Manderrah Pty Ltd v Woollahra Municipal Council (No 2)
[2013] NSWLEC 115
•19 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Manderrah Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 115 Hearing dates: 19 July 2013 Decision date: 19 July 2013 Jurisdiction: Class 1 Before: Pepper J Decision: Contentions 1, 2 and 5 of the second respondent's Statement of Contentions are struck out.
Catchwords: PROCEDURE: application to strike out contentions from Statement of Contentions in Class 1 proceedings - third party sought to be joined as a respondent to the proceedings to raise two specific contentions - order for joinder made - later respondent sought to agitate all issues relied upon by original parties to the proceedings and to file evidence in relation to all contentions relied upon by original parties - whether unfair to original parties to allow joined party to participate in the proceedings in this manner - contentions struck out. Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 59, 60, 61
Land and Environment Court Act 1979, ss 38(2), 39A
Land and Environment Court Rules 2007, r 3.7
Uniform Civil Procedure Rules 2005, rr 13.4(1)(c), 14.28(1)(c)
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004Cases Cited: Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205
Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313
Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293
Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 LGERA 179
Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27
Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361
Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 13
The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205Category: Interlocutory applications Parties: Manderrah Pty Ltd (Applicant)
Woollahra Municipal Council (First Respondent)
Mr Giles Edmonds (Second Respondent)Representation: Mr I Hemmings (Applicant)
Mr S Simington (Solicitor) (First Respondent)
Mr P McEwen SC (Second Respondent)
Susan Hill & Associates Lawyers (Applicant)
Lindsay Taylor Lawyers (First Respondent)
HWL Ebsworth Lawyers (Second Respondent)
File Number(s): 10004 of 2013
Ex Tempore Judgment
Manderrah Applies to Strike Out Parts of a Statement of Contentions Filed on Behalf of a Recently Joined Party
The issue in this application may be stated succinctly, namely, whether Mr Edmonds who was recently joined as a party to these Class 1 proceedings should have parts of his Statement of Contentions filed on 24 June 2013 struck out.
The applicant to the proceedings, Manderrah Pty Ltd ("Manderrah"), submits that such an order should be made in respect of those parts of the Statement of Contentions that did not form the basis upon which Mr Edmonds sought, and was granted, leave to be joined as a party. Manderrah acknowledges that the joinder was not made on terms limited by the Court.
In my opinion, to allow the hearing to proceed on the Statement of Contentions filed by Mr Edmonds would be unfair to Manderrah and would result in additional hearing time and additional costs being incurred. In short it would be contrary to the overriding purpose contained in s 56 of the Civil Procedure Act 2005 ("the CPA").
Background Facts
In order to understand the decision reached above, it is necessary to briefly set out the background facts giving rise to the application. These facts were summarised by Pain J in Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27 at [1]-[4] and [6]-[10].
In summary, these Class 1 proceedings relate to a development application under the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 for 15 self-contained residential units, including the refurbishment of a heritage cottage, at 112-121 Queen Street, Woollahra.
Proceedings Before the Acting Registrar
Mr Edmonds applied to the Acting Registrar of the Court to be joined as a party to the proceedings.
Before the Acting Registrar Mr Edmonds argued that he should be joined because the material relied upon by Manderrah and the consideration given by Woollahra Municipal Council ("the council"), the first respondent in these proceedings, were inadequate in relation to the issues of traffic and groundwater, and therefore, it was necessary for him to be joined as a party so that these issues were properly ventilated before the Court.
In relation to the issue of traffic, Mr Edmonds noted that traffic and parking were not identified as contentions in the council's Statement of Facts and Contentions filed in the proceedings and that Manderrah's expert evidence on traffic and parking (a report from GTK Consulting dated May 2012) was deficient insofar as it concluded that the traffic volumes were minimal and would have no impact on existing traffic flows, intersection capacities or neighbourhood amenity.
Mr Edmonds was also critical of the hydrology evidence filed on behalf of Manderrah, particularly with respect to groundwater seepage. Although the council's Statement of Facts and Contentions noted difficulties with the construction of the basement level of the proposed development, insofar as it would intercept and impede natural groundwater flows, impact upon the water table, and therefore, necessitate diversion around the basement, Mr Edmonds nevertheless submitted that unless he was joined as a party, the issue of groundwater would not be sufficiently addressed by the parties.
These submissions were accepted by the Acting Registrar, particularly in relation to traffic, and an order for joinder was made (Manderrah Pty Ltd v Woollahra Municipal Council, Acting Registrar Walton, unreported, 1 March 2013, at [33]-[34]).
