Shellharbour City Council v Dunmore Equestrian Centre Pty Ltd & Another - [2008] NSWLEC 163

Land and Environment Court

of New South Wales

CITATION: Shellharbour City Council v Dunmore Equestrian Centre Pty Ltd & Another [2008] NSWLEC 163

PARTIES: APPLICANT
Shellharbour City Council
FIRST RESPONDENT
Dunmore Equestrian Centre Pty Limited
SECOND RESPONDENT
John Nicholas Kosseris
RESPONDENT TO NOTICE OF MOTION
DLM Certification Pty Limited

FILE NUMBER(S): 41223 of 2007

CORAM: Sheahan J

KEY ISSUES: Practice and Procedure :- Application to join certifier as a party

CASES CITED: Cambridge Credit Corporation Ltd and Another v Parkes Development Pty Ltd [1974] 2 NSWLR 590
Carriage v Stockland Development Pty Ltd & Ors (No.6) [2004] NSWLEC 541
Minister for Minerals and Energy v Vaughan-Taylor and Another (1991) 73 LGRA 115

DATES OF HEARING: 2 May 2008

EX TEMPORE JUDGMENT DATE: 2 May 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Johnson
SOLICITORS
Kells the Lawyers
FIRST & SECOND RESPONDENT
Mr J Doyle (judgment only)
SOLICITORS
Thomson Playford
RESPONDENT TO NOTICE OF MOTION
Ms M Carpenter
SOLICITORS
Brown Wright Stein Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

2 May 2008

41223 of 2007 Shellharbour City Council v Dunmore Equestrian Centre Pty Ltd & Kosseris
EXTEMPORE JUDGMENT

1 His Honour: The Council seeks leave to further amend its Class 4 application in this matter to join as a Third Respondent in the proceedings DLM Certification Pty Ltd (“DLM”), the certifier involved in certain key circumstances the subject of the proceedings.

2 DLM opposed its joinder and was represented by Counsel (Ms Carpenter) at the hearing of the motion this morning. The First and Second Respondents did not appear and Mr Johnson (Counsel for the Council) informed the Court that they neither consent to, nor oppose, the joinder of DLM. The motion for joinder is Prayer No.4 in Council’s Notice of Motion dated 19 March 2008, the rest of which notice need not detain me today.

3 The Council had already amended its Class 4 application in a very substantial way on 19 February 2008, adding a number of additional declarations to be sought. One of those, number 4b, would have the Court declare the construction certificate (“CC”) granted to the Respondents by DLM on 27 February 2007 void and of no effect, but no order is sought against DLM.

4 Comprehensive Points of Claim, filed on 2 April 2008, detail a number of construction certificates issued in respect of the project which is the subject of these proceedings. The 27 February 2007 CC (issued on 28 February 2007) was stated in the Points of Claim (“POC”) (at par 9) to be limited to the construction of the house and garage and to have expressly excluded works approved by two earlier CCs involving house site establishment etc. The Applicant alleges, inter alia, breaches of consent (or lack of consent) in respect of land clearing and road excavation and construction works, allegedly affecting protected lands and SEPP 14 wetlands, and breaches in relation to the placement of fill on the subject land.

5 The POC (in pars…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWLEC 163
Decision Date: 2 May 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Shellharbour City Council brought an application against Dunmore Equestrian Centre Pty Ltd and John Nicholas Kosseris, contesting alleged breaches of environmental consents related to a construction project. The council sought to amend its application to include DLM Certification Pty Ltd, the certifier of the construction certificates in question. DLM opposed the joinder, arguing that it should not be a party to the proceedings as no relief was sought against it.

The court had to decide whether DLM should be joined as a party in the proceedings, despite the absence of a claim against it. This decision hinged on whether DLM's involvement was necessary to effectively resolve the dispute concerning the validity of the construction certificates, which were central to the allegations of environmental breaches. The court considered whether the joinder was proper and necessary under the Uniform Civil Procedure Rules 2005, and whether it would serve the interests of all parties.

The court found that DLM's joinder was both proper and necessary. The validity of the construction certificates was a critical issue in the proceedings, and the certifier's role in issuing these certificates was relevant to the council's claims. The court cited precedents that supported the principle of joining parties when it is very desirable to do so, and concluded that DLM's inclusion was essential for a fair and complete resolution of the matter. Consequently, the court granted the council's application to join DLM as a party, and made directions for the filing of amended documents and the service of particulars. The costs of the motion were reserved for further consideration.

Orders