Land and Environment Court of New South Wales CITATION : KSK Developments Pty Ltd v Murray Shire Council [2009] NSWLEC 1215 APPLICANT KSK Developments Pty Ltd PARTIES : RESPONDENT Murray Shire Council FILE NUMBER(S) : 11263 of 2008 CORAM: Acting Registrar Gray KEY ISSUES: SECTION 97 APPEAL :- Application for a third party objector to be joined as a party - Nature of consent orders hearing Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Murray Local Environmental Plan 1989 CASES CITED: Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 Morrison Design Partnership Pty Ltd v North Sydney Council & Anor [2007] NSWLEC 802 DATES OF HEARING: 5 May 2009 DATE OF JUDGMENT: 13 May 2009 APPLICANT ON MOTION M Baird SOLICITORS David Geddes APPLICANT N Eastman LEGAL REPRESENTATIVES: SOLICITORS Cosgriff Orchard Legal RESPONDENT M Seymour SOLICITORS Kell Moore Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES ACTING REGISTRAR GRAY WEDNESDAY 13 MAY 2009 08/11263 KSK Developments Pty Ltd v Murray Shire Council JUDGMENT 1 ACTING REGISTRAR: This is an application made by Reid's Farms Pty Ltd to be joined as a party to the proceedings. The proceedings concern an appeal pursuant to section 97 of the Environmental Planning and Assessment Act 1979 from a deemed refusal by the Murray Shire Council of a development application for a tourist development on the Murray River. 2 The appeal was filed with the Court on 15 December 2008. Following the commencement of the proceedings, the Council granted conditional consent to the development application. Condition 3 of that consent is a deferred commencement condition requiring amended plans to be submitted that moved the proposed tourist cabins so that they were set back from the bank of the Murray River by a distance of at least 60 metres. This set back is a requirement of the Murray Local Environmental Plan 1989 ("LEP"). I note that Reid's Farms have lodged a Class 4 application for judicial review of that conditional consent. 3 A critical issue arose between the parties to these proceedings in relation to the meaning of the word 'bank' as defined in the LEP. Whilst the Council's view was that the bank was the top of the high bank of the river, the applicant's view was that the bank should be appropriately defined to mean the average water line of the river. This issue was listed for preliminary determination before Pain J, who determined in favour of the Council and found that the word 'bank' meant the top of the high bank of the river. 4 In light of Pain J's determination, the applicant for development consent then lodged a Notice of Motion seeking leave to rely on amended plans. The orders sought in that Notice of Motion were granted by consent on 24 April 2009. The amendments varied the distance of the buildings from the Murray River so that there was a set back of 60 metres from the high bank of the river. As a result of the amended plans that are now before the Court, there remain no issues in contention between the parties to the proceedings and the Council has indicated that it is in a position to have the matter proceed to a consent orders hearing before a Commissioner. 5 It is in this context that Reid's Farms Pty Ltd ("Reid's Farms") moves on its Notice of Motion, filed 12 March 2009, to be joined as a party to the proceedings. The applicant for development consent opposes the joinder of Reid's Farms. The respondent Council neither consents nor opposes the application. The hearing of the Notice of Motion was before me on 5 May 2009. 6 Section 39A of the Land and Environment Court Act 1979 allows the Court to make an order for joinder. It provides: On an appeal under section 96 (6), 96AA (3), 96A (5), 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. 7 It is well established that the exercise of power under s 39A is discretionary. Not only must the Court be satisfied that sub-ss (a) or (b) is established, but it must also consider that in the circumstances it is appropriate to exercise the discretion to make the order for joinder. The applicant for joinder relies on s39A(a) and submits that in the circumstances I should make the order sought for them to be joined as a second respondent to the proceedings. 8 In support of its application, the applicant on the motion relies on the affidavit of Chris Kinnane sworn 24 March 2009. The affidavit sets out the nature of previous involvement by Reid's Farms in development applications made by KSK Developments. A similar development on the same site was approved by Council on 2 October 2007. Reid's Farms then commenced proceedings in Class 4 of the Land and Environment Court seeking judicial review of the Council's decision. The Council and KSK Developments each filed submitting appearances. Reid's Farms were successful in their challenge of the Council's decision and orders were made on 12 December 2008 setting aside the development consent. The affidavit annexes the points of claim filed in those proceedings. 9 At the time the affidavit was read in court, objection was made by the respondents to the motion to much of the content of the affidavit. This objection was on the basis that the previous Class 4 proceedings bear no relevance to the issues before the Court in relation to an application under s 39A. I will return to that objection in the course of providing reasons for my decision below. 