A fair reading of the Acting Registrar's decision clearly reveals that the application for joinder was premised exclusively on the issues of traffic and groundwater by Mr Edmonds and it was therefore only these two issues that were addressed by Manderrah in opposing the joinder application at the time and it was these two issues that the Court addressed in exercising its discretion to accede to the joinder application.
Thus, having regard to matters contained in s 39A of the Land and Environment Court Act 1979 ("the LEC Act") and the principles articulated in decisions such as Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361; Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205; The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 and Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 13, the Acting Registrar ordered that Mr Edmonds be joined as a party. This was because (at [31]):
The applicant has said he wishes to raise groundwater and traffic issues, these are relatively confined issues and should not unduly cause additional expenses or time to be incurred.
Proceedings Before Justice Pain
Manderrah sought review of the Acting Registrar's decision before a judge of this Court. The review was dismissed by Pain J (Manderrah).
Because the review of the Acting Registrar's decision was a hearing de novo, the evidence before the Acting Registrar was relied upon in the application before her Honour in addition to supplementary evidence. All of the evidence relied upon by Mr Edmonds and Manderrah, and indeed all of the submissions put by the parties, dealt solely with the issues of traffic and groundwater.
As Pain J noted (at [15]):
15 Mr Edmonds relies on two issues to found this application relying on s 39A(a), traffic and hydrology. The Council has not raised traffic impacts at all in the statement of facts and contentions. This is a real issue which will not be addressed at all by the Council, the issue being as identified in the McClaren report dated 20 February 2013.
And later her Honour observed (at [19]):
19 Mr Edmonds relies primarily on s 39A(a) on the basis that the two issues identified will not be considered at all or not sufficiently unless Mr Edmonds is joined as a party. Mr Edmonds wishes to be joined as a party so that he can place before the Court at the merits hearing the reports of Mr Grey on lack of information about potential hydrological impacts and Mr McClaren on traffic impacts in the surrounding narrow streets and raise the issues identified therein as contentions in this case. These are said to be significant issues with potential for serious environmental/amenity consequences to Mr Edmonds and other neighbours if not properly considered by the Court. Therefore it is also in the public interest to allow Mr Edmonds to participate as a party, relying on s 39A(b)(ii).
Again it was therefore tolerably clear that the only issues forming the basis of the review before Pain J were those of traffic and groundwater.
Although there was a suggestion that the ambit of the joinder of Mr Edmonds was raised before Pain J and then abandoned by Manderrah, and therefore, Manderrah ought to be estopped from bringing the present application, no cogent evidence was put before the Court permitting it to entertain the allegation.
Application to Strike Out Contentions
The offending contentions of Mr Edmonds' Statement of Contentions are as follows:
1. The Second Respondent adopts Contentions 1, 2 and 4 of the First Respondent's Amended Statement of Facts and Contentions filed on 7 June 2013.
2. Excavation and construction impacts
The Second Respondent adopts Contention 3 of the First Respondent's Contentions filed on 7 June 2013 and in addition raises the following Contentions.
...
5. Amenity Impact
The bulk, scale and location of the development on the site impacts on the outlook and sun access of neighbouring properties.
The Statement of Facts and Contentions was, unsurprisingly signed by a groundwater consultant, a traffic consultant and, surprisingly, Mr Michael Harrison, a town planner, urban designer and architectural consultant.
Contentions one to four of the council's Amended Statement of Facts and Contentions, filed 7 June 2013, comprises all of the council's contentions in the proceedings. That is to say contentions concerning height, number of storeys and bulk and scale (contention one); the impact upon the heritage significance of adjoining heritage items and the Woollahra heritage conservation area (contention two); the excavation and construction impacts of the development (contention three); and accessibility issues, including inadequate access to the development from Queen Street (contention four).
These contentions make it plain that Mr Edmonds, despite his representations to the Court before the Acting Registrar and Pain J, now seeks to actively raise and participate in all of the contentions relied upon by the council, in addition to the issues of traffic and groundwater.
