Reported Decision : 135LGERA 60 Land and Environment Court of New South Wales CITATION : Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555 APPLICANT Mahogany Ridge Developments Pty Ltd PARTIES : RESPONDENT: Port Stephens Council FILE NUMBER(S) : 10526 of 2004 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- Application for joinder by Department of Defence-defended development appeal for tourist development-aircraft noise impact on proposed development. LEGISLATION CITED: Land and Environment Court Act 1979, s 39A CASES CITED: Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; Lowy v The Land and Environment Court (2002) 123 LGERA 179 DATES OF HEARING: 23/09/2004 DATE OF JUDGMENT: 09/30/2004 APPLICANT: Mr M C Fraser, Barrister SOLICITORS Norman Waterhouse Incorporating Taylor Kelso RESPONDENT: Mr J Maston, Barrister LEGAL REPRESENTATIVES: INTERVENOR: Mr A Galasso, Barrister SOLICITORS Respondent: Sparke Helmore Intervenor: Philips Fox JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 30 September 2004 10526 of 2004 MAHOGANY RIDGE DEVELOPMENTS PTY LTD v PORT STEPHENS COUNCIL JUDGMENT HIS HONOUR: 1 By Notice of Motion filed 23 September 2004, the Commonwealth of Australia seeks to become a party to pending class 1 proceedings which were commenced on 7 May 2004 by way of an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the decision of the Council refusing the Applicant's development application for the establishment of a major eco-tourist resort development on land situate at Duns Creek Road, Duns Creek, being land that is included in the Rural 1(a) Zone under the Port Stephens Local Environmental Plan 1987. 2 The Commonwealth's application for joinder is opposed by the Applicant, but is supported by the Council. 3 The joinder application is made pursuant to the Land and Environment Court Act 1979, s 39A which provides as follows: 39A Joinder of parties in certain appeals On an appeal under section 97 or 98 of the Environmental Planning and Assessment Act 1979 , 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. 4 The Council's refusal of the Applicant's development application as notified to the Applicant stated the following reasons for its refusal: 1. The impact of the proposed development is considered to be unacceptable in relation to the: a) amenity of the locality which would be affected b the traffic generated through patron visitation, delivery vehicles, employees and the protracted construction phase. b) the change to the rural character of the locality and the associated social implications of placing a development of such scale and magnitude in a relatively isolated rural community. 2. The information submitted reviewing the likely impact on flora and fauna is considered to be inadequate. 3. The Department of Defence have objected to the development and consider that the proposal could limit the flexibility of Williamtown RAAF Base and potentially compromise national defence objectives. 5 Reason 3 for the Council's determination is reflected in the Council's filed Statement of Issues which includes the following: 6. Whether the proposed development ought to be approved in light of the objection to the proposed development by the Department of Defence. 6 The progress of the present class 1 proceedings should be noted. Following a number of callovers at which usual directions were given, on 27 July 2004 hearing dates were allocated for a local hearing on 20, 21 and 22 October 2004. However, by Notice of Motion filed 31 August 2004, the Applicant sought and obtained an order vacating the hearing dates because it was not ready to proceed. The Applicant was ordered to pay the Council's costs of the Motion and any costs thrown away by vacating the hearing dates. At the time the Commonwealth filed its Motion for joinder, no fresh hearing dates had been sought or allocated. 7 The Commonwealth's application for joinder was supported by an affidavit sworn by its Solicitor Mr Christopher Drury. Annexed to that affidavit are copies of letters from the Department of Defence to the Council objecting to the Applicant's proposed development dating from November 2000 (soon after the Applicant had lodged its development application) to February 2004 (shortly before the Council determined the development application by refusing consent for the reasons I have earlier recited). The stated grounds for the Defence Department's objection to the proposed development remained consistent throughout this unusually protracted period for the determination of the Applicant's development application, namely the adverse military and civilian aircraft noise impact on the proposed development by virtue of the existing flight path of aircraft utilising the Williamtown RAAF Base passing directly above the development site (which comprises some 224 hectares) at low altitudes. 