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

1. 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).

2. 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.

3. 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.

4. 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, not anything involving the EP&A Act.

5. I have concluded with respect to the application now before me, leave having been given to amend for joinder pursuant to s 8.15(2) of the EP&A Act, that it is appropriate to join Ms Bryce as a party to the proceedings, as I am satisfied that for the purposes of s 8.15(2)(a) that the issue sought to be pressed on her behalf is one that is not likely to be sufficiently addressed if she was not joined as a party to the proceedings.

6. The reason why I have reached that conclusion is that I am satisfied, consistent with the decision of the Chief Judge in Morrison Design Partnership Pty Ltd v North Sydney Council and Director-General of the Department of Planning [2008] 159 LGERA 361; (2007) NSWLEC 802 (Morrison Design Partnership), as discussed in his Honour's decision at [44] to [47] that there is an issue that needs to be ventilated

7. However, I would indicate, first, that it is an important element of my consideration that these are matters to be dealt with under s 34AA of the Land and Environment Court Act 1979 (the Court Act) and the consequence of that is that the second day for which the matter has been set down, 14 August 2019, is retained. I will be directing that the present starting time of the hearing of 9.30 am on site be vacated and that 9.00 am on site is substituted in lieu thereof.

8. I indicate that I have advised the presiding commissioner of that change of time, although I have not indicated to her, at the time of giving that advice, the nature of the decision that I was about to make. So, the matter can proceed tomorrow and, if there is no agreement then, the matter can proceed to hearing tomorrow as otherwise mandated.

9. I am satisfied that the condition that is set out in Randwick City Council’s (the Council) proposed draft conditions of consent, which are Exhibit 1 on the Amended Notice of Motion, Condition 2(a), a mandated height of the pergola structure and screen planting that is that for which Ms Bryce contends, but for which Mr Patterson advises me, first, that his planning expert does not press in the Joint Expert Report and, second, that he has no instructions from the relevant instructing officer of the Council that that is a matter which will remain pressed by the Council for the purposes of both the conciliation and, if necessary, the subsequent hearing.

10. Although the question (consistent with what the Chief Judge dealt with in [46] of Morrison Design Partnership) is enlivened - that is the question of whether that issue, it being the remaining, indeed sole, if not principal, contested issue in the proceedings - will not necessarily adequately be addressed by the Council in the course of the conciliation conference.

11. It will also not necessarily be adequately addressed in any determination process following on from the conciliation conference and I am satisfied, it being critical to the resolution of the development application, that it will not be adequately addressed in the statutory context of s 8.15(2)(a).

12. Being critical to the primary issue in contention, I therefore am satisfied it is appropriate to order that:

1. Gillian Bryce is joined as the Second Respondent to the proceedings;

2. The commencement time for the conciliation conference pursuant to s 34AA of the Land and Environment Court 1979 of 9.30 am tomorrow is vacated and, in lieu thereof, the conciliation conference is to commence on site at 9.00 am tomorrow; and

3. The question of costs of the motion is reserved.

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Decision last updated: 27 August 2019