Because Mr Edmonds criticises Manderrah for its delay in bringing its strike out application, the chronology of the filing of this Notice of Motion is important. It is as follows:
(a) immediately following the review by Pain J on 7 March 2013, the matter proceeded to a s 34 conciliation conference commencing that day. The s 34 conference convened on three further occasions. On each occasion the only experts that Mr Edmonds was assisted by were hydrology and traffic experts. There were no experts dealing with anything other than the issues raised by him in support of his joinder application;
(b) upon termination of the s 34 conciliation process, directions were made, by consent, for the future conduct of the proceedings on 16 May 2013. These directions included an order that the council file a Statement of Facts and Contentions by 6 June 2013 and that Mr Edmonds file a Statement of Contentions by 13 June 2013;
(c) the council filed and served its Statement of Facts and Contentions late, on 11 June 2013, which meant that Mr Edmonds did not file and serve his Statement of Contentions until 24 June 2013;
(d) meanwhile, on 17 June 2013, Ms Susan Hill, the solicitor for Manderrah, emailed the solicitors for the council and Mr Edmonds noting that in relation to an issue concerning the town planning and urban designers, "as this will not include the objector's experts I will communicate with Stuart [Simington] only to arrange a time";
(e) prompted by this email, on 18 June 2013, Mrs Lesley Finn, the solicitor for Mr Edmonds, responded stating that Mr Edmonds had retained Mr Michael Harrison, a town planner, urban designer and architect. This was the first time that Manderrah was given any notice of Mr Harrison's proposed involvement in the proceedings;
(f) on 19 June 2013, in correspondence with Mr Simington copied to Mrs Finn, Ms Hill noted that in relation to Mr Harrison's involvement "we reserve our position and note that we have not yet been provided with the intervenor's [Mr Edmonds'] Statement of Contentions";
(g) as noted above, on 24 June 2013, Mr Edmonds served an unfiled copy of his Statement of Contentions on the other parties and, on 25 June 2013, he served a filed copy;
(h) on 27 June 2013, Ms Hill informed the council and Mr Edmonds that Manderrah would be filing a notice of motion to strike out the additional contentions relied upon by Mr Edmonds in the Statement of Contentions; and
(i) on 28 June 2013, the notice of motion was filed and served.
Manderrah submits that by adopting contentions one to four of the council's Amended Statement of Facts and Contentions and by raising an additional amenity impact contention, Mr Edmonds proposes to raise matters that go far beyond the issues forming the basis of his joinder. Mr Edmonds now seeks to participate in the totality of the original parties' contentions, including calling his own expert evidence in respect of all issues. To participate in the proceedings in this way would not, Manderrah submits, be fair given the circumscribed bases put by Mr Edmonds before the Acting Registrar and Pain J justifying the joinder order and given that apart from the issues of traffic and groundwater, the council is an adequate contradictor in relation to all other contentions. Therefore, Manderrah contends, Mr Edmonds should be restricted to dealing only with contentions concerning groundwater and traffic.
Mr Edmonds submits that the constraint sought by Manderrah should be refused because:
(a) first, the application for joinder was as a party absent any limitation and none was ordered by the Court in granting him leave to join;
(b) second, there has been unreasonable delay on the part of Manderrah in bringing this application;
(c) third, the matter was not listed for hearing until 19 August 2013, Mr Harrison has completed his report and there was therefore ample time for the parties to respond to it; and
(d) fourth, resident objectors can bring material before the Court and the council, and can address the Court on all aspects of the Class 1 proceedings and Mr Edmonds was merely seeking to do formally what a resident objector would be permitted to do informally.
The Power to Strike Out the Contentions
No power to strike out the impugned contentions was identified in the application before the Court. In its written submissions Manderrah referred to:
(a) the power of the Court to strike out any claim for relief that is an abuse of process contained in r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 ("UCPR"); and
(b) the power to strike out the whole or any part of a pleading that is an abuse of process in r 14.28(1)(c) of the UCPR.
Proceedings in Class 1 merit appeals are commenced by way of originating process that does not particularise the claim. The scope of the proceedings are framed not by an applicant, but by a respondent in its Statement of Contentions. The Statement does not form part of the originating process by which the proceedings are commenced.
As a consequence, the Court's power to strike out contentions is not limited to either of the rules set out above, but includes the case management powers of the Court pursuant to ss 56 to 61 of the CPA.
It follows that the Court does not need to be satisfied that an abuse of process would result if the contentions were allowed to stand. On the evidence before the Court, the conduct of Mr Edmonds in seeking to amplify his participation in the proceedings does not rise so high as to amount to an abuse of process.
However, there is much force in the submission of Manderrah that "if Mr Edmonds is now able to raise additional issues, it makes a mockery of the joinder process pursuant to s 39A. In order to obtain 3rd party rights of appeal, an intervener need merely find some issue that is not raised by the Council." Hyperbole aside, I agree that, for reasons elaborated upon below, the intention of s 39A would be thwarted if Mr Edmonds' Statement of Contentions were permitted to remain in their present form.
Principles to Be Applied When Considering an Application for Joinder
Section 39A of the LEC Act provides as follows:
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.