8 Included with the Department of Defence's most detailed written objection to the Council against the proposed development were copies of reports that the Department had commissioned and obtained from (i) Planning Workshop Australia providing a planning evaluation of the proposal (Exhibit B2); and (ii) Airservices Australia providing an evaluation of the aircraft noise associated with the operations of the RAAF Base Williamtown on the proposed development situate some 25-28 km north-west of the Air Base (Exhibit A2). 9 According to the Executive Summary of the latter Report, noise modelling to assess noise impact of aircraft operations was undertaken upon the basis of (i) representative aircraft flight paths determined in consultation with operational staff at the RAAF Base Williamtown; and (ii) estimates of the number of aircraft likely to overfly the development site. Although estimating the number of such aircraft "was difficult to determine accurately" (p 1), the estimate adopted (p 2) was: It is estimated that up to 1,930 of the arrivals on Runway 12 and 430 of the departures from Runway 30 could have overflown the proposed tourist development site. Aircraft undertaking an Initial and Pitch approach and circuit training at the Base are usually confined to within 15 km of the Base and, therefore, were excluded from the calculations to determine how many aircraft were likely to overfly the proposed tourist development site. 10 After referring to Australian Standard AS 2021-2000 Acoustics – Aircraft noise intrusion – Building siting and construction the Executive Summary concludes (p 3): The analysis of military aircraft operations over the proposed development site indicates that most aircraft overflights can be expected to result in maximum external noise levels greater than 60 dB(A) at ground level while some will result in maximum external noise levels greater than 70 dB(A) (and as high as 91 dB(A) in individual cases). Therefore, it can be concluded that overflight of the proposed development site by military aircraft operating from RAAF Base Williamtown will result in noise levels at ground level that can, at times, be expected to exceed the indoor design sound levels specified in AS2021-2000 by up to 31 dB(A). 11 The Department of Defence's written objection to the Council which had submitted copies of the two consultant reports that I have just referred to, elicited a direct response to the Department from the Applicant (the developer) disputing the substance of the Department's objection and requesting the Department to review its position and withdraw its objection (Exhibit C2). In so communicating the Applicant had noted that it had not been provided with a copy of the two consultant reports which had supported the Department's objection. (The evidence does not indicate the outcome (if any) of this correspondence between the Applicant and the Department of Defence). However, as I have earlier noted, the Department of Defence in its letter to the Council on 3 February 2004 maintained its position opposing the proposed development. The basis for the Department's opposition to the proposed development is also detailed in the Federal Minister's letter dated 19 February 2004 to the Local Parliamentary Member Mr B Baldwin MP (a copy of which is annexed to Mr Drury's affidavit). 12 In paragraph 11 of his affidavit, Mr Drury states that from conversations with the Council's Solicitor, the Council in defending the present appeal will be relying upon representatives of the Department of Defence to give evidence on the issues raised by the Department's objections to the proposed development. Notwithstanding that fact (which is much relied upon by Counsel for the Applicant in opposing the joinder application), Mr Drury, in par 12 of his affidavit expresses the opinion that the interest of the Department would be affected by the proposed development and that those issues are "properly the subject of submissions and expert evidence to be led on behalf of the Intervenor by Defence". 13 In opposing the joinder application, Counsel for the Applicant submitted that no foundation had been laid by the would be Intervenor enlivening the Court's exercise of its discretion under s 39A of the LEC Act. As I have earlier noted, the Applicant placed considerable reliance upon the fact that the evidence established that the Council would call in its case defending the appeal evidence from the Department of Defence representatives on the issue of concern to the Department and that fact necessarily excluded the possibility of the Court forming the requisite opinion under par (a) of s 39A. There is considerable force in this submission, especially in the light of the Department of Defence having commissioned consultants to prepare planning and acoustical evaluations and having provided copies of those reports to the Council in 2002 in support of the Department's objections to the proposed development and the Council's reliance upon the Department's objection for refusing the Applicant's development application and in defending the appeal. 