 All ER 328
House v The King [1936] HCA 40, 55 CLR 499
Humphrey & Edwards Pty Ltd v Woollahra Municipal Council [1998] NSWLEC 285
Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; 124 LGERA 173
Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802, 159 LGERA 361
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Quakers Hill SPV Pty Limited v Blacktown City Council (No 2) [2012] NSWLEC 243
Quakers Hill SPV Pty Limited v Blacktown City Council [2012] NSWLEC 200
Shoalhaven City Council v Bonner [2010] NSWLEC 251
Sky Design and Concepts Pty Ltd v Pittwater Council (No 4) [2009] NSWLEC 129
State of Victoria v Sutton [1998] HCA 56, 195 CLR 291
Thompson v New South Wales Land and Housing Corporation [2008] NSWSC 74
Tomko v Palasty (No 2) [2007] NSWCA 369, 71 NSWLR 61
Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80
Vandervell Trustees Ltd v White [1971] AC 912, [1970] 3 All ER 16
Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496
Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44Category: Procedural and other rulings Parties: Andrew John Leimroth (First Applicant)
Melvin Grace Zapanta Leimroth (Second Applicant)
Wingecarribee Shire Council (First Respondent)
Nicholas Lidstone (Second Respondent)
Anne Lidstone (Third Respondent)Representation: Ms S Duggan, SC and
Mr S Nash, barrister (Applicants)
Submitting appearance (First Respondent)
Mr T To, barrister (Second and Third Respondents)
KQ Lawyers (Applicants)
Shaw Reynolds Lawyers (First Respondent)
Hones La Hood (Second and Third Respondents)
File Number(s): 10470 of 2012
Judgment
Introduction
This is an application for review of a decision by the Registrar to join the second and third named respondents ("the Lidstones"), as full parties to these proceedings, which were brought by the applicants ("the Leimroths") against the Council responsible for the Southern Highlands township of Berrima, where both families reside -- the Lidstones since 1968 and the Leimroths since 1980.
The Acting Registrar made her decision on 10 October 2012, and the Leimroths immediately filed their notice of motion seeking its review.
On 17 October, directions were given, and the review matter was fixed for hearing on 25 October 2012. For a discussion on reviews of decisions of the registrar see my earlier judgment in Quakers Hill SPV Pty Limited v Blacktown City Council [2012] NSWLEC 200, at [26] -[30], and the cases referred to therein. Effectively, I have to determine de novo the question of joinder.
On 19 October, the solicitors acting for the Council wrote to the Court indicating that Council's position on the review motion was
...one of neutrality and this letter is to inform the Court that Council submits to any Order the Court may make on this Motion (save as to costs in the unlikely event an application is made for a costs award against Council).
For completeness, Council does not intend to file or serve either any additional evidence or any submissions on the Motion. Additionally, Council does not intend to appear at the hearing on the 25th October 2012. No disrespect is intended by the non-appearance.
The Relevant Provisions
The motion seeking review of the Acting Registrar's decision was brought under r 49.19 of the Uniform Civil Procedure Rules 2005 ("UCPR"), which provides:
If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.
However, while there has been some dispute among the parties as to whether UCPR rule 6.24 applies to this case, and counsel for the Lidstones relies upon s 38 of the Land and Environment Court Act 1979 (Court Act), there is no dispute that s 39A of that Act does not apply, as it does not contemplate or embrace appeals brought under s 121ZK.
Sections 38, 39 and 39A provides as follows:
38 Procedure
(1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.
(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.
(3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.
(4) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.
(5) In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings.
39 Powers of Court on appeals
(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.
...
(7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.
...
39A Joinder of parties in certain appeals
On an appeal under section 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979, the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion:
(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or
(b) that:
(i) it is in the interests of justice, or
(ii) it is in the public interest,
that the person be joined as a party to the appeal.
(emphasis added)
(As to s 39A, which was inserted in 2002 to cover ss 97 and 98 appeals, and extended in 2006 to s 96 matters, see now Quakers Hill SPV Pty Limited v Blacktown City Council (No 2) [2012] NSWLEC 243).
