Sutherland Shire Council v Almajd; Burrell v Almajd
[1999] NSWLEC 224
•09/21/1999
Land and Environment Court
of New South Wales
CITATION:
Sutherland Shire Council v Almajd; Burrell v Almajd and Anor [1999] NSWLEC 224
PARTIES
40158/98
40103/99
APPLICANT:
Sutherland Shire Council
APPLICANT:
Burrell40158/98
40103/99
RESPONDENT:
Almajd
RESPONDENTS:
Sutherland Shire Council and Anor
NUMBER:
40158 of 1998; 40103 of 1999
CORAM:
Talbot J
KEY ISSUES:
Practice & Procedure :- joinder of a party
LEGISLATION CITED:
DATES OF HEARING:
09/16/1999; 09/17/1999
DATE OF JUDGMENT DELIVERY:
09/21/1999
LEGAL REPRESENTATIVES:
40158/98
APPLICANT:
Mr S Berveling (Solicitor)
SOLICITORS:
Abbott Tout40103/99
APPLICANT:
Mr A Howen (Barrister)
SOLICITORS:
John Burrell Solicitors40158/98
RESPONDENT:
Mr O Stichter (Solicitor)
SOLICITORS:
Otto Stichter and Associates40103/99
SECOND RESPONDENT:
FIRST RESPONDENT:
Mr O Stichter (Solicitor)
SOLICITORS:
Otto Stichter and Associates
Mr S Berveling (Solicitor)
SOLCITIORS:
Abbott Tout
JUDGMENT:
IN THE LAND AND Matter No. 40158 of 1998
ENVIRONMENT Court And 40103 of 1999
OF NEW SOUTH WALES Coram: Talbot J
- Decision Date: 21 September 1999
Matter No. 40158 of 1998
Sutherland Shire Council
Applicant
v
Ghass Almajd
Respondent
Matter No. 40103 of 1999
John Burrell
Applicant
v
Ghass Almajd
First Respondent
Second Respondent
1. In proceedings No 40158 of 1998 (the first proceedings) Sutherland Shire Council seeks a declaration that the respondent has breached or allowed a breach of the Environmental Planning and Assessment Act 1979 (the EP&A Act) by allowing six Tuckeroo trees to be cut down or lopped in breach of a Tree Preservation Order made under Sydney Regional Environmental Plan No 17 - Kurnell Peninsula (SREP 17) which, by cl 6, incorporates cl 8 of the Model Provisions 1980.
2. In proceedings No 40103 of 1999 (the second proceedings) the applicant Mr Burrell seeks a declaration that the felling of six Tuckeroo trees on the same property required consent from the council, which is named as second respondent, pursuant to the Sutherland Shire Tree Preservation Order (the TPO) made under cl 13 of Sutherland Shire LEP 1993.
3. Both applicants seek consequential orders for the land and the trees to be rehabilitated.
4. A form of tree preservation order was published in the Government Gazette on 12 July 1996. It refers to the provisions of cl 13 of the Sutherland Shire LEP 1993 and cl 6 of SREP 17.
5. On 21 May 1999 Mr Burrell made an application to be joined as the second respondent in the first proceedings. Acting Justice Cowdroy, as he then was, dismissed the application for joinder. At the same time orders were made granting leave for Mr Burrell to commence proceedings within seven days and for both proceedings to be heard together and amalgamated. It has not been explained to me what his Honour meant by the order that both proceedings are amalgamated.
6. The hearing commenced before me on 16 September 1999 when both parties acknowledged that the first and second proceedings are to be heard together and that evidence in one is to be evidence in the other.
7. Heretofore there has been no suggestion that the proceedings have been consolidated pursuant to Div 2 of Pt 31 r 7 of the Supreme Court Rules (the SC Rules) which apply in this Court by dint of Pt 6 r 2 of the Land and Environment Court Rules (the LEC Rules).
8. The parties to the first proceedings, namely the council as applicant and Mr Almajd as the respondent, have now indicated to the Court that they have reached an agreement and terms of settlement have been drawn up.
9. Mr Howen, who appears for Mr Burrell, now seeks to be heard on whether the Court should make orders by consent in the first proceedings. In the alternative, he makes a further application for Mr Burrell to be joined as a second respondent to the first proceedings.
10. Although Mr Howen protests that his client has not been made privy to the negotiations between the other parties, and he has not formally received a copy of the terms of settlement, he nevertheless argues that the agreement will result in the removal of two trees stumps which his client seeks to have preserved. The parties to the first proceedings have not been heard to deny that will be the effect of the consent orders if they are made.
11. The decision of the Court of Appeal in Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 has generally been regarded as authority that the Supreme Court cannot permit intervention in cases outside the circumstances where intervention is by express statutory authority. The reasons given by the Court of Appeal are set out in the judgment of Hutley JA, with whom Reynolds and Glass JJA agreed. There has been subsequent debate whether the width of the opinion expressed by Hutley JA can be supported having regard to a number of matters, in particular s 23 of the Supreme Court Act ( Rushby and Anor v Roberts and Anor (1983) 1 NSWLR 350 and Shales v Lieschke (1983) 3 NSWLR 65). The points of distinction which, so far as I am aware, have not been finally determined are, in any event, not relevant here.
