Land and Environment Court of New South Wales CITATION : Weston Aluminium Pty Limited v Minister Administering the Environmental Planning and Assessment Act & Anor [2000] NSWLEC 265 APPLICANT Weston Aluminium Pty Limited PARTIES : RESPONDENT Minister Administering the Environmental Planning and Assessment Act & Anor FILE NUMBER(S) : 10397 of 1995 CORAM: Cowdroy J KEY ISSUES: Development Consent :- Modification of development consent - joinder of party permitted if respondent not actively opposing application for modification of development. Environmental Planning and Assessment Act 1979 s 79C(1) LEGISLATION CITED: Supreme Court Rules 1970 Pt 8 r 8 Land and Environment Court Rules 1996 Pt 6 r 1 Re Great Eastern Cleaning Services Pty Ltd and the Companies Act [1978] 2 NSWLR 278 ; CASES CITED: The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (unreported 10747 of 1994, 2 October 1998); Visalli v Southwell (1988) 12 NSWLR 502 ; DATES OF HEARING: 24/11/00, 30/11/00 DATE OF JUDGMENT: 12/14/2000 APPLICANT Mr P Kanjian (Solicitor) SOLICITORS Parry Carroll Kanjian Solicitors FIRST RESPONDENT Ms E Ranken (Solicitor) LEGAL REPRESENTATIVES: SOLICITORS Pike Pike & Fenwick INTERVENER Mr M Fraser (Barrister) SOLICITORS P J Donnellan & Co JUDGMENT: IN THE LAND AND MATTER No. 10397 of 1995 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 14/12/00 Weston Aluminium Pty Ltd Applicant v Minister Administering the Environmental Planning and Assessment Act Respondent Terrence James Kelly Intervener JUDGMENT 1. On 15 November 2000 Mr Colin Maybury, Ms Marsha Maybury and the Kurri/Weston District Concerned Citizens Action Group Inc, ("the second respondents") were granted leave to withdraw from these proceedings. By notice of motion dated 24 November 2000 Terrence James Kelly ("Mr Kelly") seeks to be joined as a respondent in these proceedings. In the alternative the applicant seeks to be substituted for the second respondents. Joinder 2. As provided by Pt 6 r 1 of the Land and Environment Court Rules 1996 an application for joinder in class one proceedings is made pursuant to Pt 8 r 8 of the Supreme Court Rules 1970: see The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (unreported 10747 of 1994, 2 October 1998). Part 8 r 8 of the Supreme Court Rules 1970 ("the SC Rules") provide:- 8 (1) Where a person who is not a party- (a) ought to have been joined as a party; or (b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually completely determined and adjudicated upon. the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceedings. 3. In support of its motion Mr Kelly relies upon the judgment of Kirby P in Visalli v Southwell (1988) 12 NSWLR 502 at 507. In Visalli v Southwell Kirby P at 507 discusses Pt 8 r 8 of the SC Rules as follows:- The rule, and its equivalents, have been interpreted to require regard to be had to the connected principle of natural justice that " all those who will be liable to satisfy the judgment are given an opportunity to be heard ": see Gurtner v Circuit [1968] 2 QB 587. Kirby P at paragraph [F] of 507 continues:- ...that before any such order should be made affecting or purporting to affect a person, such a person should have the opportunity to be heard: see Brown v Rezitis (1970) 127 CLR 157 at 164. 4. These proceedings seek the modification of a development consent granted on 29 March 1996. Mr Kelly will not be legally affected by any judgment of the Court in these proceedings. Accordingly Mr Kelly is not an affected person as discussed by Kirby P in Visalli v Southwell at 507. 5. Counsel for Weston Aluminium Pty Ltd , the applicant in these proceedings submitted that joinder is not ' necessary' because the issues raised by Mr Kelly are addressed by the first respondent as evidenced by its statement of issues of 9 November 2000. The Minister Administering the Environmental Planning and Assessment Act 1979 ("the Minister") who is the first respondent in these proceedings has informed the Court that he neither opposes nor approves the application for modification of development consent and will not be calling or testing any expert evidence. The Minister has also stated that he will facilitate any objections to the modification application. Accordingly even if it were accepted that the issues raised by the Minister encompass the issues sought to be raised by Mr Kelly, the Court is not satisfied that such issues would be adequately ventilated at the hearing because of the passive participation of the Minister. 6. As a result of the Minister's response to the application for modification there are no identifiable ' matters in dispute ' in these proceedings. However Pt 8 r 8 of the Supreme Court Rules 1970 has still been applied in cases where the plaintiff's claims were unresisted: see Re Great Eastern Cleaning Services Pty Ltd and the Companies Act [1978] 2 NSWLR 278 at 281. 6. In determining an application to modify consent the Court is required pursuant to s 96(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act") to have regard to the matters in provision 79C(1) of such Act. Section 79C(1) of the EP&A Act inter alia requires the Court to have regard to the impact of a development upon the natural and built environment and to consider the public interest of a development (see s 79C(1)(b) and s 79C(1)(e) of the EP&A Act). Mr Kelly wishes to adduce evidence in relation to the health and safety impact of the modification to the development consent of the 29 March 1996. Such evidence falls within the ambit of 79C(1) of the EP&A Act and thus would be considered by the Court in its determination of these proceedings. 7. The nature of the evidence the applicant wishes to adduce and the decision of the Minister not to actively contest the proceedings satisfies the Court that the joinder of Mr Kelly is necessary to ensure that all evidence and matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon. Substitution of a party 8. The determination that the Mr Kelly can be made a party to these proceedings makes it is unnecessary to consider the issue of the substitution of the second respondents. Orders 9. The Court orders that:- (1) The motion be allowed. (2) Terrence James Kelly be made a party in these proceedings. 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.