Project Venture Management Pty Limited v Warringah Shire Council

[2006] NSWLEC 753

Land and Environment Court

of New South Wales

CITATION:

Project Venture Management Pty Limited v Warringah Shire Council [2006] NSWLEC 753

PARTIES:

APPLICANT
Project Venture Management Pty Limited

RESPONDENT
Warringah Shire Council

INTERVENOR
Duffys Forest Residents Association Incorporated

FILE NUMBER(S):

11361 of 2005

CORAM:

Moore C

KEY ISSUES:

Practice and Procedure :-
Application for joinder

LEGISLATION CITED:

Land and Environment Court Act 1979

CASES CITED:

Lowy v New South Wales Land and Environment Court & Ors (2003) 123 LGERA 179, [2002] NSWCA 353

DATES OF HEARING:

26 October 2006

EX TEMPORE JUDGMENT DATE:

10/26/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Flaherty, solicitor
Staunton Beattie

RESPONDENT
Mr S Patterson, solicitor
Wilshire Webb

INTERVENOR
Ms L Byrnes, barrister
INSTRUCTED BY
Environmental Defenders Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

26 October 2006

05/11361 Project Venture Management Pty Limited v Warringah Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: This is a Notice of Motion lodged on behalf of the Duffys Forest Residents Association Incorporated, a community organisation, which on 22 August 2006 was granted leave to be an intervenor in these proceedings – such leave being confined to making submissions and being legally represented at the hearing in relation to bushfire issues only. Subsequently, on 25 August, as a consequence of the possibility that the council might enter into consent orders based on revised plans, the intervenor sought and was granted an expanded leave to make submissions in relation to all issues in the proceedings.

2. This morning’s Notice of Motion seeks, pursuant to s 39A of the Land and Environment Court Act 1979 (the Court Act), to convert that expanded status as an intervenor into being a party to the proceedings.

3. The first respondent to the Notice of Motion, that is Warringah Shire Council [the council] (which is the respondent in the substantive proceedings), neither supports nor opposes the application. The second respondent to the Notice of Motion, the applicant in the substantive proceedings, opposes the Notice of Motion in part on the basis of the lateness of the application and in part on what it says might be the possibility of occasioning further delay or inconvenience in disposal of the proceedings.

4. Ms Byrne, counsel for the applicant in the Notice of Motion, has indicated that, if leave for change of status is granted, no additional material (beyond that for which leave was granted by consent today for the filing and serving of additional evidence) will be occasioned and that no additional matters will be agitated and that, if granted status as a party, the intervenor would not be seeking, at the resumption of the substantive hearing on 30 October, any adjournment or any expansion of the scope of the proceedings.

5. Applications pursuant to s 39A of the Court Act are to be tested against three alternative propositions that are set out in that section.

6. The first, effectively relating to matters where there will be either consent orders or consent of the respondent council on significant issues, deals with the absence of a contradictor on such issues.

7. In this case, although it remains a distinct possibility that the council will not oppose the substantive application on many or all grounds, the intervenor, by virtue of the leave granted on 22 August and expanded on 25 August, already has effectively an unhindered and unlimited basis upon which to address all of the issues that are in the proceedings. I am therefore satisfied that there is no basis pursuant to s 39A(a) for the applicant on the notice of motion to be joined as a party.

8. The remaining two tests under s 39A(b) are (i) that it is in the interests of justice that the entity or individual be joined, or (ii), that it is in the public interest that the entity or individual be joined as a party to the appeal.

9. With respect to the first of those limbs, Ms Byrne suggests that joinder would provide to the intervenor a right of appeal pursuant to s 56A of the Court Act and the right to seek (and conversely the risk of being exposed to) costs orders in the proceedings, such right or exposure running from the time that change of status pursuant to s 39A would be granted.

10. The first of those propositions evinces a pessimistic attitude to the nature of the decision that her client considers I might make in the proceeding and an optimistic attitude or expectation that in doing so I might make an error of law susceptible to redress pursuant to s 56A.

11. The converse position, it would seem to me, is adopted by the applicant in the substantive proceedings, namely an optimistic expectation that I might make a decision on the merits in its favour and a pessimistic expectation with respect to my ability not to avoid making an error of law in reaching such a decision.

12. I am satisfied that neither of those positions, whether accurately or adequately held, would provide any basis under s 39A(b)(i) to permit the intervenor to change its status and become a party to the proceedings.

13. On the other hand, it is not contested that the intervenor is a community organisation and its participation in these proceedings, to date, has been one of pursuing matters of public interest rather than matters of personal or propriety interest on behalf of any individual or individuals who might be members of that association.

14. Section 39A of the Court Act was inserted, effective from early 2003, and postdates the decision of the Court of Appeal in Lowy v New South Wales Land and Environment Court & Ors (2003) 123 LGERA 179, [2002] NSWCA 353, where, at p 183, Mason P expressed a reservation that an active intervenor might have in fact appellate rights under the Act as it then stood.

15. It is my understanding that s 39A, introduced subsequent to that decision of the Court of Appeal, has had the effect of codifying the basis upon which a person might become a party and thus have access to rights under s 56A and rights or obligations with respect to costs.

16. Thus the tentative expression made by Mason P in Lowy has been subsumed in and removed by the enactment of s 39A.

17. As a consequence of the fact that the intervenor is a community organisation not seeking to pursue individual proprietary interests, I am satisfied as a matter of fine balance that it would be appropriate to join them as a party pursuant to s 39A(b)(ii). The Duffys Forest Residents Association Incorporated is therefore joined as a party pursuant to that provision.

18. As a consequence of that and the earlier matters that are contained in the Notice of Motion (which were not contested), I give the following directions in the substantive proceedings:

1. The second respondent is to file and serve a copy of the additional bushfire analysis by Mr Roy Free that was exhibited to the affidavit of 17 October 2006 sworn by Josie Walker and read in these proceedings and;
2. The second respondent is to file and serve in the substantive proceedings a copy of the survey report by Brunskill McClenahan and Associates Pty Limited dated 10 October 2006 and also exhibited to the affidavit of 17 August 2006 sworn by Josie Walker and read in these proceedings.

19. Both such directions are required to be complied with by the close of business on Friday 27 October 2006. The further hearing of the matter is adjourned until 10.00am before me on Tuesday 31 October 2006.

Commissioner of the Court