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) Solicitors: EA Legal (Applicant/Respondent to the Motion) The Council of the City of Sydney (First Respondent/Applicant proposing Joinder) Lindsay Taylor Lawyers (Second Respondent) Mills Oakley Lawyers (Party 1 proposed to be joined) King Wood & Mallesons (Party 2 proposed to be joined) File Number(s): 165316 of 2020 Publication restriction: No TABLE OF CONTENTS Introduction The status of the three developments The intersection upgrade The role of Transport for NSW Toplace's desire to modify its development consent The joinder application The joinder hearing The evidence at the joinder hearing The positions on joinder Introduction Transport for NSW's position Warehouse's position Hifu's position Two possible powers to order joinder Introduction The EP&A Act path is not available The UCPR path Introduction The Council's submissions Toplace's submissions Consideration Referral to mediation Costs Orders JUDGMENT Introduction 1. Rosebery is a suburb some four-and-a-half kilometres or so to the south of Sydney's CBD. It is transitioning from its historical industrial use (interspersed with modest amounts of low-level residential development) to a location with many residential developments of significantly higher density. Such development, self-evidently, brings with it a significantly higher population density. These new residents, in turn, generate significantly different and more intense vehicle use patterns of the local road system. 2. Planning for coping with this additional traffic influx had included identification by the Council of the City of Sydney (the Council) of the need to upgrade the intersection of Link Road and Epsom Road (on Rosebery's northern edge) from one presently regulated by a roundabout to one operating as a fully signalised intersection. 3. In conventional planning terms, the Council also identified steps that it needed to take to address two matters arising from the necessity for this intersection upgrade. Those matters were: 1. How the intersection upgrade should be financed; and 2. Timing matters for development in the immediate vicinity of the intersection. 1. The Council has approved three major developments in the immediate proximity of this intersection. The proponents of these developments, at the present time, are: 1. Toplace Pty Ltd (Toplace) - the address of Toplace's development site is 67-77 Epsom Road; 2. Hifu Investment Pty Ltd (Hifu) - the address of Hifu's development site is 1-5 Link Road; and 3. The Warehouse Pty Ltd (Warehouse) - the address of Warehouse's development site is 87-103 Epsom Road. 1. An affidavit from Ms Bullmore, a solicitor employed by the Council, forms part of the evidence in these proceeding. Her affidavit includes, at [7], a marked aerial photograph showing the location of the three above-noted development sites and the relationship of those sites to the intersection of Link and Epsom Roads. That image is reproduced below: The status of the three developments 1. A major element of Toplace's development (known as Building A) is nearing completion. Significant elements of this development have been presold with contract settlements to take place when the building is completed and, critically, when occupation is permitted for the various putative owners. 2. Hifu's development is substantially complete. 3. Development on the Warehouse site has not yet commenced. The intersection upgrade 1. The design for the proposed required works for the upgrade of the Link Road/Epsom Road intersection has not yet been undertaken. Whatever the design, it is clear that giving effect to it will require substantial and expensive works and encompass dedication of land to the Council for these works to take place. 2. The development consents granted to Hifu and Warehouse make provision for this through a Voluntary Planning Agreement (the VPA) which Hifu and Warehouse have entered into with the Council. An element of the VPA obliges Hifu to undertake the intersection upgrade by December 2020 and, if the upgrade is not completed by that time, permits the Council to call on a bank guarantee provided by Hifu of some $2.5 million to be applied toward the cost of the intersection upgrade. It is to be observed that it is not in dispute that the upgrade of the intersection will cost significantly more than the amount secured to the Council by the bank guarantee (the estimated upgrade cost being of the order of $10 million). 3. Warehouse also has significant obligations pursuant to the VPA but these do not include an express monetary contribution. 