Land and Environment Court of New South Wales CITATION : Alexandria Landfill Pty Limited v Sydney City Council; Alexandria Landfill Pty Limited v Marrickville Council [2004] NSWLEC 639 11312 of 2004 APPLICANT: Alexandria Landfill Pty Limited RESPONDENT: Sydney City Council PARTIES : 11313 of 2004 APPLICANT: Alexandria Landfill Pty Limited RESPONDENT: Marrickville Council FILE NUMBER(S) : 11312 of 2004; 11313 of 2004 CORAM: Pain J KEY ISSUES: Practice and Procedure :- Whether an objector to designated development under the EP&A Act should be formally joined under the Court Act as a party to Class 1 proceedings against the deemed refusal of the development application LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97(4), s 98 Land and Environment Court Act 1979, s 39A CASES CITED: DATES OF HEARING: 12/11/2004 DATE OF JUDGMENT: 11/16/2004 INTERVENER: Ms Duggan (barrister) instructed by Deacons APPLICANT: Mr Green (solicitor) of Pike Pike and Fenwick LEGAL REPRESENTATIVES: MARRICKVILLE COUNCIL: Mr Christmas (solicitor) of Marrickville Council SYDNEY CITY COUNCIL: N/A JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 16 November 2004 11313 of 2004 Alexandria Landfill Pty Limited v Marrickville Council 11312 of 2004 Alexandria Landfill Pty Limited v Sydney City Council JUDGMENT 1 Her Honour: Tallina Pty Ltd has filed two notices of motion seeking joinder as a party under s 39A of the Land and Environment Court Act 1979 ("the Court Act") to two Class 1 proceedings. The applicant on the joinder motion is an objector to a development application lodged by Alexandria Landfill Pty Limited seeking consent for a designated development concerning the Alexandria Landfill. As the land the subject of the development application spans two local government boundaries, Alexandria Landfill Pty Limited was required to lodge development applications with both Sydney City Council and Marrickville Council. The two Class 1 proceedings which the applicant on the joinder motion is seeking to join are appeals commenced by Alexandria Landfill Pty Limited against both Councils' deemed refusals of its development applications for designated development pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 2 Alexandria Landfill Pty Limited does not oppose or consent to the orders sought by the applicant on the joinder motion. Marrickville Council considers the application is premature as the development applications have not yet been determined by either Council and both Councils will meet in early December 2004 to decide whether or not to approve the development applications. Sydney City Council did not wish to make submissions in relation to the application for joinder and the applicant on the joinder motion mentioned the matter on behalf of Sydney City Council. It is not disputed that the applicant on the joinder motion is an objector to the designated development with rights under s 97(4) and s 98 of the EP&A Act. 3 The applicant on the joinder motion argued that it needs to be formally joined as a party in these Class 1 proceedings pursuant to s 39A of the Court Act as there is a possible ambiguity in s 97(4) of the EP&A Act, which states that: If an appeal has been made under this section relating to a development application for consent to carry out designated development, each objector to that application is to be given notice by the consent authority of that appeal and is, on application made to the Court in accordance with rules of court within 28 days after the date of the notice, entitled to be heard at the hearing of the appeal as if he, she or it were a party to the appeal. The ambiguity is said to arise from the words " as if he, she or it were a party to the appeal " which the applicant on the joinder motion argued raises the issue of whether an objector is a party by virtue of s 97(4), and accordingly, whether an objector has appeal rights from a decision of this Court as consent authority. 4 The applicant on the joinder motion argued in relation to s 39A of the Court Act that the public interest and the interests of justice suggested that an order ought be made as the public participation provisions of the EP&A Act would be upheld by such an order. 5 The applicant on the joinder motion further argued that it is seeking to avoid a multiplicity of actions. It was also said that if there was a joinder under s 39A of the Court Act there was a greater likelihood that the applicant on the joinder motion would be able to mount an appeal as it may otherwise be open to the parties to the proceedings to challenge the standing of the applicant on the joinder motion to appeal under s 97(4) of the EP&A Act. Finding 6 I note that there have been appeals to the Court of Appeal where s 97(4) has been the basis for participation by objectors in this Court, in which no issue has been raised about the existence of such an appeal right. I do not consider that there is any ambiguity in the wording of s 97(4) of the EP&A Act. I consider that the words in s 97(4) mean that any objector is entitled under the section to participate as a party and that this includes the right to appeal from a decision of this Court as a party. This view is reinforced by the fact that an objector to a designated development has appeal rights to this Court under s 98 of the EP&A Act if a council decides to approve a development application for designated development. In these circumstances the objector is clearly a party with appeal rights in respect of a decision of this Court. If I am correct there is simply no need for an order under s 39A of the Court Act. 7 If I am wrong, in any event I have to be satisfied that an order under s 39A of the Court Act should be made. 8 Section 39A states: 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. 9 It is simply too early to say whether s 97(4)(a) is satisfied as the Councils' views and the issues between the parties to the appeal are yet to be decided. As regards s 97(4)(b), the issue arises as to whether these tests are satisfied by the fact that this objector has rights under s 97(4) and it is therefore in the public interest that it be joined. I do not think it is appropriate to join someone as a party under s 39A of the Court Act when they already have participatory rights under s 97(4) of the EP&A Act. It is not self evidently in the public interest or in the interests of justice, as the applicant on the joinder motion essentially argued, that these rights should be reinforced by a s 39A order. None of the other arguments in support of the joinder motion demonstrate sufficient public interest or that the interests of justice warrant an order under s 39A of the Court Act. I therefore decline to make the first order sought in the notices of motion. 10 The second order sought by the applicant on the joinder motion is an order that "the intervener (Tallina Pty Limited), be granted leave to lead evidence, cross-examine witnesses and make submissions, and otherwise participate as if it were a party to the proceedings." There is no need for such an order as s 97(4) of the EP&A Act clearly enables participation in the proceedings by an objector, such as the applicant on these motions, and this participation will obviously extend to all the matters specified in the order sought. 11 Orders: 1. The Notices of Motion dated 3 November 2004 filed by Tallina Pty Limited in these proceedings are dismissed. 2. Costs of the Notices of Motion are reserved. 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.