Mahogany Ridge Developments Pty Ltd v Port Stephens Council

Reported Decision: 135LGERA 60

Land and Environment Court

of New South Wales

CITATION:

Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555

PARTIES:

APPLICANT
Mahogany Ridge Developments Pty Ltd

RESPONDENT:
Port Stephens Council

FILE NUMBER(S):

10526 of 2004

CORAM:

Bignold J

KEY ISSUES:

Practice and Procedure :- Application for joinder by Department of Defence-defended development appeal for tourist development-aircraft noise impact on proposed development.

LEGISLATION CITED:

Land and Environment Court Act 1979, s 39A

CASES CITED:

Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293;
Lowy v The Land and Environment Court (2002) 123 LGERA 179

DATES OF HEARING:

23/09/2004

DATE OF JUDGMENT:

09/30/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M C Fraser, Barrister
SOLICITORS
Norman Waterhouse Incorporating Taylor Kelso

RESPONDENT:
Mr J Maston, Barrister
INTERVENOR:
Mr A Galasso, Barrister

SOLICITORS
Respondent: Sparke Helmore
Intervenor: Philips Fox

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

30 September 2004

10526 of 2004 MAHOGANY RIDGE DEVELOPMENTS PTY LTD v PORT STEPHENS COUNCIL

JUDGMENT

:

1 By Notice of Motion filed 23 September 2004, the Commonwealth of Australia seeks to become a party to pending class 1 proceedings which were commenced on 7 May 2004 by way of an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the decision of the Council refusing the Applicant’s development application for the establishment of a major eco-tourist resort development on land situate at Duns Creek Road, Duns Creek, being land that is included in the Rural 1(a) Zone under the Port Stephens Local Environmental Plan 1987.

2 The Commonwealth’s application for joinder is opposed by the Applicant, but is supported by the Council.

3 The joinder application is made pursuant to the Land and Environment Court Act 1979, s 39A which provides as follows:

39A Joinder of parties in certain appeals
On an appeal under section 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.

4 The Council’s refusal of the Applicant’s development application as notified to the Applicant stated the following reasons for its refusal:

1. The impact of the proposed development is considered to be unacceptable in relation to the:
a) amenity of the locality which would be affected b the traffic generated through patron visitation, delivery vehicles, employees and the protracted construction phase.

b) the…