4. At the present time, Toplace has no obligation arising from the terms of its development consent to make any direct financial contribution to the upgrade of the intersection. The role of Transport for NSW 1. Transport for NSW (TfNSW) is the instrumentality of the New South Wales Government which has the role of approving the design of the proposed signalised intersection. TfNSW is the Second Respondent in the Toplace appeal proceedings as TfNSW has, as a Crown entity, exercised its right, pursuant to s 64 of the Land and Environment Court Act 1979, to appear in these proceedings. Toplace's desire to modify its development consent 1. The dilemma that arises for Toplace, in the context of the imminent completion of Building A, is the fact that Condition 28 of its development consent is in the following terms: (28) UPGRADE TO EPSOM ROAD/LINK ROAD INTERSECTION (a) Confirmation must be sought from Council that the upgrade to the Epsom Road/Link Road intersection has been satisfactorily completed prior to the issue of any Occupation Certificate. (b) In the case that the upgrade of the Epsom Road/Link Road intersection has not occurred: (i) Prior to the issue of any Occupation Certificate, a plan showing works to upgrade the intersection of Epsom Road/Link Road shall be submitted to and approved by the Director City Planning, Development and Transport. (ii) Detailed signal and road design plans of the proposed new traffic signals and interchange at Epsom Road/Link Road will need to be forwarded to the New South Wales Roads and Maritime Services for approval prior to the commencement of any roadworks. The plans must show all dimensions (e.g. lane width, kerb return radius), pavement marking, bike lane and logo, parking controls, bus zones, pedestrian crossing, median islands, signs and driveways. The New South Wales Roads and Maritime Services fees for administration, plan checking, signal works inspections and project management shall be paid for by the developer prior to the commencement of the works. (iii) Works to upgrade the intersection shall be completed prior to the issue of any Occupation Certificate for Building A. 1. To understand the implications of the present wording of this condition for Toplace, and for its purchasers (as putative occupants of Building A), is that the occupation cannot be effected until an occupation certificate is granted upon completion of the building permitting such occupation to occur. 2. Occupation certificates functionally come in two types. An Interim Occupation Certificate permits, as its title implies, occupation to be taken up on in interim basis pending finalisation of all aspects of the development. A Final Occupation Certificate can be issued when all aspects of an approved development have been finalised and no further interaction between the developer and the consent authority is required concerning that development. 3. Once an Interim Occupation Certificate is issued, there becomes no functional imperative or obligation to proceed to the point where a Final Occupation Certificate is issued. For the purposes of these proceedings, it is unnecessary to set out the statutory foundations for the issuing of such certificates. 4. However, as can be seen from the terms of Condition 28 of Toplace's development consent, occupation of Building A is not lawfully permitted prior to the issuing of any occupation certificate for that building. 5. As consequence, Toplace has sought to amend Condition 28 so that it would read (the three changes being shown in red): (28) UPGRADE TO EPSOM ROAD/LINK ROAD INTERSECTION (a) Confirmation must be sought from Council that the upgrade to the Epsom Road/Link Road intersection has been satisfactorily completed prior to the issue of any a Final Occupation Certificate. (b) In the case that the upgrade of the Epsom Road/Link Road intersection has not occurred: (i) Prior to the issue of any a Final Occupation Certificate, a plan showing works to upgrade the intersection of Epsom Road/Link Road shall be submitted to and approved by the Director City Planning, Development and Transport. (ii) Detailed signal and road design plans of the proposed new traffic signals and interchange at Epsom Road/Link Road will need to be forwarded to the New South Wales Roads and Maritime Services for approval prior to the commencement of any roadworks. The plans must show all dimensions (e.g. lane width, kerb return radius), pavement marking, bike lane and logo, parking controls, bus zones, pedestrian crossing, median islands, signs and driveways. The New South Wales Roads and Maritime Services fees for administration, plan checking, signal works inspections and project management shall be paid for by the developer prior to the commencement of the works. (iii) Works to upgrade the intersection shall be completed prior to the issue of any a Final Occupation Certificate for Building A. 1. Such amendment would permit Toplace to seek the issuing of an Interim Occupation Certificate prior to the upgrade of the Link Road/Epsom Road intersection. Such an Interim Occupation Certificate would permit Toplace to settle the contracts with its various putative occupiers and permit those putative occupiers to become actual occupants. 2. In 2019, Toplace applied to the Council to modify its development consent, seeking the changes to Condition 28 set out above. That modification application was made pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), a provision relevantly in the following terms: 4.55 Modification of consents (1) … (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) … 1. It is unnecessary to set out the full history of this application to the Council. It is enough to note that it eventually came to be determined by this Court with the matter being heard by Gray C on 8 April 2020, with her decision (Toplace Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1222) being delivered on 19 May 2020. 