O'Neill & Anor v Kimhi & Ors
[2008] SASC 109
•24 April 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
O'NEILL & ANOR v KIMHI & ORS
[2008] SASC 109
Judgment of The Honourable Justice Debelle
24 April 2008
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL
Joinder – application by neighbours to be joined to planning appeal - whether joinder in the interests of justice – whether neighbours have common interest with the Council – relevant factors – appeal allowed – held, neighbours to be joined as parties.
Development Act 1993 s 38(14), s 86(1)(a), s 86(1)(b), s 88(2)(c); Environment, Resources and Development Court Act 1993 s 16, s 17, referred to.
OneSteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67; Pitt v Environment, Resources and Development Court (1995) 66 SASR 274, applied.
Palata Investments Limited v Burt & Sinfield Ltd [1985] 1 WLR 942; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd (1990) 20 NSWLR 221; Burke v Garsden (10 March 1993, unreported, Supreme Court of SA, Judgment No S3865), considered.
O'NEILL & ANOR v KIMHI & ORS
[2008] SASC 109Land and Valuation Division
DEBELLE J. This is an appeal against a decision of a judge of the Environment, Resources and Development Court dismissing an application by neighbours to be joined as parties to an appeal in that court.
This appeal was heard on 18 April. I allowed the appeal for reasons to be published. I made an order joining the appellants to the appeal in the Environment, Resources and Development Court and other incidental orders. These are the reasons for those orders.
The appeal was lodged out of time. I extended the time within which to appeal. It is convenient to consider the merits of the appeal before dealing with the reasons for granting the extension of time.
The Kimhis’ Proposal
Mr and Mrs Kimhi (“the Kimhis”) own land at 70 Seaview Road, Tennyson. Their land is within the area of the City of Charles Sturt (“the Council”).
The appellants, Mr and Mrs O’Neill (“the O’Neills”) own land at 68 Seaview Road, Tennyson. They reside in a single storey detached dwelling on that land. Their land abuts the southern boundary of the Kimhis’ land.
On 13 June 2007 the Kimhis applied to the Council for provisional development plan consent to construct two large semi-detached dwellings upon their land at 70 Seaview Road. It is a large development and covers most of the Kimhis’ land. Their land has a frontage to both Military Road and Seaview Road and slopes down from Seaview Road to Military Road. On the Military Road frontage, the building will be three storeys high with a roof deck on top of the third level. On the Seaview Road frontage it will be two storeys high with a roof deck on top of the second level. It will be built very close to both side boundaries. The proposed development is along almost the entire length of the O’Neills’ land.
The Council classified the proposed development as a Category 2 development. It described it as “two four-storey semi-detached dwellings, and garages and retaining walls”. The Council gave public notice of the development application and in that process gave notice to the O’Neills as adjoining owners. The O’Neills lodged a representation opposing the proposed development.
The Kimhis Appeal
On 15 January 2008, the Council resolved to refuse development plan consent. Its reasons were expressed in these terms:
That pursuant to Section 33 of the Development Act1993, Development Plan Consent be REFUSED to Development Application 252/1415/07 on the basis [that] the bulk, height, scale and extent of overshadowing and excavation proposed is unacceptable and would result in detrimental impact to the adjoining southern property. The proposal also conflicts with other principles and objectives contained in the Charles Sturt Development Plan.
On 29 January Mr and Mrs Kimhi appealed to the Environment, Resources and Development Court (“the Environment Court”) against the decision refusing development consent.
An Order Refusing Joinder
On 6 February 2008 the O’Neills applied to be joined as parties to the appeal in the Environment Court. The application for joinder was heard on 21 February 2008 by a judge of the Environment Court. On 27 February the judge refused the application. The O’Neills have appealed to this court from that decision.