The highlighted passage in s 39A(a) above is absent from rule 6.24, which provides (emphasis mine):
6.24 Court may join party if joinder proper or necessary
(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.
(2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.
The Class 1 proceedings
The Class 1 application which commenced these proceedings was filed on 23 May 2012, appealing against an order dated 1 May 2012 issued by the Council pursuant to ss 121B and 125 of the Environmental Planning and Assessment Act 1979 (EPA Act), and seeking to have the Council's order revoked.
The Council's order required the Leimroths "to cease the use of" premises known as Berrima Diesel on Lots 8 - 17 inclusive, section 40 DP 758098 at RN 3483 Old Hume Highway, Berrima NSW as a "vehicle repair station", on the grounds (1) that there was no development consent for the use, (2) that it was not an existing use (as defined in the EPA Act), and (3) that the land on which it was being undertaken is located within Zone E3 Environmental Management in the Wingecarribee Local Environmental Plan 2010, wherein a "vehicle repair station" is prohibited. Compliance was required within 3 months.
An appeal lies against such an order pursuant to s 121ZK of the EPA Act. On appeal, the Court may (pursuant to subs (4))-
(a) revoke the order, or
(b) modify the order, or
(c) substitute for the order any other order that the person who gave the order could have made, or
(d) find that the order is sufficiently complied with, or
(e) make such order with respect to compliance with the order as the Court thinks fit, or
(f) make any other order with respect to the order as the Court thinks fit.
In the affidavit evidence before me, issue was joined on some factual issues of relevance to any continuation of the offending use in dispute in this matter. The Lidstones say that they moved on to their lands in 1968, when the subject site was vacant, that the subject site was used as a residence from about 1971, that the Leimroths purchased it in about 1980, and commenced the vehicle repair operation in about 1984, and that the operation began to expand from about 1990. There is some suggestion in the material, however, that Council knew of some such operation, dating back to the late 1950s.
In any event, the Lidstones say that they made inquiries/complaints from about 2009, but the Council took no action and provided no response until they retained a solicitor in 2010.
The Court ordered on 20 June that the matter be referred to a s 34 conference. Council filed a comprehensive statement of facts and contentions on 17 July. On 3 August Leimroths filed its statement in reply, agreeing with the Council's facts, and with three of its four contentions.
The disputed contention of the Council expressed concerns about "potential amenity and environmental impacts" of the offending operation, especially lighting, noise, and water quality. In reply, the Leimroths pleaded only for the Court's discretion to be exercised in their favour, and for suitable conditions to be imposed on that decision, to allow the continuation of the use. The grounds for the favourable exercise of discretion were the time for which the use had continued, the absence of complaint over many years, and the Leimroths' reliance on prior advice suggesting they enjoyed existing use rights.
The s 34 conference was eventually set down for, and commenced on, 11 September. Mr Lidstone made submissions to the Commissioner on site. Commissioner Morris adjourned it to 2 October, and then to 11 October, and it currently stands adjourned, pending a final decision on the joinder application. On 2 October, when it became clear that the parties to the Class 1 appeal had reached an agreement and wanted the Commissioner to implement it, the Lidstones filed their notice of motion seeking joinder.
The Hearing before the Registrar
A transcript of the hearing before the Acting Registrar is before the Court on this motion for review. Evidence was read and submissions were made during that hearing.
The Lidstones argued that, in terms of r 6.24(1), their joinder was "necessary", rather than that they "ought to have been joined as parties".
Ms Hemmings, who appeared for them on that occasion, relied on CTI Joint Venture Co Pty Ltd v CRI Chatswood Pty Ltd (in liq) (No 2) [2011] NSWLEC 91 ("CTI"), which in turn made reference to the well-known articulation of the relevant principles by Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 ("Pegang"), and by the Full Federal Court in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 (the "Super League" case).
Craig J noted in CTI that those statements of authority had been adopted as appropriate by McHugh J in State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 ("Sutton"). All of those decisions were made before the advent of the Civil Procedure Act 2005 ("CP Act"), which established the overriding purpose of litigation as just, quick and cheap resolution of the real issues in dispute, and that objective weighed heavily in the decision of Craig J in CTI.