2. The Commissioner concluded that s 4.55(1A) of the EP&A Act was not available to Toplace for the purposes of seeking the proposed modification to Condition 28 because the amendment sought was not one which was of minimal environmental impact as required by the statutory provision. She therefore dismissed the appeal. It is unnecessary, for present purposes, to set out in detail the Commissioner's reasoning which led her to this conclusion. 3. It is, however, sufficient to note that a further application had been made by Toplace to the Council on 16 April 2020, seeking to have the Council approve modification of Condition 28 (in the same terms as the modification as was subsequently rejected by the Commissioner on jurisdictional grounds). This further application to the Council was made relying on an alternative element of s 4.55 of the EP&A Act, this being s 4.55(2), a provision dealing with more substantial modifications to development consents. 4. On 3 June 2020, Toplace commenced Class 1 proceedings appealing against the deemed refusal of its 16 April 2020 modification application. 5. It is not necessary, for the purposes of that with which I am here dealing, to set out or address any substantive matter arising for consideration in this appeal. The joinder application 1. Toplace's proposed modification application was subject to a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979. This conciliation conference was held using Microsoft Teams on 27 July 2020. No agreement was able to be reached during the conference presided over by Chilcott C and, therefore, the conciliation conference was terminated. 2. On 29 July 2020, the Council filed a Notice of Motion seeking to have Hifu joined as a party to the proceedings. This Notice of Motion was confined to seeking the joinder of Hifu, rather than Hifu and Warehouse, as it was anticipated that Warehouse would file its own Notice of Motion seeking to be joined as a respondent to the proceedings. Such a Notice of Motion was filed for Warehouse on 31 July 2020. 3. As a consequence of Warehouse subsequently indicating that it did not wish to proceed with its Notice of Motion, at the commencement of the hearing before me the Council sought leave to amend its Notice of Motion so as to seek to join Warehouse in addition to Hifu. Leave to amend in this fashion was not the subject of any objection. As a consequence, leave to amend in these terms was granted and the hearing of the motion proceeded on the basis of seeking joinder of both Hifu and Warehouse. 4. It is also to be noted that, on 29 July 2020, Toplace had, itself, filed a Notice of Motion seeking that its modification application proceedings be expedited and that they be heard by a judge. Consideration of that Notice of Motion has been deferred until after my determination of whether or not Hifu and Warehouse should be joined as respondents to the proceedings. 5. In addition to the joinder elements of the Council's Notice of Motion, it also sought the following order: 3 An order pursuant to section 26 of the Civil Procedure Act 2005 referring the proceedings for mediation by a mediator to be agreed between the parties, or failing agreement by a Commissioner of the Court. The joinder hearing 1. The hearing of the Council's joinder motion was undertaken using Microsoft Teams software on 19 August 2020 as a result of the necessary operational constraints on the Court as a result of the COVID-19 pandemic. The evidence at the joinder hearing 1. Two affidavits were relied upon by the Council for this joinder application. They were from: 1. Ms Rosemary Bullmore, a solicitor employed by the Council. Ms Bullmore's affidavit contained two elements that are relevant to my consideration of this motion. Those elements are [14] and [17]. These paragraphs are in the following terms: 14 As such, the intersection works the subject of Condition 28 of the Toplace consent are required to be carried out by Hifu and The Warehouse Pty Ltd (The Warehouse) under the Planning Agreement. If the Toplace consent is not modified, that would make it more likely that the Applicant would need to carry out the relevant intersection works itself in order for an occupation certificate to be granted to permit any occupation of units within the site, thus obviating the need for Hifu to do the work to upgrade the intersection. Conversely, if the Toplace consent is modified as sought by the Applicant in these proceedings, that would make it more likely that the Council would seek to enforce Hifu's obligations to construct the intersection works under the Planning Agreement. … 17 I am instructed that in order for the intersection upgrade to be effected under the existing design, land currently owned by both The Warehouse and Hifu would need to be dedicated to the Council. This land is: (a) the Hifu land; and (b) land identified as "Road 05(A)" and "Footpath Widening 01" on page 43 of the Planning Agreement and which is currently owned by the Warehouse Pty Ltd and 1. Mr Michael Causer, the legal representative for Warehouse. Mr Causer's affidavit had been filed in support of the application of 31 July 2020 for Warehouse to be joined as a respondent to these proceedings. Although, as earlier noted, Warehouse did not pursue this course, nonetheless Mr Lazarus SC, for the Council, read the affidavit of Mr Causer on the Council's amended motion. Mr Tomasetti SC, for Toplace, did not object to the reading of this affidavit, but did note that elements of it, in his view, were of the nature of submissions rather than being of proper evidentiary material. 