While the appeal to this court was pending, the Kimhis proceeded with their appeal in the Environment Court. A Commissioner held a conference pursuant to s 16 of the Environment, Resources and Development Court Act 1993 immediately after the hearing of the joinder application on 21 February. The O’Neills were permitted to be present at that conference. The matter was not then resolved. A directions hearing occurred on 4 April and the conference was re-listed for 8 April. On 15 April a Commissioner of the Environment Court made an order with the consent of the Council approving amended plans of the proposal subject to certain conditions. The O’Neills were not parties to the proceedings after 28 February.
The Power to Join Parties
The power of the Environment Court to join persons as parties to proceedings including appeals is provided in s 17 of the Environment, Resources and Development Court Act 1993. Section 17 is in these terms:
17(1) The Court may, by order, join a person as a party to any proceedings (other than criminal proceedings).
(2) A commissioner may not make an order under subsection (1) except –
(a)on the application of, or with the consent of, the party to be joined; or
(b)with the concurrence of a Judge.
(3) An order under subsection (1) may be made on an application without notice to any person.
(4) Subject to the rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings –
(a)dismiss or determine any proceedings that appear –
(i)to be frivolous of vexatious; or
(ii) to have been instituted or prosecuted for the purpose of delay or obstruction, or for some other improper purpose;
(b)after hearing the applicant in the proceedings, find in favour of the respondent without hearing the respondent;
(c) give summary judgment against a party –
(i)who obstructs or unnecessarily delays the proceedings; or
(ii)who appears to be continuing to participate in the proceedings for the purpose of delay or obstruction, or for some other improper purpose; or
(iii) who fails to attend any proceedings or fails to comply with a regulation, or a rule or order of the Court.
(4a) If the Court takes action under subsection (4), then the Court should also make an order for costs against the party against whom the action is directed unless the Court is of the opinion that there is some good reason for not making an order in the circumstances of the particular case.
(4b) The Court may, in making an order under subsection (4a), determine that the costs will be determined or settled –
(a)as between party and party in accordance with the scale prescribed for the purpose; or
(b) as between solicitor and client.
For the purpose of this appeal it is not necessary to notice subsections (5) and (6) of s 17.
It is necessary also to note the terms of s 88(2)(c) of the Development Act 1993 which came into operation on 26 April 2007. Section 88 invests the Environment Court with certain powers when hearing proceedings. Subsection (2)(c) concerns an application for joinder. It is in these terms:
(2)(c) the Court may, in dealing with an application from a person to be joined as a party to the proceedings (other than the Crown or a person who was entitled to be given notice of a decision in respect of a Category 3 development under section 38 (if relevant)), determine not to grant the application –
(i) on the ground that the Court is not satisfied that the person has a special interest in the subject-matter of the application; or
(ii) on the ground that, whatever the interest of the person may be, the Court is not satisfied that the interests of justice require that the person be joined as a party; or
(iii) on any other ground determined to be appropriate by the Court.
Section 88(2)(c) invests the Environment Court with a wide discretion. The court has power to refuse an application for joinder if the applicant does not have a special interest in the application or if, whatever the interest of the applicant, the court is not satisfied with the interests of justice require the applicant be joined, or for any other ground determined by the court to be appropriate. Notwithstanding the width of that discretion, it must be exercised within the scope and ambit of the Development Act, the Development Regulations and the Development Plan.
It is to be noticed that s 88(2)(c) makes provision for joinder where the development application is for a development other than a Category 3 development. It applies, therefore, in the case of both Category 1 and Category 2 developments. A person who has made a representation in opposition to a Category 3 development is entitled to appeal against a decision of a planning authority granting development consent: s 86(1)(b) and s 38(14) of the Development Act. If development consent is refused, the person who made the development application may appeal to the Environment Court pursuant to s 86(1)(a) of the Development Act. In that case, the Environment Court exercises its power under Rule 5.4 of its Rules of Court and gives notice of the appeal to those who made representations and an application may be made to join the person to whom notice is given. Thus, the position of applicants and those who made representations in opposition to a proposed development in respect of Category 3 development is catered for although s 88(2)(c) may also operate in the case of a developer’s appeal.