By the time the Registrar considered the joinder issue in this present matter, the parties to the Class 1 appeal had reached an agreement which they intended asking Commissioner Morris to implement. As there was, therefore, no contradictor to raise the propriety of such an agreement's being sanctioned by the Court, the Lidstones contended that it was necessary that they be joined in the proceedings, so they could raise that issue for the Court's consideration.
The Registrar was informed that the Council had decided (by resolution passed unanimously on 26 September 2012) to agree to a period of three years from 21 September 2012 (c.f. 3 months in the notice) for the Leimroths to comply with the order to cease use of the premises for the offending purpose, and that Council had proposed various conditions, which the applicants had accepted.
The Lidstones submitted that the parties were asking the Court to grant approval for three years for an unlawful, unauthorised and prohibited land use, an approval of the type which would not be given if a development application were lodged, in view of the fact that the development is prohibited.
Shoalhaven City Council v Bonner [2010] NSWLEC 251 ("Bonner"), concerned dwellings constructed without consent in an area in which such development was prohibited. Biscoe J assumed he had the power to grant a suitable period of grace, but held (see [47] - [52]) that the three year "grace" period sought in that case was too long, as it amounted to "a kind of imposed notional development consent, outside the EPA Act", which "sits uncomfortably with the scheme of the Act", which provides for thorough assessment prior to consent. His Honour considered the respondents' personal situation, and granted a period of about nine months, which would bring the residential use to an end before the bushfire season.
In the present case, the Lidstones argued that such a concession exceeds the power available the Court on a s 121ZK appeal. However, if joined, they wished to raise also issues of merit and discretion.
Joinder to the Class 1 proceedings would obviate the need (even though the right to do so continues) for the Lidstones to bring any Class 4 proceedings in this Court (to restrain the use and/or secure the demolition of illegal structures), or to seek prerogative relief in the Supreme Court (to quash any decision made other than in the proper exercise of this Court's powers). The use of prerogative relief is discussed extensively in the Court of Appeal's decision in Lowy v The Land and Environment Courtof NSW [2002] NSWCA 353; 124 LGERA 173.
Mr Nash, counsel for the Leimroths, submitted that r 6.24 was rendered inapplicable by the EPA legislation: Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80 ("Tweed"). He submitted that the legislation envisaged that only the Council and the recipient of the order would be parties to the s 121ZK appeal, so r 6.24 is inapplicable, and joinder a matter of discretion.
He went on to address the tests in r 6.24, just in case it was held to apply. The intervenors were not liable to suffer any judgment or order of the Court in the proceedings and they have had the opportunity of full participation in the s 34 conference. Notwithstanding that the Lidstones have been heard at the s 34 conference, the parties have entered into an agreement, presumably on legal advice, and the Court is bound, by the statute, to carry it into effect. In the present case, discretionary factors support a longer period of time for compliance.
Mr Nash distinguished CTI and Bonner, and thought Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802, 159 LGERA 361 ("Morrison") was not relevant.
The fact of a compromise does not indicate that there is no contradictor. In Mr Nash's submissions, the Council is and remains the only proper contradictor. Ultimately, the Court is bound by the test of necessity if the rule applies, the Council having chosen to settle the matter. "The fact that the intervenors disagree with the Council's position is entirely irrelevant" (T10.10.12, p24, LL10-11). Due regard must be had, in exercising the joinder discretion to the overriding principles in ss 56-61 of the CP Act, namely (1) that proceedings be disposed of justly, quickly, and cheaply, (2) that the Courts must serve the "dictates of justice in [the] particular case", and (3) that delay should, as far as possible, be eliminated.
Mr Noble, solicitor for the Council, supported many of Mr Nash's submissions, including the exclusion of r 6.24, his distinguishing of cases, and the fact that the Lidstones' submissions on impact have been considered by the Council. He added (Tp26, LL17-20):
Why it is (sic) necessary to join the intervenors because the Court needs to be satisfied. It also has professionals before it who have an overriding duty to the Court to make sure that the Court is guided correctly.
