Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 121

Land and Environment Court New South Wales

Medium Neutral Citation: Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 121 Hearing dates: 19 August 2020 Date of orders: 25 August 2020 Decision date: 25 August 2020 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [76] Catchwords: JOINDER - appeal by Toplace against deemed refusal of an application to modify a condition of development consent - application by the Council to join two further developers with projects in the immediate vicinity of the Toplace development project - all three projects are located at an intersection in Rosebery - intersection requires upgrading - the appealed condition in the Toplace development consent requires the upgrading of the intersection prior to the issue of any occupation certificate for the Toplace development - the amendment sought by Toplace would only require such upgrading prior to the issuing of a Final Occupation Certificate for the Toplace development - whether joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 available - Joinder pursuant to s 8.15(2) not available - whether joinder pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 appropriate - Toplace's proposed modification has potential to impact directly on the interests of the two developers proposed to be joined - joinder appropriate - joinder ordered MEDIATION - matter potentially amenable to commercial resolution - mediation appropriate in light of joinder - mediation to be ordered Legislation Cited: Civil Procedure Act 2005, s 26 Environmental Planning and Assessment Act 1979, ss 4.55 and 8.15 Land and Environment Court Act 1979, s 34 Uniform Civil Procedure Rules 2005, r 6.24 Cases Cited: CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in Liq) (No 2) [2011] NSWLEC 91 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Thomas v Randwick City Council (No 3) [2019] NSWLEC 161 Toplace Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1222 Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Category: Procedural and other rulings Parties: Toplace Pty Ltd (Applicant/Respondent to the Motion) Council of the City of Sydney (First Respondent/Applicant proposing Joinder) Transport for NSW (Second Respondent) Hifu Investment Pty Ltd (Party 1 proposed to be joined) The Warehouse Pty Ltd (Party 2 proposed to be joined) Representation: Counsel: Mr P Tomasetti SC (Applicant/Respondent to the Motion) Mr J Lazarus SC (First Respondent/Applicant proposing Joinder) Ms A Hemmings, barrister (Second Respondent) Mr T To, barrister (Party 1 proposed to be joined) Mr A Stafford, barrister (Party 2 proposed to be joined)