The terms of s 88(2)(c) do not create a presumption against joinder in the case of developments that are Categories 1 or 2. Instead, they state that an applicant for joinder will not succeed if he fails to establish a special interest or fails to persuade the court that the interests of justice require that he be joined. In a particular case, it might be sufficient if he satisfies the court of only one of those factors.
Prior Decisions
Before s 88(2)(c) came into operation, two decisions of this court had considered the grounds on which it was appropriate to join a party to an appeal in the Environment Court. In Pitt v Environment, Resources and Development Court (1995) 66 SASR 274 the issue was considered by the Full Court. Doyle CJ held (at 276) that an applicant for joinder had to satisfy the court that he had a sufficient interest in the subject matter of the appeal and that in all the circumstances it was appropriate that he be joined. Duggan J, with whom Nyland J agreed, held (at 281) that the applicant had to have a genuine interest in the subject matter of the appeal. He added that such an interest would arise if an order could be made on the appeal that would prejudicially effect the interests of the applicant. It was held in that case that the proposed development had a potential to effect the amenity of the applicants to a significant degree and may well diminish the value of their neighbouring residential properties. The Full Court allowed the applicant’s appeal against an order refusing joinder.
In OneSteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67 I followed and applied the decision in Pitt:
20The reasoning of the Full Court in Pitt v Environment, Resources and Development Court provides some guidance to the criteria to be applied when considering whether to order joinder under s 17. In that case a group of residents in North Adelaide were opposing extensions to a hospital. The residents resided in close proximity to that hospital. The hospital had applied for development consent from the City of Adelaide to make the extensions. The City of Adelaide had received submissions from the residents which included reports of independent consultants. The Council refused to grant development consent. The hospital appealed to the Environment Court. The residents applied to be joined as parties to the appeal pursuant to s 17. The Environment Court refused to join them. That order was reversed by the Full Court on appeal. The Full Court held that the residents should be joined because of their genuine interest in the appeal, the fact that they would be prejudiced by the proposed development, the extent of their involvement in the development application, the nature of the issues they would raise on the appeal and the fact that it was unlikely that their participation would unduly prolong the appeal. In his reasons Doyle CJ made the following observations on the grounds for joinder:
The power to make an order for joinder under s 17 involves making a judgment in the light of the facts of the case before the ERD Court. Important factors in any such case will be the nature and strength of the interest of the applicant for joinder in the decision under appeal, the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the ERD Court and whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the ERD Court. It will also be appropriate for the ERD Court to consider the impact upon the proceedings of the joinder. The Court can and should consider the interests of the parties before it as of right and the public interest in the prompt and efficient dispatch of proceedings. In addition, of course, there will in each case be other factors particular to the case.
In the present case the law applicable to the resolution of the substantive dispute is the City of Adelaide Development Control Act 1976 (SA). That Act gave the appellants before us no right of appeal and there was no power to join them as party to an appeal. An order for joinder in favour of the appellants necessarily has an effect on proceedings before the ERD Court. The interests represented in the proceedings are no longer confined to the applicant for planning approval and the planning authority. But that is the inevitable consequence of any order for joinder. The potential for such a change in the nature of the proceedings is a necessary consequence of the conferral of the power to join.
In my opinion the impact of an order for joinder upon the proceedings is not a reason for taking a narrow view of the circumstances in which an order for joinder can be made. The test which an applicant for joinder must pass necessarily embraces both the establishment of a sufficient interest and the establishment of factors which make it appropriate to make an order for joinder in the particular case. On this approach, the making of an order for joinder does not mean that a legislative scheme conferring no third party rights for appeal has been converted into a scheme in which such rights are available. The true position is that a third party still cannot institute an appeal, and can be joined only if in the particular circumstances of the case there are factors making it appropriate to do so. Joinder will never be made as of course.
In particular, in my opinion, it is not correct to reason that because an order for joinder permits an involvement in the proceedings which under the City of Adelaide Development Control Act was not permitted, a restrictive approach should be taken to the making of an order for joinder.
