Repoly Pty Limited v NSW Independent Planning Commission

[2025] NSWLEC 1714

Land and Environment Court

New South Wales

Medium Neutral Citation:

Repoly Pty Limited v NSW Independent Planning Commission [2025] NSWLEC 1714

Hearing dates:

22 August 2025

Date of orders:

30 September 2025

Decision date:

30 September 2025

Jurisdiction:

Class 1

Before:

Froh R

Decision:

The Court orders:

(1) Garvan Institute of Medical Research is joined as the fourth respondent.

(2) The fourth respondent is to file and serve the Statement of Facts and Contentions by 14 October 2025.

Catchwords:

JOINDER — application for joinder — statutory tests — issues proposed to be raised by applicant for joinder — public interest – application for joinder granted

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 8.12, 8.15

Garvan Institute of Medical Research Act 1984 (NSW), ss 4, 5, 6

Cases Cited:

CWO Pty Limited v Muswellbrook Shire Council [2023] NSWLEC 1049

Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205

Garling v Northern Beaches Council [2022] NSWLEC 102

Category:

Procedural rulings

Parties:

Repoly Pty Limited (Applicant)
NSW Independent Planning Commission (First Respondent)
Samantha Wood (Second Respondent)
Rachel Russell (Third Respondent)
Garvan Institute of Medical Research (Applicant for joinder)

Representation:

Counsel:
N Eastman SC (Applicant)
K Lee (Solicitor) (First Respondent)
A Beatty (Solicitor) (Second Respondent)
B Collingwood (Third Respondent)
C Harris (Applicant for joinder)

Solicitors:
Keypoint Law (Applicant)
Crown Solicitor’s Office (First Respondent)
Beatty Hughes Legal Pty Limited (Second Respondent)
Johnson Legal Pty Ltd (Third Respondent)
Gadens Lawyers (Applicant for joinder)

File Number(s):

2025/264451

Publication restriction:

Nil

JUDGMENT

1. This matter is a notice of motion for the joinder of the Garvan Institute of Medical Research (Garvan Institute) as the fourth respondent to the substantive proceedings (the Motion).

2. The Notice of Motion was filed on 15 August 2025 and it was heard on 22 August 2025. At the hearing of the Motion, the Garvan Institute relied on the affidavit sworn by its solicitor on 15 August 2025. The motion was consented to by the first, second and third respondents and not opposed by the applicant to the proceedings. However, counsel for the applicant to the proceedings made submissions on the application and the exercise of the Court’s discretion. The Garvan Institute filed brief written submissions in support of its Motion.

3. The Garvan Institute seeks to be joined under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) which sets out the test for joinder as follows:

8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act)

…

(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.

4. The substantive proceedings concern an appeal commenced by Repoly Pty Limited (Repoly) against the Independent Planning Commission’s (IPC) refusal to grant consent for Repoly to construct and operate a plastics recycling facility in Moss Vale.

5. Since the appeal was commenced Samantha Wood and Rachel Russell have both exercised their right to be heard at the hearing under s 8.12(3) of the EPA Act and been made the second and third respondent respectively.

6. Similarly to Ms Wood and Ms Russell, the Garvan Institute lodged numerous objections to the development application. However, during the relevant period the Garvan Institute lodged a submission, not an objection, meaning it is not able to exercise a right to be heard at the hearing under s 8.12(3) of the EPA Act. As such, it has sought to be joined to the proceedings under the s 8.15(2) of the EPA Act.

7. The Garvan Institute owns land immediately adjacent to the site of Repoly’s proposed development. The Garvan Institute’s land is leased to the Australian BioResources Pty Limited (ABR), which is the Garvan Institute’s wholly owned subsidiary. Originally, ABR also sought to also be joined to the proceedings, but given the alignment between ABR and the Garvan Institute the Court was only moved for orders to join the Garvan Institute.

8. Submissions were made by the Garvan Institute that its land is used by ABR for the breeding and holding of research mice. The ABR facility houses mouse colonies that are critical for research into cancer, mental illness, arthritis, asthma, heart disease, diabetes and obesity.

9. The Garvan Institute is a not-for-profit medical research institute constituted under the Garvan Institute of Medical Research Act 1984 (NSW) (Act). Its aims, functions and objects are set out in that Act (ss 4, 5 and 6). The Garvan Institute submitted to me that it is through the operation of the ABR that it seeks to fulfill its statutory obligations.

10. In the IPC’s Statement of Reasons for Decision dated 24 January 2025, the IPC recognised the public importance of the work undertaken at ABR:

“51….the ABR facility is a unique and critical price of infrastructure which provides pivotal research and associated services to the Australian medical research sector. This is affirmed by comments from NSW Health (via the Department on 14 January 2025) that ‘the ABR facility is a significant facility in the national research ecosystem – and is one of a kind for the State’.”