Secondly, he pointed out (Tp26, LL25-29) that "the ongoing unlawful use has been going for over 20 years and ... has incrementally intensified over that time but at no point have the impacts [brought the Lidstones] ... to the position where they have wanted or attempted to bring cl 4 proceedings".
In her reply submissions, Ms Hemmings pointed out that, on Mr Noble's submission (above at [31]) joinder would be precluded in almost every case where parties are legally represented. That goes beyond Lord Diplock's principle. In response to his second submission, she pointed out that the Lidstones have been raising their concerns, about intensification of use, for several years. Council has finally taken action, but the s 34 agreement will "shut out the ability of the intervenors to restrain that use" (Tp27, LL24-25). It is important that the lawfulness or otherwise of any decision to sanction the agreement be agitated before the Commissioner. Ms Hemmings also argued that, post the CP Act, r 6.24 continues to apply to Class 1 proceedings.
The Registrar's Decision
The Acting Registrar's brief reasons for allowing the joinder are recorded in the transcript (at pp 29-30). She was "not persuaded" (Tp29, LL27-28) by Mr Nash's submissions that r 6.24 did not apply, so she turned her attention to the test of "necessity", and found it satisfied, on the principles stated by Craig J in CTI.
She went on to say that, if she were found to be wrong, she would "still join on discretionary issues", applying Morrision (especially pars [57] - [60] -see LL37-44), to ensure that there would be a "more meaningful contradictor". Any delay and additional cost must be balanced against the rights of the Lidstones, and the "spectre of further cases" (LL47-50). Joinder is "just", even if "not necessarily the quickest and the cheapest" (Tp30, LL2-4).
Her formal orders of 10 October were that the Lidstones be joined as respondents, that each party pay its own costs, and that the matter be stood over to 17 October. The review motion was filed on behalf of the Leimroths, later on 10 October (see [2] above).
The Application for Review
The Leimroths' Notice of Motion for review seeks the following relief:
1 That the decision of and orders made by the Registrar on 10 October 2012 in respect of the notice of motion filed by Nicholas Lidstone and Anne Lidstone, the second and third respondents, on 2 October 2012 be reviewed.
2 That in lieu of the orders made by the Registrar on 10 October 2012, the Court orders the notice of motion filed by Nicholas Lidstone and Anne Lidstone, the second and third respondents, on 2 October 2012, be dismissed.
3 That Nicholas Lidstone and Anne Lidstone, the second and third respondents, be removed as parties to these proceedings.
4 Costs.
5 Such further or other orders as the Court thinks fit to make.
The Court has had the benefit of detailed written and oral submissions by both the Leimroths and the Lidstones. The former were represented before me by senior counsel Ms Duggan SC (now leading Mr Nash), and the latter by Mr T To of counsel (in place of Ms Hemmings). As already noted, the Council, which was represented before the Acting Registrar, notified a submitting appearance (by letter) on the review motion.
Some arguments put to me on the substantive issue of joinder were not precisely the same as were put to the Acting Registrar (eg on the applicability of r 6.24).
The Leimroths' submissions
Ms Duggan says (T 25.10.12, p 4, LL 15-18 - my emphasis):
...the Registrar has made some errors in relation to her determination of the matter, but I'll ultimately submit that that's not a necessary component for review but we say that it adds to the force of my client's argument.
Ms Duggan submits that the discretionary considerations for reviewing the Acting Registrar's decision are "less likely to be exercised" where it goes to a matter of practice and procedure, than when it "affects the fundamental rights of the parties" (T pp 6-7), as the decision does in this case, by affecting the Leimroths' entitlement to obtain the benefit of the s 34 agreement, and giving the Lidstones rights beyond those to which they are entitled: see Tomko v Palasty (No 2) [2007] NSWCA 369, 71 NSWLR 61 ("Tomko"); Groeneveld v Wollongong City Council [2009] NSWLEC 149,168 LGERA 260 ("Groeneveld" - a costs case involving leave to amend a DA); Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44 ("Xiang" - an expedition case).