I consider that his Honour did take an unduly restrictive approach to the scope of the power which he had. In my opinion his statement that the right to participate must “be limited to special circumstances”, and what he said in explanation of that approach, indicates too narrow an approach to the power. In my opinion his Honour appears to have placed too much emphasis upon the fact that the City of Adelaide Development Control Act did not provide for rights of appeal for third parties or for rights of joinder. It appears to me that his Honour envisaged joinder only in exceptional cases. For the reasons which I have indicated, that is not the correct approach. As I have already explained, it would be equally wrong to make an order for joinder simply on the basis of an interest which would give standing for judicial review or an interest which would pass the test for standing approved by the High Court in Australian Conservation Foundation v Commonwealth (1979) 146 CLR 493.
Three aspects of those reasons require emphasis. The first is that an order for joinder should not be made simply on the basis of an interest sufficient to give standing for judicial review. Secondly, regard will be had to the nature and strength of the interest in the decision under appeal and to the contribution which the applicant for joinder is likely to make to a proper resolution of the issues. The third is a reflection of the second. It is whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the persons already before the court. It is not enough for the party seeking to be joined to say it is able to call evidence. It must be demonstrated that the evidence is the kind of evidence which cannot be adduced by the parties already before the court and that the evidence is relevant to the issues before the court. At the same time, the court should not take an unduly restrictive approach to the question of joinder. The issue should not be approached in a rigid or inflexible manner. It is necessary to note some other factors which bear on the question whether a person should be joined.
I later emphasised at [25] that regard will be had to the interests of justice and the due administration of justice and at [27] that regard must be had to the statutory scheme and the manner in which the appeal came to the Environment Court. In the result, it was the statutory scheme in that case as well as the fact that OneSteel held a licence that caused me to uphold the appeal against an order joining an interest group as a party to the appeal in the Environment Court.
In the course of my reasons in OneSteel at [22], I said that the mere fact that a person claims to be in a better position to call relevant evidence is insufficient to justify the joinder of that person as a party. On further consideration, that proposition was expressed too widely. It would have been better if I had stated the proposition in these terms, “The fact that a person claims to be in a better position to call relevant evidence is, not of itself, sufficient to justify the joinder of that person as a party”. Expressed in that way, it is clear that the ability to call evidence and make submissions is relevant but is not necessarily a sufficient basis on which to order joinder. However, if the applicant has a special interest in the subject matter of the appeal and is also able to call evidence and make submissions, that is likely to constitute sufficient grounds for joinder. As is implicit in my reasons in OneSteel and as Doyle CJ said in Pitt, every case will depend upon its own facts and circumstances.
Section 88(2)(c) picks up two of the criteria identified in Pitt and in OneSteel, namely, special interest and the interests of justice. In my view, this appeal can be determined by reference to those two criteria.
A Special Interest
There can be no doubt that the O’Neills have a special interest in the subject matter of this appeal and the judge held that they had that special interest. They reside in a dwelling on land that adjoins the proposed development. The proposed development is a Category 2 development that required the Council to give notice to them. They took up the opportunity of being heard by the Council in relation to the proposed development. They lodged a representation opposing the development. They appeared before the Council to voice their opposition. The proposed development is of a height and bulk that will cause overshadowing of their building. The O’Neills hold a development consent for alterations and additions to their dwelling which are designed so as to gain the full benefit of light and warmth on the northern aspect. The O’Neills allege that the building proposed by the Kimhis will overshadow their dwelling throughout the year and deny them the benefit of their proposed alterations and additions. The Kimhis’ proposal also involves excavation of their land and that has a potential to cause subsidence on the O’Neills’ land if adequate precautions are not taken. The Council refused the development application because of overshadowing of the O’Neills’ land. On any view, the O’Neills will be directly affected by the proposed development. They have an immediate and special interest in the subject matter of the appeal. These same considerations also mean that it is in the interests of justice that they be joined. These are sufficient reasons why the O’Neills should have been joined as parties.