11. On 2 December 2024, the Garvan Institute (with ABR) made a submission to the IPC outlining the potential impacts of the proposed development on the mouse colonies at the ABR facility from:

1. construction and operational noise and vibrations; and

2. adverse changes to air quality from a fire or other emissions from the proposed development.

12. The Garvan Institute submitted that the if these impacts were to materialise, then there would be catastrophic adverse consequences for scientific research in NSW and across Australia. It was further submitted to me that such consequences would thwart the fulfillment of the Garvan Institute’s statutory objective.

13. The Garvan Institute sought joinder to these proceedings on two grounds. The first is that it is able to raise an issue that should be considered but is not likely to be sufficiently addressed if it is not joined as a party. The second is that it is in the public interest that it be joined.

14. In support of the first test for joinder, it was submitted that given the potential impacts of Repoly’s proposed development on the ABR facility and the Garvan Institute’s particular and specialised knowledge of its operations means that it is necessary for the Garvan Institute to make submissions and provide evidence regarding any potential development consent conditions.

15. At the time of the hearing of this motion, no party had filed and served a Statement of Facts and Contentions in the proceedings. Despite the Respondents agreeing to the joinder of the Garvan Institute and the Applicant not opposing the joinder, the Court is unable to determine what issues the Garvan Institute proposes to raise and whether those issues are able to be sufficiently addressed without its joinder to the proceedings. As such, this limb of the test for joinder cannot be made out.

16. Turning now to whether it is in the public interest for the Garvan Institute to be joined to these proceedings. It was submitted to me that the Garvan Institute serves important public functions as set out in its establishing Act. Given the potential impact of the proposed development on ABR and the fulfillment of the Garvan Institute’s functions, it was submitted to me that it is in the public interest for the Garvan Institute to be joined as a party in order to safeguard those functions.

17. In making these submissions, the Garvan Institute relied on CWO Pty Limited v Muswellbrook Shire Council [2023] NSWLEC 1049 (‘CWO’). In that case the Commonwealth satisfied the Court that it was in the public interest that it be joined to the proceedings: CWO [26] to [29].

18. In support of its application that it be joined in the public interest, the Garvan Institute provided the IPC’s Statement of Reasons in its evidence, which states the following:

“52. The Commission finds that the ABR facility will be subjected to noise and vibration impacts during the construction period and 24 hours a day, seven days a week operation of the Project and that these impacts could be detrimental to the successful ongoing operation of the facility. Noting the prior impacts experienced by the ABR facility during construction works on Braddon Road, the Commission considers the potential vibration impacts to be a crucial issue to the ongoing viability of the ABR facility’s nationally significant research, and that it is not appropriate to resolve such matters post-consent.

53. The Garvan Institute’s submission highlights that operational vibration impacts have not been adequately considered or addressed via the Department’s recommended conditions. In response, the Department’s correspondence to the Commission dated 14 January 2025 advises that operational vibration sources would be limited to trucks travelling to and from the premises and machinery operating indoors on a concrete slab, stating operational vibration is expected t be low. The Department further suggests that its recommended conditions could be amended to address vibration impacts on the ABR facility during operation.

54. Considering the highly sensitive nature of the ABR facility, the Commission finds the potential operational vibration impacts of the Project to be in direct conflict with the established operations of the ABR facility. Seeking to resolve such impacts as a post-consent matter is not, in this case, an appropriately robust and reliable approach. The potential risks of such an approach to the work of the ABR facility and resulting likelihood of land use conflict are significant.”

19. Regarding the risk to air quality from a fire or emissions, the IPC found that:

“[g]iven the very significant potential impact to the ABR facility should there be a fire, approval of the present Application directly adjoining a critical and highly sensitive scientific research facility is not an acceptable or reasonable land use planning outcome.”

20. My view is that the proposed impacts raised by the Garvan Institute on its ABR facility, the statutory mandate under which it was established and operates and the reasons given by the IPC in its Statement of Reasons clearly satisfy the test for public interest.

21. I must now consider whether it is appropriate to exercise my discretion and order the joinder of the Garvan Institute to the proceedings.

22. These proceedings already have three respondents and the Court is generally reluctant to have a multiplicity of parties in proceedings due to the impact it has on the efficient conduct of proceedings and Court practice: Garling v Northern Beaches Council [2022] NSWLEC 102 at [47] and Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 (‘Bongiorno’) at [9]. However, my view is that the assistance the Garvan Institute can provide to the Court, the likely strength of the issues it proposes to raise by it in the context of the overriding purpose of the “just, quick and cheap” resolution of proceedings demonstrates it is appropriate for me to exercise my discretion in the Garvan Institute’s favour: Bongiorno at [6].

23. The Court orders:

1. Garvan Institute of Medical Research is joined as the fourth respondent.

2. The fourth respondent is to file and serve the Statement of Facts and Contentions by 14 October 2025.

S Froh

Registrar of the Court

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Decision last updated: 30 September 2025