Rule 6.24 ([8] above) requires a "gateway" to be satisfied ("ought", or, here, "necessary", to be joined), before the Court considers exercising its discretion to join an additional party. I accept that submission.
Ms Duggan submitted (T p 8) that the Court had to consider the question of "necessity" in the statutory context in which the joinder issue arose in this case, namely the context of s 34 of the Court Act which applies differently in various types of matters which come before the Court.
Section 34 provides that parties to a matter in classes 1 to 3 may confer, sometimes without their agreement to do so, but in good faith, and may reach agreement in terms of a decision of the type the Court could impose in the proper exercise of its powers and functions. The Court need not concur, on the merits, with the terms of that agreement, and there is no provision in s 34 for any other person to be "consulted or notified or given the right to speak" (T p 8 LL 34-5).
In this case, however, the Lidstones were given the opportunity to be heard before the Commissioner was presented with the agreement reached, even though only the person named in a s 121B order (1) is required to be given notice of it, and (2) is to have the opportunity to make representations.
That limitation on people outside the parties to the notice, namely the Council and the Leimroths, does not infringe object 5(c) of the EPA Act, which mandates increased opportunities for public involvement and participation in planning and assessment, and is implicit in the legislative restriction of s 39A to development appeals. The fact that an order may be of interest or concern to a third party, and/or may impact on a third party, did not result in such parties being afforded any statutory rights to be heard in the process (T p 10).
Ms Duggan also submits (T p 11) that it is wrong to suggest that the proposed s 34 agreement should be regarded as "sanctioning" a prohibited use, even though the proposed conditions resemble those normally associated with a development consent. It does not make the use "permissible", and it requires its cessation, but, on discretionary grounds, it grants a longer period of time for compliance than was specified in the order. It also does not interfere with the rights of any person (including the Lidstones and the Council) to bring any other proceedings, whether in this or the Supreme Court (T p 12).
Joinder would be "necessary" to ensure that all persons liable to satisfy any judgment have had the opportunity to be heard, and not "necessary" when no relief is sought against that person, even though "affected": see my discussion of Super League in Council of the City of Sydney v Oaks Hotels Resorts (NSW) No 2 Pty Ltd [2011] NSWLEC 234 and Council of the City of Sydney v Oaks Hotels and Resorts (NSW) No 2 Pty Ltd [2011] NSWLEC 235.
I dare say that, on occasions, parties are joined in proceedings on a unanimous or consensual basis, without testing the question of "necessity", and, in some cases, no relief is sought against them. In the present matter, the Leimroths seek no relief from the Lidstones, and have not resisted their full participation in the s 34 process. Along with the Council, and the Court, the Leimroths have heard and considered the Lidstones' submissions, but they have chosen to oppose their joinder, and their submissions based on "necessity", while in no way seeking to preclude other action on their part.
On Ms Duggan's submission, the only question for the Commissioner now is that of jurisdiction to implement the parties' agreement. She distinguished Bonner, to argue that it is not authority for any proposition that the three year period sought was beyond the Court's power - in Bonner the discretionary considerations included "a serious risk to life and property" (T p 13, LL 11-12). If that submission is correct, she also submits that all other matters the Lidstones would raise are merit considerations, which should not be allowed. No "contradictor" is required on jurisdiction, as the parties to the agreement must jointly satisfy the Court of its power to make it. If not so satisfied, the Court would send the matter to a hearing.
Ms Duggan says that the Acting Registrar made her decision on the basis of an assessment appropriate to the application of s 39A, which is wider than r 6.24, and is excluded from cases like this: see Morrison at [56] - [60]. Joinder ought have been declined, as it offends the "just, quick and cheap" objective/"override" in s 56 of the CP Act (subs par 22). Mr Lidstone made his submissions, and the Council unanimously resolved to settle the proceedings by agreeing to the three year "grace" period, on conditions. The "override" is well served by the proper operation of s 34 in this case, and joinder should not be ordered, merely because it is "just or convenient", or motivated by "benevolence or sympathy for the intervenors" (subs par 26, relying on Vandervell Trustees Ltd v White [1971] AC 912, [1970] 3 All ER 16, ("Vandervell").