10 Reid's Farms has also filed a Statement of Contentions outlining 10 contentions that it seeks to raise in the proceedings. The first of these contentions asserts that the amended plans require additional information for proper assessment, including a Statement of Environmental Effects and details of the site including density, set-backs and location of the high-bank of the river. The second contention indicates that insufficient details have been provided of the staging of the development "including rehabilitation plan, road works, sewerage treatment and landscaping". It also raises the issue of density and the lack of clarity in any change to the size of the allotments. Contention 3 raises issues in relation to compliance with Clause 13 of the LEP and Contention 4 alleges that the development application is not consistent with the Murray Regional Environmental Plan No 2 – Riverine Land ("REP"). The fifth contention alleges that the development does not comply with Clause 6.1 of the Murray Development Control Plan ("DCP") which requires tourist facilities to be located within 10km of a Postal Office. The sixth contention alleges that the development is in breach of Clause 20 of the LEP in that a development of this nature is not permitted with frontage on Perricoota Road as proposed. Contention 7 asserts that the amended plans do not show the location of sewerage facilities and that therefore the application ought not to be granted by virtue of Clause 7.2 of the DCP. 11 Contention 8 raises the issue of an inconsistency between the conditions of approval of the current amended plans and the conditions of the previous development consent which was subsequently set aside by the Court. Contention 9 then raises an issue in relation to section 94A contributions. Finally, contention 10 states that "[c]umulative impacts of these non-compliances [with] the relevant LEP and DCP have not been addressed." In clarification of this contention, the applicant for joinder asserted that there is no assessment of the cumulative impact of the development and such an assessment is necessary for the determination of the development application. 12 The applicant for joinder submits that the issues identified by the statement of contentions would not adequately be addressed by the Court if the joinder was not granted. It is submitted on their behalf that there is no evidence that the Council has conducted a full assessment of the development application in light of the provisions of the LEP, REP and DCP that are specifically identified in the statement of contentions. In light of this, the applicant for joinder says that those issues are ones in relation to which expert evidence addressing the issue of compliance ought to be adduced by Reid's Farms. 13 The applicant for joinder also submits that on the evidence currently filed in the proceedings the issues identified by Reid's Farms will not be sufficiently addressed by the Court in considering consent orders. In particular, Mr Baird for the applicant for joinder, has drawn my attention to Issue D of the town planning and assessment report prepared by Blueprint Planning and Development on 5 November 2008. In a letter dated 5 November 2008, the planner who prepared the report indicates that changes have been made to the report that reflect errors identified by Reid's Farms Pty Ltd in a submission dated 3 November 2008. Those changes were made without affecting the conclusions reached in the report. The applicant for joinder submits that it was erroneous for the planner to assert that the conclusions do not change in light of the variations made to its content. The submission is that on this evidence alone, it is clear that the Court will not be apprised of the real issues that it must deal with in determining the application unless the applicant for joinder is permitted to raise those issues as a party to the proceedings. 14 The applicant for joinder submits that it is appropriate in the circumstances of these proceedings that the Court's discretion to order joinder should be exercised in its favour. This is on the basis that the applicant for joinder has, by its previous conduct in bringing successful Class 4 proceedings, demonstrated legitimate concern for the development on the subject land. It is submitted that there is no evidence that the applicant for joinder is an officious bystander and that the evidence shows that Reid's Farms has a history of raising genuine issues before the Court for consideration. Further, the applicant for joinder also submits that it would be in furtherance of the overriding objective to facilitate the quick, just and cheap resolution of the real issues in the proceedings if the order for joinder was made. In support of that submission, the applicant for joinder states that Reid's Farms would meet any timetable for directions leading up to a hearing date and that they would also dispose of the current Class 4 proceedings. 15 The application for development consent has provided detailed written submissions that oppose the orders sought in the notice of motion filed by the applicant for joinder. 