14 Prima facie, the calling of expert witnesses who have prepared expert evaluations for the Department could be readily undertaken by the Council's legal representatives at the hearing. However, there remains a real possibility of the respective involvements and interests of the Council and the Department, with the experts commissioned by the Department not being identical. This is especially so in the case of the evidence of the acoustical expert who relied in undertaking his aircraft noise assessment upon information provided by the Department of Defence as to the details of flight operations at the Williamtown RAAF Base which are apt to create noise impact on the proposed development. 15 If the Applicant were to challenge in any fashion the input of the Department of Defence into the acoustical assessment, this could create difficulties for the Council's legal representatives at the hearing which would not be likely to be encountered if the Department of Defence were separately legally represented and itself adduced at the hearing the expert acoustical evidence that it had commissioned rather than in making that expert available as a witness in the Council's case. 16 Section 39A was introduced into the LEC Act by an Amendment Act 2002 which commenced on 10 February 2003 by which time the Court's practice in relation to planning appeals, including the joinder of parties to such proceedings (pursuant to the adopted Supreme Court Rules Part 8) and its allowing more a limited participation by non-parties (popularly known as a 'Double Bay Marina" type order) was very well established (see Lowy v The Land and Environment Court (2002) 123 LGERA 179). 17 The Legislature is to be taken to have been aware of the Court's well-established practice in this respect and also of the state of the existing law whereby the EP&A Act, s 97 constituted as the conventional parties to a development appeal the applicant for development consent and the consent authority. (For present purposes I need not consider the special position provided by s 98 of that Act in respect of an appeal by an objector to "designated development": cf Lowy at 197 per Giles JA). 18 It is clear that the purpose of introducing s 39A into the settled practice of the Court in relation to planning appeals was to broaden the scope of potential parties to a planning appeal by conferring upon the Court a qualified discretion to order the joinder as a party of another person other than the parties constituted by the EP&A Act, s 97 or s 98. It is important to note that the qualified discretion is exercisable by the Court either on the application of the person seeking joinder or on its own motion. In this respect, both in terms of legislative intent and legislative language, s 39A propounds a much broader basis for joinder as a party than that provided by the adopted Supreme Court Rules Part 8. 19 Moreover, the deliberate broadening of the basis upon which persons might become parties to a planning appeal is at least suggestive of an intention to elevate the participation in proceedings of persons who might otherwise enjoy a more restricted participation in a planning appeal by virtue of a "Double Bay Marina" type order being made in favour of that person. 20 This is not to equate the position of a person who might obtain a "Double Bay Marina" type order to the position of a person joined as a party pursuant to a s 39A order. Nor is it to automatically translate the status of such a person in whose favour a "Double Bay Marina" type order has been made to the status of a party pursuant to a s 39A order. 21 In the light of the foregoing considerations, I am of the opinion that the discretion conferred upon the Court by s 39A, although expressly a qualified discretion, is to be construed beneficially as conferring a wide judicial discretion, conformably within the broadly defined grant of power. 22 In the present case, I would reject the Applicant's submission that the would be Intervenor has not laid the foundation for the exercise of the power conferred by s 39A in holding that enough has been revealed in the evidence to justify the opinion being formed by the Court that the Commonwealth of Australia representing the Department of Defence is able to raise an issue that should be considered in relation to the appeal (namely the aircraft noise impact on the proposed development of the flight operations from the Williamtown RAAF Base and conversely the impact on the flight operations of the existence of the proposed major tourist development) which is not likely to be sufficiently addressed if the Commonwealth is not joined as a party. (My emphasis). 