It might be added that, as a general rule, an adjoining neighbour will always have a sufficient interest in an application to justify joinder.
The judge in the Environment Court held that, while the appellant had a special interest in the subject matter of the appeal, the interests of justice did not require that the O’Neills be joined. She gave the following reasons:
In summary, it is obvious that the applicants have a very strong interest in the decision under appeal and therefore the outcome of the proceedings. They do not want to see the decision overturned, and the evidence is clear that they have maintained that strong interest from the time they lodged their representation. Secondly, their interest is a significant personal interest but also a planning interest; there will be consequences for them and their property should the decision under appeal be overturned and a consent granted and the development proceed. However, their case coincides with the Council’s case or at least part of what I expect will be the Council's case, having regard to the Council’s reasons for refusal. The Council will call Mr O’Neill to give evidence as part of its case (if he agrees). The applicants have not been able to demonstrate that the material to be advanced by them at the hearing will be in addition to material that will be put before the Court in any event, by one of the existing parties, the respondent Council. I have to conclude that the applicants will not be able to add to the case for dismissing the appeal beyond that which it is expected will be made by the respondent Council. If the applicants were to be joined the process might well be lengthened by the presence of an additional party, but with a net result that no additional assistance would be provided to the Court. The factors that would lead the Court to conclude that it is in the interest of justice that the applicants be joined, have not been made out.
Earlier in her reasons, the judge had found that Mr O’Neill had not been able to inform her of the evidence that he intended to call. However, it is apparent from the transcript of the hearing of the application that Mr O’Neill intended that he and his wife would be represented by counsel and that he had not had an opportunity to instruct his legal advisor and obtain advice as to the evidence they intended to adduce. In addition, Mr O’Neill told the judge that the overshadowing was the major issue.
It is plainly desirable that an applicant for joinder should be able to inform the court in clear terms of the grounds on which he or she seeks to be added as a party and to state how he or she will assist the court in the resolution of the issues. At the same time, the Environment Court must make due allowance for the fact that lay persons frequently appear before it. In this case, the court was told that the O’Neills would be represented. The question of overshadowing was obviously an important issue that directly affected the O’Neills. As the Council’s Development Plan contains provisions intended to prevent overshadowing and to protect access to sunlight in residential zones, the O’Neills seek to argue an issue relevant to the question whether development consent should be granted. On any view, the O’Neills have a real and proper interest in an important and relevant question as to whether development consent should be granted. It was a clear case for ordering joinder. Having recognised as she did that the O’Neills had a significant personal as well as planning interest in the subject matter of the appeal, the judge ought to have joined them as a party. If the judge had a concern as to how they might assist the Environment Court, the judge, knowing that the O’Neills intended to be represented, should have adjourned the application to enable the O’Neills to instruct a legal representative to appear on their behalf and present the case for joinder.
The judge’s reasoning in all likelihood stemmed from a justified concern that the appeal would proceed in an orderly manner and with reasonable expedition. However, both those goals can be achieved by giving appropriate directions after the order for joinder. Where required, the directions can deal with such matters as directing the party joined to lodge within a specified time a statement of the issues he seeks to agitate on the appeal and to advise the nature of the evidence to be called. This appeal highlights the fact that, as a general rule, an adjoining owner should be joined. The question of overshadowing was an obvious issue. Appropriate directions could have been given to require the O’Neills within a specified time to give particulars of their case on that issue and the evidence they intended to call. The O’Neills would then have had an opportunity to obtain legal and planning advice and comply with that direction.