12. Generally, parties are the only persons entitled to appear in litigation, whereas it is only in special cases that intervention has been permitted. In the absence of any particular right, power or immunity concerning Mr Burrell’s interests, even if there was power to allow him to intervene, the Court would not have exercised its discretion in his favour ( Ku-ring-gai Municipal Council v The Attorney General (1954) 55 SR(NSW) 65; Australian Railways Union v The Victorian Railways Commissioner (1930) 44 CLR 319).
The application to be added as a party
13. Part 8 r 8(1)(b) of the SC Rules is the foundation for the application by Mr Burrell on the basis that he is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.
14. The application by Mr Burrell to be joined as a party is strongly opposed by the applicant and the respondent primarily, they say, because there is no longer any matter in dispute in the proceedings following settlement of all issues between them, apart from costs.
15. In Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496 Needham J examined the principles to be applied as to the construction of Pt 8 r 8(1)(b). He had already considered the terms of the rule in Re: Great Eastern Cleaning Services Pty Ltd v The Companies Act [1978] 2 NSWLR 278 when he reached a conclusion that no commonly accepted principles could be extracted.
16. In Great Eastern Cleaning Services at 281 he found that, following a closer look at the evidence, it became clear that the making of orders could adversely effect the legal rights of the Commissioner of Taxation in that proceedings which he had commenced against the applicant could founder. His Honour considered that before exercising his discretion to make or refuse the order requested in the proceedings, he should take into account what effect such an order could have, not only on the applicant, but on other persons. He concluded that the Commissioner was in a position to put before the Court matters which could be relevant to the exercise of the discretion in the absence of any other person shown to have an interest in putting forward such matters.
17. Subsequently, in Walker Needham J was referred to more recent authority and to an earlier case of which he had not been previously aware, namely Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52.
18. In Gurtner v Circuit [1968] 2 QB 587 Diplock LJ said at 603:-
… A matter in dispute is not, in my view, effectually and completely adjudicated upon unless the rules of natural justice are observed and all those who will be liable to satisfy the judgment are given an opportunity to be heard.
19. Although Mr Howen relies heavily upon the principles of natural justice to allow his client to be joined as a party, there is no suggestion that his client will be in any way liable to satisfy the judgment.
20. A more narrow approach was taken by the House of Lords in Vandervell Trustees Ltd v White [1971] AC 912.
21. Viscount Dilhorne rejected the test for the addition of a party as “whenever it is just or convenient to do so” .
22. Lord Diplock said at 944:-
… A party to an action must be a person who claims in that action some relief against another party to the action or against whom some relief is claimed by another party to the action. There is, in my view, no jurisdiction to add as a party to an existing action a person by and against whom no relief which the court has jurisdiction to grant can be claimed.
23. In Pegang Lord Diplock preferred to state the principle as follows at 56:-
… A better way of expressing the test is: will his rights against or liabilities to nay party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?
24. Ultimately Needham J appears to have placed emphasis on the use of the word “necessary” in r 8(1)(b) and then to apply it to ensuring that all matters in the dispute in the proceedings may be effectually and completely determined.
25. The council has commenced proceedings in accordance with the open standing provisions of s 123 of the EP&A Act. It is nevertheless the consent authority under the TPO for the purposes of the LEP and the SREP.
26. Mr Burrell is a neighbour. Mr Howen’s submission is that his joinder is necessary to protect his rights as a litigant in the other proceedings which have been commenced for the twofold purpose of being in the public interest and to protect concerns in respect of the use and amenity of his property as a consequence of the removal of the trees.
27. There are two fundamental issues in the proceedings. The first is whether there has been a breach of the EP&A Act. Second is the nature of the remedy if the breach is established.
28. Pursuant to s 124(1) where the Court is satisfied that a breach has been committed, it may make such orders as it thinks fit to remedy the breach.
29. Section 124(2)(c) is relied upon by the applicants in both proceedings on the basis that the alleged breach has the effect of altering the condition or state of land. Accordingly, they say the Court has power to require reinstatement of the trees “as part of the land” to the condition it was in immediately before the breach was committed.
30. Although the amenity of a neighbour might be taken into account in determining the nature of the remedy, it is not a right or interest in respect of the subject matter of the action.
31. Even if the Court is satisfied that there are matters remaining in dispute in the proceedings, it is not satisfied that the joinder of Mr Burrell, as an adjoining owner, is necessary to ensure that all matters in dispute in these proceedings may be effectually and completely determined and adjudicated upon.
32. Mr Howen makes a general sweeping submission that it is not appropriate for the Court to leave the resolution of the remedy in the hands of a council. There is no evidence to support a conclusion that the council has not acted properly in response to the alleged breach, nor that it will not continue to act properly in the future. The statutory regime, established principally by the EP&A Act and the Local Government Act 1993, vests councils with a wide discretion to control and regulate a broad range of activities, including the cutting and lopping of trees. It is simply not open to the Court to assume that a statutory body such as a council will not perform its duties notwithstanding that from time to time individual actions by councils may not find favour with the Court according to the circumstances of each case.
33. Mr Burrell is concerned that if the orders are made in the form propounded by the terms of settlement, the respondent will thereafter be in a position to remove the two stumps which he is concerned should be preserved. The Court has the benefit of the evidence in matter No 40103 of 1999, including the evidence from Mr Burrell’s expert which has been read in matter No 40158 of 1998.
34. Having regard to the whole of the circumstances, the Court is not of the opinion that the joinder of Mr Burrell as a party to proceedings No 40158 of 1998 is necessary pursuant to Pt 8 r 8.
35. The application is rejected.
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