Markham Real Estate Partners Pty Ltd ATF M7 Property Trust v Council of the City of Sydney [2023] NSWLEC 8

Land and Environment Court New South Wales

Medium Neutral Citation: Markham Real Estate Partners Pty Ltd ATF M7 Property Trust v Council of the City of Sydney [2023] NSWLEC 8 Hearing dates: 13 February 2023 Date of orders: 16 February 2023 Decision date: 16 February 2023 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [135] and [136] and directions at [137] Catchwords: REMOVAL APPLICATION ‑ Applicant applies for consent for designated development ‑ submitter lodges objection ‑ Applicant appeals to Court against deemed refusal of development application ‑ submitter notifies Registrar exercising right to be a party to the proceedings ‑ Registrar records submitter as Second Respondent to Applicant's appeal ‑ Applicant files Notice of Motion seeking to have Second Respondent removed ‑ Applicant alleges notification to Registrar made after the expiry of the permitted statutory time period for such notification ‑ two possible dates when Council might be taken to have notified the submitter of the Applicant's appeal ‑ Applicant relies on earlier date for the commencement of the statutory period ‑ submitter relies on the later date for the commencement of the statutory period ‑ position advanced by the Applicant correct ‑ submitter's notification to the Registrar made after the expiry of the statutory period ‑ administrative action taken by Registrar based on (incorrect) assumption conveyed by submitter ‑ appropriate to remove the submitter as the Second Respondent to the proceedings. JOINDER APPLICATION ‑ submitter applies to be joined as party to the proceedings ‑ submitter advances ten contentions proposed to be raised if joined ‑ consideration of whether any of the submitter's proposed contentions raise matters which would otherwise not be sufficiently addressed - consideration of Council's contentions ‑ submitter's contentions different from those raised by the Council - one of the submitter's contentions potentially warrants joinder as a party ‑ Applicant raises discretionary issues against joinder - Applicant's discretionary issues do not warrant rejection of joinder application ‑ submitter joined as Second Respondent based on identified contention ‑ once joined, submitter is a party for all purposes ‑ joinder ordered COSTS ‑ Applicant seeks order for costs of successful motion to remove submitter ‑ Council takes active role in supporting the submitter's case resisting removal ‑ Applicant opposes submitter's application to be joined ‑ appropriate costs outcome that each party bear their own costs of the hearing of the two motions unless some alternative costs order sought within 14 days of the date of the dispositive orders resolving the two Notices of Motion Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.12 and 8.15 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, ss 34 and 38 Local Government Act 1991 Strata Schemes Management Act 2015, s 103 Uniform Civil Procedure Rules 2005, r 6.29 Cases Cited: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66 Category: Procedural rulings Parties: Markham Real Estate Partners Pty Ltd ATF M7 Property Trust (Applicant) Council of the City of Sydney (First Respondent) The Owners ‑ Strata Plan No 70335 (Second Respondent/Applicant for Joinder) Representation: Counsel: Mr I Hemmings SC (Applicant) Mr A Singh, solicitor (Respondent) Dr J Smith, barrister (Second Respondent/Applicant for Joinder)