Although the authorities establish that I need not find an error of law on the part of the Acting Registrar, in order to review her decision and substitute my own, Ms Duggan argued (see subs par 27) that the decision was infected by the following errors:
(a) The Acting Registrar failed to give any reasons for finding that Tweed did not apply: Thompson v New South Wales Land and Housing Corporation [2008] NSWSC 74;
(b) Her finding of "necessity" was not reasonably open on the facts, and she applied Morrison, when it did not apply to the Lidstones' motion, and CTI, which was "entirely distinguishable" on its facts;
(c) She failed also to give any reasons for rejecting the Leimroths' submissions based on Gurtner v Circuit [1968] 2 QB 587, [1986] 2 All ER 328, Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496, and Foxe v Brown [1984] HCA 69, 58 ALR 542 (recorded in subs par 19);
(d) She failed to apply binding authority (of which none was referred to in par 27); and
(e) She applied the wrong test under r 6.24, before exercising her claimed discretion to order joinder (in the absence of finding "necessity").
On a s 121ZK appeal the Court has no obligation to consider third party submissions, as it does in ss 79(c), 96 and 97 matters. The UCPR cannot be read so as to afford "a greater right to be heard than that which the Act anticipated" (T p 15 LL 38-44).
Lastly, Ms Duggan submitted (T p 16) that, even if I found the "gateway" satisfied, the joinder should be declined (1) because of the Council's decision to resolve the proceedings, after having heard everything the Lidstones "could say" (L 9); and (2) because of the demands of the "override".
The Lidstones' submissions
Mr To submitted that the question before the Court is one of practice and procedure, and that Ms Duggan had relied upon Tomko without considering the "qualifying remarks" of Hodgson JA, with which Ipp JA concurred, and which the Chief Judge of this Court repeated in Groeneveld (at [12]).
On a question of practice and procedure, a review has to rely on a demonstrated error of law, or a "House v The King" ([1936] HCA 40, 55 CLR 499) error in the exercise of a judicial discretion. In House v The King (at 504-5), Dixon, Evatt and McTiernan JJ said:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Mr To then pointed (T p 17) to the "more subtle" contention, as put before me, cf to the Acting Registrar, regarding the ouster of r 6.24 because of the nature of the s 121ZK appeal. He submitted that some of the remarks of Meagher JA in Tweed, upon which Ms Duggan relied, need to be viewed in the wider context to them, provided by Bignold J's decision at first instance -Tweed Byron LALC v Minister Administering the Crown Lands Act [No 3] (1995) 89 LGERA 220 - in which his Honour held that he had no power to join the local shire council, but would have refused to do so, as a matter of discretion, if he had the power.
Bignold J's decision turned on (1) the particular terms of s 36 of the Aboriginal Land Rights Act 1983 ("ALRA") at the time, limiting the "persons involved in the making, and the determination of a land claim" (at 223); (2) the Court's limited function in an appeal under that section, and (3) the consequential displacement of the normal joinder principles (at 224).
Mr To acknowledged (T p 18) that only Council and the Leimroths were involved in the giving of the order, and the bringing of the appeal against it, but, once that appeal is commenced, the considerations facing the Court are more diverse, and because the order is "against use", the impacts of that use must be considered: see s 38, and Chriss v Williams (1988) 4 BCL 276. Rule 6.24 is not excluded, and should be applied in the two-step process I have earlier described ([42] above), in line with the principles conveniently summarised by Craig J in CTI, when he joined parties against whom no relief was claimed by the initiating party.
Craig J referred (at [10]) to Pegang, and then (at [11]) to Super League, and then noted (at [12]) that Lord Diplock's test and the Full Federal Court's observations "were adopted as appropriate" by McHugh J in Sutton, where his Honour said (at 316):
The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. That practice also assists in avoiding duplication of hearings on the same issues and in avoiding the spectre of inconsistent decisions by courts or the judges of the same court.