No Common Interest
It is apparent from the extract quoted above that the judge has also relied on her belief that the case for the O’Neills coincided with the case for the Council and that the Council was willing to call Mr O’Neill to give evidence. The judge erred in relying on that ground. There can be little doubt that to some degree the case for the Council might overlap against the case for the O’Neills. However, the Council and the O’Neills do not have a common interest. While the Council’s role in the appeal was to defend its decision and to seek a development which accords with planning principle, the Council might be willing to agree a modified proposal. The O’Neills’ interest was to modify the proposal in a manner satisfactory to them and, if not modified, to oppose the development. There may well be issues where the interests of the O’Neills will conflict with the interests of the Council or, at least, will diverge from them. The judge ought also to have considered the fact that it is not uncommon on an appeal in the Environment Court for a Council to agree a modified development proposal and that the modified proposal is not always to the satisfaction of an adjoining owner. It cannot be assumed, therefore, that the Council will maintain its opposition to the proposed development and continue to represent the interests of the adjoining owner. It is prudent, therefore, to proceed on the footing that the Council might accede to a modification of the proposal so that the preferred course is to join the adjoining owner as a party to the appeal. The judge therefore erred in relying on the asserted common interest. Further, it was not possible to conclude that the O’Neills would not have led additional evidence to that to be adduced by the Council until the O’Neills had outlined through their legal representative the nature of the case they intended to present. The interests of justice therefore required that the O’Neills be joined.
The events following the judge’s ruling dismissing the O’Neills’ application for joinder serve to illustrate the fact that a Council does not always maintain its opposition to a development proposal. In this case, the Council agreed to a modified proposal notwithstanding that it continued to cause overshadowing of the O’Neills’ land. Following the order refusing the application for joinder, the Kimhis made some modifications to their proposed development. After some negotiation with the Council, they submitted a fresh plan. The O’Neills believe that the amendments made by the Kimhis did not effectively deal with the question of overshadowing. The fresh plan was approved by the Council’s Development Assessment Panel. That is the plan which was approved by the Commissioner on 15 April. The Council’s Development Assessment Panel refused the O’Neills an opportunity to make representations opposing Kimhis’ modified development. The events demonstrated that, while the interests of the Council and of the O’Neills might have overlapped at points, they were not common. The Council effectively closed the door to the O’Neills.
The judge also relied heavily on the decision in Onesteel. That was a decision on its own facts and provides little assistance in the case of an application for joinder by owners of land adjoining the land on which a development is proposed.
For these reasons, the judge erred in refusing to join the O’Neills as parties to the appeal. Subject to the question whether it is appropriate to extend the time within which to appeal, the decision should be set aside so that it is necessary for this court to consider afresh the issue in relation to the overshadowing of the O’Neills’ house. The fact that the Council’s Development Plan permits semi-detached dwellings does not have the necessary consequence that this development should be approved. The Development Act recognises adjoining owners have a right to be heard in respect of certain developments. The Council had refused to grant development consent. The issue the O’Neills seek to agitate is relevant and is based on provisions in the Council’s Development Plan. The O’Neills’ interests are not the same as those of the Council. It is manifestly in the interests of justice that the O’Neills should be permitted to present a case in opposition to the proposed development or at least to present some suggestions for modification of it. The question remains whether it is proper to extend the time within which to appeal.
Extension of Time
The court has power to extend the time within which to appeal. In the exercise of its discretion to do so, the court will have regard to the length of the delay, the reasons for that delay, whether there is an arguable case and the extent of any prejudice to the respondent: Palata Investments Limited v Burt & Sinfield Ltd [1985] 1 WLR 942, 946; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd (1990) 20 NSWLR 221 and Burke v Garsden (10 March 1993, unreported, Supreme Court of SA, Judgment No S3865). This list of factors is not exclusive. Those which I have mentioned are relevant to the determination of this application. It must be constantly borne in mind that the discretion is a wide one and that, at the end of the day, the court will be concerned to do what the interests of justice require.
The appeal should have been instituted by no later than 21 March 2008. The judge had delivered her decision on 27 February 2008. The practice in the Environment Court is not to require parties to attend when a judgment is delivered. Instead, the court sends a copy of the judgment and orders by post to the parties. The O’Neills received a copy of the reasons for judgment on 29 February 2008. The time within which the appeal should be commenced had to be measured from that date. The time within which to appeal was 21 days. The appeal should, therefore, have been instituted by no later than 21 March 2008. It was in fact instituted on 26 March. The appeal was, therefore, issued five days after the due date. The delay is quite small.