1. A bundle of documents which had been exhibited to Ms Bullmore's affidavit was tendered and became Exhibit A on the motion. The VPA was at folios 97 to 138 of Exhibit A. It is not necessary to reproduce any of the detail contained in the VPA as the above extracted material provides a sufficient basis to understand the matters needed to be engaged in these proceedings. It is sufficient to note that the VPA was entered into between the Council, on one hand, and a company, Reachdaze (to which Hifu is the successor in title), and Warehouse on the other hand. 2. The Council's Statement of Facts and Contentions in Toplace's substantive Class 1 appeal was tendered and became Exhibit B on the motion. The positions on joinder Introduction 1. TfNSW, Hifu and Warehouse were each represented by counsel in these joinder proceedings. Although there are what can be seen as "flavour" differences in their respective positions, none of them sought to oppose any element required to be addressed by the Council's amended motion. Transport for NSW's position 1. Ms Hemmings, counsel for TfNSW, indicated, in summary, that TfNSW did not propose to take an active part in the joinder proceedings but was supportive of the Council's position - including the issue of referral to mediation. Warehouse's position 1. Mr Tomasetti's written submissions anticipated (based on the appearances before the Registrar on 4 August 2020) what Toplace understood would be the position of Warehouse (referred to below as WG) in these joinder proceedings. His submissions said: 14. On 13 August 2020 WG's solicitors advised that (emphasis is added): After careful consideration, and in particular having regard to the positions outlined by the parties when the matter was last before the Registrar and by the Council in its written submissions filed yesterday, our client no longer wishes to be joined to the proceedings. That position reflects, in particular, an appreciation of the arrangements that exist between Council and HiFu Pty Ltd with respect to completion of the intersection works, noting that although our client maintains that it has some outstanding liability under its Voluntary Planning Agreement, Council's written submissions indicate that both the Applicant and Council are of the view that HiFu bears primary responsibility for the works, and that a bank guarantee (capable of being called on imminently) secures that responsibility. In light of Council's position, including generally its contentions, our client does not consider that its joinder will aid the just, quick and cheap resolution of the proceedings. We note that should Council's position change materially, our client may seek to be joined depending on the nature of Council's changed position. Given what occurred when the proceedings were last before the Registrar, and the Applicant's change of position with respect to its objection (or non-objection) to our client's Notice of Motion, we are content to discontinue our motion with no order as to costs in any respect. 15. This discontinuance caused some embarrassment for the Council and it promptly responded to WG as follows (again with some emphasis added): ..., it appears that The Warehouse Group has misconstrued the Council's submissions. The Council's submissions and evidence in support of its Notice of Motion for Joinder of Hifu Pty Ltd (Hifu) focus on the obligations it says are incumbent on Hifu, because that is the case that the Council is required to make out to be successful on its Motion. In preparing and filing its Motion, evidence and submissions, the Council was cognisant of the fact that The Warehouse Group was seeking joinder to the proceedings on its own Motion. The Council therefore did not seek to address the intricacies of the obligations imposed on The Warehouse Group, eg under the planning agreement. Having said that, we note that the first sentence of paragraph [17] of the Council's submissions refers to both Hifu and The Warehouse Group. To be clear, it is not the Council's position that Hifu 'bears the primary responsibility for the works' as submitted in your email. Rather the Council acknowledges the complex legal arrangements which relate to the intersection and which impose obligations on all 3 parties - being Toplace, Hifu and The Warehouse Group. In this regard we note that the Voluntary Planning Agreement (VPA) which relates to land owned by Hifu and The Warehouse Group respectively, and which imposes obligations on Hifu and The Warehouse Group uses the term 'Developer'. That term is defined as both Reachdaze Pty Ltd (Hifu) and The Warehouse Group cumulatively. The VPA does not separate the work to be undertaken as between the two entities. With this in mind we invite The Warehouse Group to reconsider its position on joinder. Absent this, we are instructed to amend the Council's Notice of Motion to include an order seeking the joinder of The Warehouse Group to the proceedings. It will also then be necessary for the Council to file supplementary submissions (and potentially supplementary evidence) to support the amended Notice of Motion. Given that the Notices of Motion are listed for hearing on 18 August 2020, and the timetable for the preparation of submissions, we ask that you confirm your client's position by midday 14 August 2020. 