23 In the course of argument, I raised the question whether the Court, if making an order pursuant to s 39A in favour of the Commonwealth, could legitimately limit the Commonwealth's participation to the issue which it had raised. The Applicant's Counsel, relying upon the decision of Pain J in Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293 submitted that no conditional order could be made under s 39A. 24 However, this submission was not pressed after I had invited further argument on the question and had received additional submissions on behalf of the Council and of the Commonwealth to the effect that the Court could make a conditional order or otherwise limit the Commonwealth's participation as a party pursuant to the power conferred upon the Court by the LEC Act, s 23 which provides as follows: Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. 25 The reason for my raising that question during the course of the hearing was my concern that the consequences of joining the Commonwealth as a party to the appeal would probably add to the costs of the hearing because of the potential to involve duplication of both the Council and the Commonwealth pursuing the same issue. This would not be fair to the Applicant. In this respect, I suggested that it may be appropriate to limit the Commonwealth's participation to the particular issue it intended to raise (as effected in Issue 6 of the Council's Statement of Issues) and for the Council to effectively transfer to the Commonwealth entire responsibility for pursuing that issue. 26 Although ultimately all parties accepted that a s 39A order might legitimately limit the Commonwealth to a particular issue in the case, both the Commonwealth and the Council submitted that it would be more appropriate to simply order the joinder of the Commonwealth and leave to directions and case management decisions to ensure the efficient and economical presentation of the case. 27 Upon further reflection, although I think the proceedings should have the benefit of case management (which all the parties accept as desirable), I am of the opinion that the joinder of the Commonwealth pursuant to s 39A should be conditional in that its participation should be limited to the particular issue that it has raised and the Council should be directed not to separately pursue that issue, but instead, leave the carriage of it to the Commonwealth. 28 The Commonwealth has prepared a draft of the issues it wishes to pursue in the proceedings (which are amplifications of Issue 6 raised by the Council's Statement of Issues). 29 The order for joinder will limit the Commonwealth to those issues, subject to any further leave or direction that may be made in the proceedings (either in the course of case management or at the hearing). 30 Because of the decision that I have made in respect of s 39A, I do not propose to consider the alternative claim made by the Commonwealth for a "Double Bay Marina" type of order. This was by far the less preferred outcome for the Commonwealth but was the outcome favoured by the Applicant. By limiting the Commonwealth's participation and excluding the Council from duplicating that issue, I am satisfied that no unfairness in terms of additional costs or inefficiencies will be incurred by the Applicant. 31 For all of the foregoing reasons, I make the following orders— 1. Pursuant to the Land and Environment Court Act 1979, s 39A order the Commonwealth of Australia be joined as a party to the proceedings upon the following conditions— (i) its participation in the proceedings is limited to pursuing the following Issues (and any further issues that may by further order be allowed): (a) whether the proposed development ought to be approved in light of the objection to the proposed development by the Department of Defence; (b) whether the development should be approved in circumstances where it is incompatible with pre-existing land uses, namely the Royal Australian Air Force Air Base at Williamtown; (c) if, in answer to Issue (b) the Court is satisfied that the development ought be approved: a. whether the development makes any or any adequate provisions and/or measures for accommodating the impacts to occupants and/users of the proposed development from impacts associated with pre-existing land uses, namely the Royal Australian Air Force Air Base at Williamtown; and b. if it does, whether those provisions and/or measures would operate to constrain the flexibility of use of pre-existing land uses, namely the Royal Australian Air Force Air Base at Williamtown; (d) whether it is in the public interest and the national interest to permit the proposed development (with or without any of the provisions or measures referred to in Issue (c) in close proximity of pre-existing land uses, namely the Royal Australian Air Force Air Base at Williamtown, per se, or in circumstances where the current and future operations of such pre-existing land uses may be compromised or affected by the development; and (ii) that the Council not be permitted to separately pursue the issues that are pursued by the Commonwealth. 2. The proceedings be case managed in accordance with directions to be given by the Registrar. 3. The question of costs on Notice of Motion be reserved. 4. Stand over the proceedings to the Registrar's callover 14 October 2004 . 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.