The essential reason for the delay in instituting the appeal was that the O’Neills believed that the Council would represent their interests on the appeal. Plainly, the reasoning of the judge of the Environment Court encouraged them to adopt that course. Mr O’Neill’s evidence was that, until about 20 March 2008, he was confident that the Council was going to represent the interests of himself and his wife. On or about 14 March, Mr O’Neill learned that the Kimhis had amended the plans of their development proposal. It seems that he was not then aware that the Council would agree to the modified proposal. By 20 March, he was aware that it was likely the Council might change its view and agree to the amendment. He also knew that the Council’s Development Assessment Panel had rejected his application to be heard in opposition to the amended plans. Notwithstanding that knowledge, Mr O’Neill did not then lodge his notice of appeal. He did not give a clear explanation for his failure promptly to act after 20 March.
There can be no doubt that the Kimhis will suffer a degree of prejudice if the time within which the appeal may be instituted is extended and the appeal is allowed. There will be an inevitable delay while a hearing date in the Environment Court is fixed and the appeal is heard and determined. However, the Kimhis do not yet have building rules consent and so do not have development approval. The prejudice they will suffer is the delay in being able to proceed with their proposal, if they succeed on this appeal in the Environment Court. That prejudice must be weighed against the prejudice to be suffered by the O’Neills if they are denied the opportunity to be heard in the Environment Court. They will be denied the opportunity to demonstrate that this proposal should be refused or at least significantly modified because of its overshadowing effect on their land and on the manner in which they propose to use their land. This is the last opportunity available to the O’Neills to seek to ameliorate the impact upon them of the proposed development. The Kimhis will suffer no more than delay if they succeed on the appeal. It is appropriate to balance the prejudice to each. When the prejudice to each is weighed, the balance tips plainly in favour of extending the time within which the O’Neills may appeal. They will suffer an irretrievable loss if not joined, while the Kimhis only suffer some delay.
For the reasons already expressed, it is clear that the O’Neills have an arguable case. In my view, while there has been a delay of some five days which has not been entirely explained, the interests of justice clearly require that the time within which to institute this appeal should be extended to 26 March.
Remedies
The Kimhis rely on the fact that on 15 April a Commissioner in the Environment Court made an order granting development consent to the Kimhis. They contend that it is now too late for the O’Neills to be joined. The submission fails to allow for the fact that this court can order that its order joining the O’Neills as parties to the appeal in the Environment Court operate as from the day on which the judge decided the application for joinder. It is appropriate that the order should operate as from 27 February. If the judge had made the correct order, the O’Neills would have been joined on that date. If the court does not make the order operate from 27 February, there is a real potential for injustice. The order joining the O’Neills will, therefore, operate from 27 February. The consequence is that, as they ought to have been parties from that date, every step in the proceedings thereafter is a nullity, at least to the extent that the O’Neills do not consent to that step. The order made on 15 April is, therefore, a nullity and must be set aside.
For these reasons, I allowed the appeal and made the following orders.
1That the time for instituting this appeal be extended to 26 March 2008.
2Appeal allowed.
3Set aside the order of the Environment, Resources and Development Court made on 27 February 2008 in the appeal in that court numbered 26 of 2008 (“the appeal”) and in its place order that John O’Neill and Catherine O’Neill be joined as parties to the appeal.
4That the order joining John O’Neill and Catherine O’Neill take effect as and from 27 February 2008.
5That the order of the Environment, Resources and Development Court made in the appeal on 15 April 2008 be set aside.
6That the Environment, Resources and Development Court re-open the hearing of the appeal.
7That the respondents, Isaac Kimhi and Carolyn Joy Kimhi, pay the appellants’ costs of and incidental to this appeal.
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