The interests of the Lidstones are more than "a mere curiosity". They have a right of "quiet enjoyment", "to enjoy their land in an unaffected state" (T p 19, LL 22-26), and that right is impacted by the continued, and expanding, illegal use of the neighbouring land, which the proposed s 34 agreement would extend for a further three years. If not joined, they will have to bring expensive and time-consuming Class 4 proceedings, in which the consequences of that agreement will squarely arise on the question of discretion, and against them, if they have not participated in the s 34 process.
Mr To said he could rely on the power in s 38 to seek joinder, independently of r 6.24. In Humphrey & Edwards Pty Ltd v Woollahra Municipal Council [1998] NSWLEC 285, Cowdroy J relevantly said (at [7] - [10]):
7. The Environmental Planning and Assessment Act 1979 enables a person who are not parties to the litigation to be joined or at least heard. It is obvious that Mr & Mrs Caridad, as adjoining land owners to the land the subject of the development application, have an interest in the matter which is now the subject of proposed consent orders. The question is whether such interest can be adequately addressed by the Council.
8. Where a party has a legal right to be heard in any proceedings, it would be a travesty if such hearing were compromised in any way. It is fundamental to the confidence in the administration of justice that rights of this kind be properly and fully exercised. Not only must there be actual exercise of such rights in this way, but justice must also be seen to be done. Lord Hewart in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at p 259 said that is was of fundamental importance:
that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
Such principle has been the cornerstone of numerous decisions of the High Court of Australia concerning the administration of justice.
9. Mr & Mrs Caridad are entitled to have the concern that the Council, having agreed upon a compromise, may not advance their submissions as forcefully as they might have done had they been opposed to the development. By virtue of the agreement that has been reached between the Applicant and the Council, there is obviously a degree of consensus which may not necessarily be in the interests of Mr & Mrs Caridad. This reason, of itself, justifies independent representation in order to eliminate any apprehension or suspicion that an objective member of the public may reasonably entertain, akin to the principles enunciated in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 (see esp p 264) and Livesey v The New South Wales Bar Association (1983) 151 CLR 288 (esp at 299).
10. There is another reason for concern. In Oshlack v Richmond River Council (1997) 96 LGERA 173 two justices of the High Court of Australia have stated that a Council, at least in contested injunctive proceedings, should take a neutral role. If such principle is to apply and to be considered applicable to other contested proceedings generally in which a Council is a party, Mr & Mrs Caridad would have every cause for concern that Council may not advance their interests. These considerations, pertaining to fundamental issues of the perception of justice, override the basis upon which representation was granted in Double Bay Marina Pty Limited v Woollahra Municipal Council (1985) 54 LGRA 313.
True it is in this case that Mr Lidstone has had the opportunity to express his concerns; but he has had no opportunity to comment on the length of the proposed grace period, nor on the conditions to be imposed.
The "just, quick and cheap override" applies not simply to the Class 1 proceedings, but, in terms, to the "real issues in the dispute or proceedings"(emphasis mine), and I note that, for the purposes and context of s 56, "party to a civil dispute" is defined to embrace any person "involved" in the dispute. In that context, a situation demanding separate Class 4 proceedings (argued by the Leimroths to be the only remedy the Lidstones really have) adds substantially to the costs involved in fully addressing "the dispute". Shutting the Lidstones out of the s 34 process in the Class 1 proceedings, Mr To submits, might be quick and cheap, but it is hardly just, and, in the long run, will not prove to be quick or cheap either (T p 21, LL 23-29).
Mr To (T p 23) argues that there was no House v The King error made, and the joinder power is available because none of the ALRA limitations in Tweed are present. Tomko makes clear (at [8]) that a deficiency in reasons should not necessarily lead to a review of an outcome otherwise demonstrated to be correct.
In the context of s 56, the Lidstones are a "necessary" party, and discretionary principles favour their joinder - they must be entitled to an opportunity to "contradict" the position agreed between Council and the Leimroths, namely that the Court, in the proper exercise of its functions, has the power to sanction an unlawful use for such a long period, a question left open by Bonner. The principles in Morrison regarding "meaningful" contradiction are not, and should not be, limited to, the context of that particular decision.
