Naylor Shaw Associates Pty Limited v Sutherland Shire Council

[1999] NSWLEC 11

Land and Environment Court

of New South Wales

CITATION:	Naylor Shaw Associates Pty Limited V Sutherland Shire Council [1999] NSWLEC 11
PARTIES	Applicant: Naylor Shaw Associates Pty Limited
Respondent: Sutherland Shire Council
NUMBER:	10536 of 1998
CORAM:	Cowdroy AJ
KEY ISSUES:	:- joinder of objector - application allowed but confined to legal representation and the calling of lay evidence - absence of exceptional circumstances - concerns of objector previously notified to Council - no real risk of injustice - exclusion of expert evidence of objector
LEGISLATION CITED:	joinder of objector - application allowed but confined to legal representation and the calling of lay evidence - absence of exceptional circumstances - concerns of objector previously notified to Council - no real risk of injustice - exclusion of expert evidence of objector
DATES OF HEARING:	02/04/1999
EX TEMPORE JUDGMENT DATE:	02/05/1999
LEGAL REPRESENTATIVES:	Applicant: Mr K Davenport Alderdice & Clarke Respondent: no appearance N/A

JUDGMENT:

1. By Notice of Motion Ross Howie and Diane Howie (“the Objectors”) seek orders that they be represented in the proceedings which are fixed for hearing before a commissioner on the 15 and 16 February 1999 and be entitled to lead evidence and cross examine witnesses and also to make submissions.

2. The objectors application arises from the circumstance that they reside at No 12 Waterview Avenue, Caringbah which adjoins the site of the subject proceedings, namely 47A Yowie Avenue, Caringbah (“the site”). In respect of the site a development and building application No 981845 has been made seeking approval for alterations and additions to the existing dwelling. There has been considerable correspondence between the parties and an agreement has apparently been reached in principle between the Applicant and the Sutherland Shire Council which is the Respondent. It is the determination of that agreement which has been fixed for hearing before a commissioner on 15 and 16 February 1999.

3. The Applicant and the Respondent do not oppose the intervention of Mr and Mrs Howie on the basis that such intervention is limited to them being represented by counsel at such hearing and being permitted to adduce lay evidence and make submissions. However the application is opposed in so far as Mr and Mrs Howie seek to call expert evidence.

4. Part 8 Rule 8(1)(b) of the Supreme Court Rules 1970 which is adopted by the Rules of this Court enables a party to be joined in the proceedings to ensure that all matters in dispute are effectually and completely determined. Different approaches have been adopted from time to time in order to ensure that justice is done to all parties. In Double Bay Marina Pty Limited v Woollahra Municipal Council (1985) 54 LGRA 313 the Court considered that there were special circumstances which would entitle the views of objectors to be furnished independently to the Court. The Applicants were not however joined as parties. In Humphrey & Edwards Pty Limited v Woollahra Municipal Council (unreported, proceedings No 10504 of 1998) the circumstances justified separate representation, as virtually no opportunity had been afforded to the objectors to have their submissions heard by the respondent Council.

5. The overriding matter for consideration is the risk of any injustice being occasioned to an objector and the requirement of Section 38 of the Land and Environment Court Act 1979 (“the Act”) which provides that 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 the Act permit. The Act envisages that such proceedings will not be rendered unduly complex.

6. In addition to granting the objectors the right to attend the hearing, be represented by counsel, adduce evidence of lay witnesses and to make submissions, permission to call the expert evidence would be tantamount to rendering them parties. Such would defeat the object of Section 38 as cited above and would also be contrary to the concept that only those cases in which designated development are concerned entitle third parties to appear. No such privilege is granted in the case where the development is not designated development. Unless exceptional circumstances are shown to exist which could lead to an injustice, the Court should decline such request.

7. In the present circumstances it would inappropriate to allow a third party to adduce expert evidence where such party has had extensive correspondence with the Council concerning the development, and where the opportunity to address Council on two occasions has been already granted. Further, the proposed expert evidence is of a kind that could readily be dealt with by submissions by a legal practitioner before the commissioner.

8. The Court accordingly orders that:

1. Ross Howie and Diane Howie be represented in the proceedings by a legal practitioner and that they be entitled to adduce lay evidence and make submissions but not adduce expert evidence.

2. No order as to costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 2 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM

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