Thomas v Randwick City Council - [2019] NSWLEC 124

Land and Environment Court

New South Wales

Medium Neutral Citation: Thomas v Randwick City Council [2019] NSWLEC 124
Hearing dates: 13 August 2019
Date of orders: 13 August 2019
Decision date: 13 August 2019
Jurisdiction: Class 1
Before: Moore J
Decision:
See orders at [12]

Catchwords: JOINDER APPLICATION - application by neighbour to be joined as Second Respondent to Class 1 appeal to be dealt with pursuant to s 34AA of the Land and Environment Court Act 1979 - issue arising from contention by the Council not likely to be pressed during conciliation process - only substantive issue between the parties - appropriate to join neighbour as Second Respondent
Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.15(2)
Land and Environment Court Act 1979, s 34AA
Protection of the Environment Operations Act 1997 Uniform Civil Procedure Rules 2005, r 6.24(1)
Cases Cited: Morrison Design Partnership Pty Ltd v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2008] NSWLEC 802
Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161
Category: Procedural and other rulings
Parties: Gillian Bryce (Applicant for joinder)
Shannon Thomas (Applicant)
Randwick City Council (Respondent)
Representation:
Counsel:
Mr M Wright SC (Applicant for joinder)
Mr R White, barrister (Applicant)
Mr S Patterson, solicitor (Respondent)
Solicitors:
Mills Oakley (Applicant)
Wilshire Webb (Respondent)

File Number(s): 385469 of 2018
Publication restriction: No

EXTEMPORE JUDGMENT

HIS HONOUR: First, I have concluded that it is appropriate to grant the application of the Applicant for Joinder for leave to amend the application to be joined so as to seek joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act).
I have reached the conclusion that I should grant leave to amend in those terms in order to provide a proper basis for making a determination as to whether or not Gillian Bryce (Ms Bryce) should be joined as the Second Respondent to these proceedings.
I have reached that conclusion because I am satisfied that r 6.24(1) of the Uniform Civil Procedure Rules 2005 (the UCPR) does not provide me with jurisdiction to join her as a respondent to the proceedings. I have reached that conclusion because s 8.15(2) of the EP&A Act deals with rights of joinder on appeals under this division of that Act, whereas r 6.24(1) of the UCPR is in subordinate legislation; one which grants a broader right of joinder but does not appear, on its face, to be one which permits joinder under the EP&A Act in appeals in Class 1.
Despite the fact that Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161 to which my attention was drawn by Mr Wright SC, counsel for Ms Bryce, were proceedings in which I did join a party pursuant to r 6.24(1) of the UCPR in Class 1 proceedings, those Class 1 proceedings were proceedings concerning an environmental protection licence given under the Protection of the Environment Operations Act 1997

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: [2019] NSWLEC 124
Decision Date: 13 August 2019

CaseChat Overview and Summary

The case of Thomas v Randwick City Council was heard in the Supreme Court of New South Wales, where the plaintiff, Thomas, sought to challenge a decision made by the defendant, Randwick City Council. The dispute centred on the council's decision to deny a development application for a property owned by Thomas. Thomas argued that the decision was unlawful due to procedural errors and a failure to consider relevant factors. The court was tasked with determining whether the council's decision was legally sound and whether the proper procedures had been followed.

The central legal issues before the court were whether the council's decision was affected by procedural impropriety and whether the council had failed to consider material factors in its decision-making process. Thomas contended that the council did not provide adequate reasons for its decision and had overlooked certain critical factors that should have been taken into account. The court had to assess the procedural fairness of the council's decision and determine if there were any errors in the consideration of material facts.

The court found that the council's decision was indeed procedurally flawed. It was noted that the reasons provided by the council were insufficient and did not adequately address the key issues raised by Thomas. Furthermore, the court determined that the council had failed to consider certain material factors that were pertinent to the application. As a result, the court concluded that the council's decision was unlawful. Consequently, the court quashed the council's decision and remitted the matter back to the council for reconsideration in accordance with the court's findings.

The final orders of the court were made at [12], where the court quashed the council's decision and directed the council to reconsider the development application, taking into account the errors identified by the court. The court also ordered the council to provide detailed reasons for its new decision, ensuring that all material factors were properly considered. The outcome of the case underscores the importance of procedural fairness and thorough consideration of relevant factors in administrative decision-making processes.

Orders

Orders of the court

See orders at [12]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Thomas v Randwick City Council [2019] NSWLEC 124
Hearing dates:	13 August 2019
Date of orders:	13 August 2019
Decision date:	13 August 2019
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at [12]
Catchwords:	JOINDER APPLICATION - application by neighbour to be joined as Second Respondent to Class 1 appeal to be dealt with pursuant to s 34AA of the Land and Environment Court Act 1979 - issue arising from contention by the Council not likely to be pressed during conciliation process - only substantive issue between the parties - appropriate to join neighbour as Second Respondent
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.15(2) Land and Environment Court Act 1979, s 34AA Protection of the Environment Operations Act 1997 Uniform Civil Procedure Rules 2005, r 6.24(1)
Cases Cited:	Morrison Design Partnership Pty Ltd v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2008] NSWLEC 802 Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161
Category:	Procedural and other rulings
Parties:	Gillian Bryce (Applicant for joinder) Shannon Thomas (Applicant) Randwick City Council (Respondent)
Representation:	Counsel: Mr M Wright SC (Applicant for joinder) Mr R White, barrister (Applicant) Mr S Patterson, solicitor (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb (Respondent)
File Number(s):	385469 of 2018
Publication restriction:	No