1. The quotations in the above extract from Mr Tomasetti's submissions are taken from elements of an e-mail chain of 13 August 2020 which was filed as an attachment to his written submissions. 2. As earlier noted, Mr Tomasetti observed that elements of Mr Causer's affidavit were more akin to submissions rather than being evidence. Two of the paragraphs in the affidavit warrant being quoted (with me accepting that the reservation expressed by Mr Tomasetti is appropriately applicable to these paragraphs). These paragraphs, to be regarded as being a submission on behalf of Warehouse, are in the following terms: This Notice of Motion 23. Warehouse is not a party to the Proceedings although any modification to any obligation on the part of the Applicant to carry out the Intersection Works has substantial planning and economic implications for Warehouse. Modification to the conditions the subject of the application before the Court has real implications for the "floating" obligation Commissioner Gray described, leaving Warehouse (as the last mover) with the substantive obligation in respect of the works. While the obligations applying directly to Warehouse in its consent are not changed in form, the change in the consent the subject of these proceedings changes the practical effect of that obligation in substance. 24. Warehouse says that the proceedings directly impact its obligations in respect of the Southern Site and will have planning and economic implications for Warehouse. It is a necessary party to the proceedings, and it is in the interest of justice that it be joined as a party and given full participation in any future conciliation conference or hearing and to be afforded the right to appeal therefrom. 1. However, as was made clear by Mr Stafford, counsel for Warehouse before me, Warehouse no longer opposed joinder and wished to participate in mediation if this was ordered. Hifu's position 1. When the joinder application was before the Registrar on 4 August 2020, the Registrar was informed that Hifu did not oppose its joinder on the assumption that Warehouse was also joined. In Hifu's written submissions before me (from Mr To, Hifu's counsel), it was expressly noted, at [3], that: 3 That qualification is not maintained. Hifu does not oppose its joinder, irrespective of the outcome of the application by Warehouse to be joined. 1. Mr To submitted (both in writing and orally) that it was appropriate for Hifu to be joined as a respondent to these proceedings as Hifu's interests were directly affected by Toplace's proposed modification if approved. In this regard, Hifu supported the submissions made by Mr Lazarus (as later discussed) and it is unnecessary to address Mr To's submissions further as to matters of general principle. 2. It is, however, appropriate to repeat [10] of his written submissions as a specific reason advanced for Hifu as disclosing a direct interest in Toplace's modification application. This paragraph was in the following terms: 10 Further, the construction of the signalised intersection is on land owned in part by Hifu (and which is ultimately required to be dedicated to Council). Ownership of the relevant land on which the work is to be carried out as a separate reason requiring or favouring joinder, for the reasons discussed by the Court of Appeal in Ross v Lane Cove Council (2014) 86 NSWLR 34 at [51]-[68] (Leeming JA). Two possible powers to order joinder Introduction 1. In the Amended Notice of Motion with which I am dealing, the Council seeks the joinder of Hifu and Warehouse on two separate, alternative bases. The first of them is a power to join arising from s 8.15(2) of the EP&A Act. That provision is in the following terms: 8.15 Miscellaneous provisions relating to appeals under this Division (1) … (2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion— (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that— (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal. 1. The alternative basis upon which the Council seeks joinder of Hifu and Warehouse is the more broadly available power of joinder in any civil litigation given by r 6.24 of the Uniform Civil Procedure Rules 2005 (the UCPR). That provision is in the following terms: 6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. (2) … The EP&A Act path is not available 1. At the commencement of the hearing, I indicated to Mr Lazarus that I did not consider that the joinder power pursuant to s 8.15(2) of the EP&A Act was a vehicle available to be used by the Council to seek the joinder of Hifu and Warehouse. This was because, in my view, the word "person" in s 8.15(2), as used throughout that provision, was used in a fashion encompassing a singular individual or entity - a position where that individual or entity was seeking its own joinder rather than that of some other, different individual or entity. I remain of the view that the position I expressed in this regard is correct. 2. In addition, although s 8.15(2) does permit the Court, of its own motion, to order the joinder of an individual or entity, there is nothing in these proceedings that provides a proper basis, I am satisfied, for me to act on that option. 