If the Lidstones are joined, some consensual resolution of the dispute, rather than the simple termination of the process, may be the outcome (a slightly different position adopted by Mr To than that earlier adopted by Ms Hemmings).
The Leimroths' reply
In reply, Ms Duggan reinforced her submission that the neighbour's right to have any "affectations" considered has been satisfied by the Council and by the Commissioner, and does not extend to joinder without satisfying the "gateway" provisions. She urged a restrictive interpretation of the relevant sections (38, 39 and 39A), and relied upon the very precise terms of s 34.
The "gateway" to finalisation of a matter being dealt with by the s 34 process is satisfaction that the agreement made between the parties is lawful, ie "within power". Beyond that, there is no consideration on the merits, even the merits of the grace period being as long as three years. She drew the Court's attention to the differences among relevant practice notes - the regime for s 34 agreements is different from that covering consent orders hearings in Class 1 development appeals, which, in turn, differs from that covering final consent orders in a "miscellaneous appeal", such as the present (see T pp 24-5). Section 34 does not contemplate a contradiction on the merits of the agreement or on questions of discretion.
Ms Duggan concluded her submissions in reply as follows (T p 28 LL 12-23):
If your Honour accepts the submissions made by my learned friend, as I've indicated to your Honour, your Honour will be interfering with the legislative process envisaged through s 34. The applicants were given an opportunity to speak which they weren't otherwise entitled to. They did speak. The fact that they haven't spoken in relation to every aspect of the s 34 agreement is precisely consistent with the legislative provisions in s 34 and to join them because the parties are following a process envisaged by the legislature, in accordance with the legislative intent, is with respect to undermine the provisions of s 34 and the role that this Court has in s 34 agreements and as I said, to rely on your Honour's sympathies and ask your Honour to disagree with the merit of the matter in circumstances where the Court is not invited by the legislature to consider that merit.
Consideration and conclusion
While I am not convinced that this is solely a matter of "practice and procedure", as Mr To infers, nor that the opportunity will arise for the Lidstones to make submissions on truly merits matters, as he also infers, his submissions, and his interpretations of the relevant cases, are clearly to be preferred over those of Ms Duggan.
I am fortified in this conclusion by Tomko, and by the Chief Judge's discussion of it in Groeneveld. The Leimroths' right to conclude their matter against the Council, by reaching an agreement, must be balanced against the Lidstones' rights to have their environmental and amenity impacts fully and properly weighed in the process. In Xiang, Biscoe J referred to Tomko and Groeneveld, and also to my comment in Sky Design and Concepts Pty Ltd v Pittwater Council (No 4) [2009] NSWLEC 129 (at [38]) that:
It is not necessary for the applicant for review to prove an error of law; there could be changed circumstances or fresh evidence, and there could be an argument resting on the "interests of justice in the circumstances of the case". The court must be satisfied on review that the order (or direction etc.) challenged was "reasonable"
I am, therefore, satisfied that, on review, the Acting Registrar's decision to join the Lidstones as respondents should stand. Her order that each party pay its costs of the joinder hearing was also appropriate and should stand.
The questions raised on the review motion were never free of doubt, nor beyond argument, so I consider that all parties should pay their own costs of that hearing as well.
The substantive matter and its s 34 process are part-heard before Morris C, so I will remit the matter to the Acting Registrar for the making of further directions.
Orders
I make the following orders:
(1) The Notice of Motion, filed by the Applicants on 10 October 2012, is dismissed.
(2) The Orders made in this matter on 10 October 2012 by the Acting Registrar, on the issues of joinder and costs, are confirmed.
(3) All parties are to pay their own costs of the motion of 10 October, and the hearing of 25 October 2012.
(4) The matter is returned to the Acting Registrar, to be listed before her on 30 November 2012, for the giving of further directions regarding its disposition.
Decision last updated: 22 November 2012
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