PS Design and Construction Pty Ltd v Wingecarribee Shire Council

[2020] NSWLEC 1290

Land and Environment Court

New South Wales

Medium Neutral Citation:

PS Design and Construction Pty Ltd v Wingecarribee Shire Council [2020] NSWLEC 1290

Hearing dates:

11 June 2020

Date of orders:

11 June 2020

Decision date:

11 June 2020

Jurisdiction:

Class 1

Before:

Froh R

Decision:

The Court orders that:

(1) The Motion is granted.

(2) Mr Allen Robinson and Mr Edward as executors of the Estate of the late James Oswald Fairfax AC are joined as the second respondents to these proceedings.

Catchwords:

JOINDER – application for joinder – statutory tests

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

Meriton Apartments Pty Limited v Fairfield City Council (No. 2) [2005]

Category:

Procedural and other rulings

Parties:

PS Design and Construction Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)
Allen Robinson and Edward Simpson trading as (in his capacity as Executors of the Estate of the late Mr James Oswald Fairfax AC) (Applicant for Joinder)

Representation:

Counsel:
J Corradini-Bird (Solicitor) (Respondent)
N Eastman (Applicant for Joinder)

Solicitors:
Holding Redlich (Applicant)
Marsdens Law Group (Respondent)
Hicksons Lawyers (Applicant for Joinder)

File Number(s):

2019/401093

Publication restriction:

No

Judgment

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

1. The Applicant for Joinder has sought under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) to be joined to these proceedings on the basis that it is in the interests of justice.

2. The motion is not opposed by the parties to the substantive proceedings.

3. As such the task for me is to consider whether it is in the interests of justice to join the Applicant for Joinder and then whether to exercise my discretion and grant joinder.

4. Section 8.15(2) of the EP&A Act states as follows:

8.15 Miscellaneous provisions relating to appeals under this Division

…

(2) On an appeal under this Division, 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.

5. The affidavit of Mr Robinson was read in these proceedings without objection. This affidavit set out in detail the arrangements put in place by Mr Fairfax regarding the development of the lands surrounding the Retford Park estate.

6. To assist in my consideration of whether it is in the public interest to order the joinder in this case, Counsel for the Applicant for Joinder has helpfully provided me with the decision of Pain J in Meriton Apartments Pty Limited v Fairfield City Council (No. 2) [2005] (“the Meriton case”) NSWLEC 121. In this case her Honour considered the test for joinder and whether it was in the interests of justice to join Residents Against Lansdowne Eviction Incorporated (RALE) to those proceedings. In that case RALE sought to be joined to the proceedings on the grounds of public interest. In her decision which joined RALE, her Honour stated: “I consider that the interests of RALE are sufficiently different to those of the Council that it is in the interests of justice that RALE participate in the proceedings as a party. That will enable RALE to participate fully in the proceedings...”.

7. The Applicant for Joinder acknowledged that the issues proposed to be raised by the Application for Joinder are similar to those raised by the Council in its Statement of Facts and Contentions. However, similarly to the Meriton case I consider that the interests of the Executors of the Estate of Mr Fairfax are sufficiently different to those of the Council that it is in the interests of justice that the Executors of the Estate of Mr Fairfax be joined.

8. I also consider this an appropriate case for me to exercise my discretion and order the Executors of the Estate of Mr Fairfax be joined to the proceedings as the second respondent.

Orders

9. The orders of the Court are as follows:

1. The Motion is granted.

2. Mr Allen Robinson and Mr Edward Executors of the Estate of the late James Oswald Fairfax AC are joined as the second respondents to these proceedings.

……………………….

S Froh

Registrar of the Court

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Decision last updated: 08 July 2020