3. As consequence, the sole path that is available to the Council to seek to have Hifu and Warehouse joined as respondents to these proceedings is to seek to have that occur pursuant to r 6.24 of the UCPR. The contested joinder hearing proceeded on this basis. The UCPR path Introduction 1. The dispute between the Council and Toplace about the joinder of Hifu and Warehouse is one of comparatively confined compass. Although Mr Lazarus and Mr Tomasetti expanded upon the relevant portions of their written submissions addressing r 6.24 of the UCPR, for present purposes it is not necessary to summarise these submissions at any great length. The Council's submissions 1. As to the general principles applicable to joinder, Mr Lazarus relied on the summary set out by Craig J in CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (in Liq) (No 2) [2011] NSWLEC 91 at [10] to [12] (CTI Joint Venture). It is not necessary to set out the full extract as reproduced in Mr Lazarus' submissions. Craig J did, however, set out what McHugh J had said, at [77], in Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 (Victoria v Sutton): The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. That practice also assists in avoiding duplication of hearings on the same issues and in avoiding the spectre of inconsistent decisions by courts or the judges of the same court. 1. The full High Court, footnoting (at [80]) the above passage, endorsed that position in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 (John Alexander's Clubs) at [131]: Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct [80]. 1. Mr Lazarus submitted that the Hifu and Warehouse obligations pursuant to the VPA would be directly impacted, adversely to each of them, if the obligation now likely to fall on Toplace by the operation of Condition 28 of its consent were postponed in the fashion sought by this modification application. This was sufficient to mandate joinder of both Hifu and Warehouse. Toplace's submissions 1. Mr Tomasetti's written submissions were originally predicated on the fact that Hifu did not wish to be joined. As earlier noted, this was not the position adopted when this joinder application was heard by me. His oral submissions, however, did respond to the position obtaining at hearing where Hifu and Warehouse did not oppose being joined as respondents. 2. Mr Tomasetti, rather than relying on the decision of Craig J in CTI Joint Venture, referred to the decision of Leeming JA in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA (Ross v Lane Cove) 50 at [51] to [62]. 3. It is unnecessary for this passage to be set out in full. It is sufficient, for present purposes, to observe that the elements cited (and as being referenced by emphasis added in Mr Tomasetti's written submissions) appear to be based on the position that Hifu and Warehouse actively resisted joinder. As things transpired during the course the joinder hearing, this was not the case. 4. However, the proposition Mr Tomasetti derived from the passage he quoted (and as developed in his oral submissions) was that there was a relevant discretion as to whether to join or not - a discretion not appropriate to be exercised in this instance. He submitted that this was because there was, inter alia, no direct interest demonstrated for either Hifu or Warehouse engaged by Toplace's modification application. 5. In broad, the position advanced for Toplace was that the obligations on Hifu and Warehouse exist independently of any potential obligation arising for Toplace and are not potentially directly impacted by Toplace's proposed modification application. 6. Although Mr Tomasetti's written submissions primarily addressed Hifu's position, what he said in his oral submissions was equally applicable to Warehouse. In essence, it was put that each of them would have an adequate opportunity, in the hearing process for Toplace's modification application, to participate by making written submissions to the decision‑maker and to be heard by oral submissions at the (expected) on-site inspection element of the hearing. For this reason, joinder was not necessary. Consideration 1. The elements of Ross v Lane Cove highlighted by Mr Tomasetti relevantly applicable here are those addressing circumstances where there was no desire to participate expressed by the party otherwise potentially proposed to be joined. 2. In [62] of Ross v Lane Cove, Leeming JA set out the position which had been faced by Preston CJ in Woollahra Municipal Council v Sahade [2012] NSWLEC 76. In that instance, although the potential additional respondent was directly affected by the orders that would be the outcome of those proceedings, Preston CJ did not join that potential respondent on the basis that: * the practical impact of the orders on that prospective respondent was low; * its attitude to the orders was abundantly clear (being supportive of the proposed orders); and * it did not wish to be joined or heard in the proceedings. 1. In those circumstances, although the interest of the possible additional respondent was directly potentially impacted, the position of that party, as explained above, provided a proper basis for not proceeding to joinder as a matter of discretion. 2. The present position is to the contrary for both of these putative respondents: * each of them has now, however faintly, indicated that it wishes to be joined; * the modification proposed by Toplace is opposed by each of them; and * there is potentially a significant adverse direct impact on each of Hifu and Warehouse if Toplace's modification application is approved. 