The applicable legal principles were summarised by Pain J in Manderrah, which I respectfully and gratefully adopt, as follows (at [13]-[14]):
13 The principles applicable to applications under s 39A were generally agreed by the parties. The Court was referred to Morrison Design v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 at [42] - [43], [51] - [54] where Preston J identifies the role of public participation in planning processes and the need to be mindful of the limited appeal rights afforded third parties under the Environmental Planning and Assessment Act 1979.
14 The multiplicity of parties is undesirable, per The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 at [34]. Mr Edmonds cannot rely only on the fact that the Council does not raise an issue in proceedings in order to succeed per Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293. An application under s 39A is a two stage process to determine firstly, whether s 39A is met then whether the exercise of discretion justifies an order Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44].
Unlike a 'Double Bay Marina' order pursuant to s 38(2) of the LEC Act (Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313), once joined as a party Mr Edmonds enjoys full rights of participation in the proceedings on all issues (see Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; (2002) 123 LGERA 179 and Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293). Thus Mr Edmonds is entitled to rights of appeal; is permitted to cross-examine any witness on any issue; and is able to take the benefit, or shoulder the burden, of any costs order. Does this therefore preclude Manderrah's present application? In the circumstances of this case, in my view, it does not.
While it is true that the joinder of Mr Edmonds as a party to the proceedings was not stated to be confined in any way by the Acting Registrar when making the order (see Manderrah at [34]), it is patent on the face of the decisions of both the Acting Registrar, and again on review before Pain J, that the only bases for permitting joinder were to enable Mr Edmonds to address the Court on the two issues of groundwater and traffic. It was the confined nature of these issues that meant that no undue additional expense or time would be incurred by permitting the joinder. It was the confined nature of these issues that informed the exercise of the Court's discretion to make the joinder order, both by the Acting Registrar and by Pain J.
This approach is consistent with the text of s 39A of the LEC Act. That is to say, initially Mr Edmonds raised issues that would not be likely to be sufficiently addressed by either Manderrah or the council if he was not joined as a party. This is in stark distinction to the contentions Mr Edmonds now seeks to ventilate by contentions one, two and five of his Statement of Contentions. These contentions raise issues that will be sufficiently addressed by either the council or Manderrah. To permit Mr Edmonds to now rely on these additional contentions would be to subvert s 39A(a).
It would also subvert s 39A(b) of the LEC Act. It is neither in the interests of justice nor in the public interest for Mr Edmonds to now raise contentions that he did not identify before the Acting Registrar or Pain J, given that neither Manderrah nor the council were afforded the opportunity to address them in order to resist his joinder application. Had Mr Edmonds sought initially to be joined as a party to contest all of the issues and contentions he now seeks to raise, it may be reasonably inferred that it is less likely that the joinder order would have been made. The Court must be able to have confidence in the veracity of representations made by third parties seeking joinder pursuant to s 39A of the LEC Act.
Furthermore, having regard to the chronology above, I do not consider that the delay, if indeed any, is such that Manderrah's application should be refused. In my view Manderrah acted with sufficient diligence and promptness. There is every reason to believe that until 18 June 2013, if not 24 June 2013, Manderrah understood that only two issues would be raised by Mr Edmonds. As Manderrah submitted, after 18 June 2013 and up to 24 June 2013, it was entirely possible that Mr Harrison was being retained in order to advise and assist Mr Edmonds in an indirect manner only.
Finally, I do not understand how the contention that Mr Edmonds is seeking to do formally what a resident objector can do informally assists him. To the extent that a resident objector can put expert material before the Court or the council, and can address the Court on all aspects of the proceedings, this only serves to reinforce the conclusion that only limited prejudice will flow to Mr Edmonds if this strike out application is successful.
In my opinion, it would not be "just", "quick" or "cheap" (s 56, informed by ss 57-60, of the CPA) for the additional contentions of Mr Edmonds to remain. It would not be "just" because of Mr Edmonds conduct before the Acting Registrar and Pain J; it would not be "cheap" because the parties would be put to the expense of having to formally respond to Mr Harrison's expert report (particularly having regard to the 'no costs' presumption in r 3.7 of the Land and Environment Court Rules 2007); and it would not be "quick" because additional time would be needed to deal with all of the matters now raised by Mr Harrison. That, in the opinion of Mr Edmonds, there is adequate time for the parties to respond to the matters raised in Mr Harrison's report prior to the hearing commencing on 19 August 2013 is not an answer to this application.
Conclusion and Order
For the reasons above, the order sought in the notice of motion should be granted. The Court therefore orders that contentions one, two and five of the Statement of Contentions filed by Mr Edmonds on 24 June 2013 be struck out.
**********
Decision last updated: 23 July 2013
5
7
5