1. In these circumstances, that which was said by McHugh J in Victoria v Sutton, and endorsed in John Alexander's Clubs, makes it clear that, under all the circumstances, joinder of both Hifu and Warehouse is appropriate. 2. The VPA obligations binding on Hifu and Warehouse would be impacted, amelioratively for Hifu and Warehouse, if Toplace's modification application was unsuccessful. It is unnecessary to set out the submissions on behalf of the Council demonstrating this in detail; it is sufficient to note that I am satisfied - based on the terms of the obligations that will arise for Toplace concerning construction of the intersection (if its modification application is unsuccessful), refusal does have potentially significantly beneficial impacts for Hifu and Warehouse. In addition, if Toplace is to be required to carry out the intersection works (should its modification application not succeed), the works necessary to be carried out to signalise the intersection necessitate works on land owned by Hifu and land owned by Warehouse. 3. In either of these regards, Hifu's and Warehouse's interests are directly involved and thus, on the basis of the above set out authority, they are required to be joined. 4. Although the decisions concerning joinder in Ross v Lane Cove (cited by Mr Tomasetti and by Mr To) and in CTI Joint Venture were both made in Class 4 of the Court's jurisdiction, nonetheless, they are equally applicable for the purposes of these Class 1 joinder proceedings. 5. This is because, for the reasons advanced by Mr Lazarus, I am satisfied that the outcome of Toplace's modification application, if granted, would directly affect the liabilities of both Hifu and Warehouse because their present obligations within the kaleidoscopic range of interconnecting obligations concerning the Link Road/Epsom Road intersection would be recast - with this recasting being in a fashion which would be detrimental to both Hifu and Warehouse. Referral to mediation 1. As earlier noted, in addition to seeking orders that Hifu and Warehouse be added as respondents to the proceedings, the Council also sought an order that the proceedings be referred to mediation. The terms of the order sought by the Council, in this regard, were: (3) An order pursuant to section 26 of the Civil Procedure Act 2005 referring the proceedings for mediation by a mediator to be agreed between the parties, or failing agreement by a Commissioner of the Court. 1. The power to order mediation is from s 26 of the Civil Procedure Act 2005 (the Civil Procedure Act), a provision in the following terms: 26 Referral by court (1) If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned. (2) The mediation is to be undertaken by a mediator agreed to by the parties or appointed by the court, who may (but need not be) a listed mediator. 1. During the course of the joinder hearing, Mr Tomasetti embraced the concept of a referral to mediation (if I was to conclude that Hifu and Warehouse should be joined to the proceedings). This position was consistent with the acknowledgement by Mr Tomasetti that, upon the joinder of Hifu and Warehouse, his client had a pragmatic commercial imperative to endeavour to resolve the issue of construction of the Link Road/Epsom Road intersection as quickly as possible (whilst not abandoning pursuit of the modification to Toplace's consent as sought by these Class 1 proceedings). 2. I am satisfied that it would be appropriate to refer the matter to mediation pursuant to s 26 of the Civil Procedure Act and the precise terms for such a reference will be settled by me with the parties after my delivery of this judgment. Costs 1. In Thomas v Randwick City Council (No 3) [2019] NSWLEC 161, at [44], I set out a list of cases I had been able to find, until the date of that decision, concerning costs' positions on joinder applications in Class 1 proceedings. The overwhelming preponderance of those matters demonstrated that there was no presumption that costs would be awarded to a successful applicant seeking to be joined as an additional respondent in a Class 1 merit appeal case. I was satisfied that this was the generally appropriate position unless some particular application is made whereby it can be demonstrated some different position should be adopted. 2. However, these proceedings are not ones of such a conventional kind. Here, the Council has sought to have other parties added as respondents where it was not either a putative respondent itself seeking to be joined. It is also the position that those putative respondents have been represented by counsel and have actively participated (although to limited extent) in these joinder proceedings. 3. There is sufficient novelty in this position that I am satisfied that it would be appropriate to reserve the question of costs lest the Council or any of the other (now-to-be-joined) respondents wish to make some application to me concerning the costs of these joinder proceedings. Orders 1. The orders of the Court are: 1. Pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005, Hifu Investment Pty Ltd is joined as the Third Respondent to these proceedings; 2. Pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005, The Warehouse Pty Ltd is joined as the Fourth Respondent to these proceedings; 3. Costs are reserved; and 4. The exhibits are returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2020