16 In both written and oral submissions counsel for the applicant for development consent has drawn my attention to a number of previous decisions of this Court in relation to the question of joinder pursuant to section 39A. In Morrison Design Partnership Pty Ltd v North Sydney Council & Anor [2007] NSWLEC 802, His Honour Preston CJ considers section 39A in its entirety and summarises the history and purpose of that section. His Honour indicates that the section allows the Court to order joinder where the Court would otherwise be deprived of any meaningful assistance. In relation to section 39A(a), His Honour outlines the purpose at [59] as being: "to allow the joinder of a person as a party to enable issues to be sufficiently addressed and hence to inform the Court so that it can give proper consideration to the issues." 17 In Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63, His Honour Lloyd J found at par 17 that where the applicant for joinder raises matters that are properly matters for the consideration of the applicant for consent and the Council, the applicants for joinder are: "in effect, officious bystanders who happen to be trade competitors of the applicants for development consent and with no legitimate interest in the internal activities on the development site." The applicant for development consent submits that Reid's Farms are officious bystanders who do not have cause to be joined as a party under any of the limbs in section 39A. 18 In making this submission, the applicant for development consent addresses each of the contentions raised by the applicant for joinder. In relation to the first and second contentions, the applicant for development consent submits that firstly the amended plans should be considered alongside the reports and other material before the Court in the agreed bundle of documents. Secondly, it submits that the minute details of the plans are appropriately dealt with in the application for the construction certificate. In relation to contentions 3, 4, 5 and 6, the applicant for consent submits that those matters are already adequately dealt with by the town planning and assessment report prepared by Blueprint Planning and Development on 5 November 2008. Referring to contention 7, the applicant for development consent points out that the matter is already before the court in the form of a proposed condition of consent. It is also submitted that contentions 8 and 9 are not appropriate matters to be brought before the Court and that contention 10 is meaningless on its own. In light of these submissions, the applicant for development consent argues that all of these issues, insofar as they are relevant, are already before the Court for consideration. It is also submitted on their behalf that the applicant for joinder would therefore be an unnecessary party in a hearing before the Court in circumstances where no matters of evidence have been raised. 19 The applicant for development consent also submits that the nature of a consent orders hearing is such that it is not necessary for the court to order joinder where the issues raised are those already before the Court. It is submitted that all of the relevant issues raised in the contentions of the applicant for joinder are necessary for the Commissioner to consider in the ordinary course of determining, in accordance with s 79C of the Environmental Planning and Assessment Act 1979, whether the consent orders should be made. The applicant for consent therefore submits that there is no utility in the applicant for joinder being present as a party to the proceedings to raise those issues. 20 In particular, counsel for the applicant for consent points to the bundle of documents filed in the proceedings to demonstrate that whilst there are no contentions that remain in the proceedings, there are a number of issues that have been addressed by Council in the assessment process. It is submitted that the Court at the consent orders hearing will have all the evidence before it and can determine the application without the assistance of the applicant for joinder. The applicant for consent also says that there is no evidence of the identity of the applicant for joinder and so the applicant may be a trade competitor who is an officious bystander. 21 Whilst the Council does not oppose the orders sought, Mr Seymour makes a number of submissions on behalf of the Council for the Court to consider in determining the application for joinder. The primary submission made by the Council is that the fact that there are no contentions that remain in the proceedings does not result in the Council not playing an active role in the assisting the Court to perform its assessment of the development application. 22 Both the Council and the applicant for consent have drawn the Court's attention to the provisions of the relevant Practice Note, which makes it clear that there is an obligation on the Council to assist the Court in the assessment process. That assistance includes identifying the relevant issues for assessment including the relevant DCP, LEP and other applicable planning law. Once those issues and the relevant planning provisions are identified, this then allows the Court to conduct its own assessment of the development application. 23 The Council also addressed each contention separately in making its submissions. The Council submits that contentions 1 and 2 can be dealt with by way of conditions. It draws to the Court's attention the fact that there is already material before the Court in relation to contention 3. In relation to contention 4, the Council submits that whilst the REP provides obligations to consult and "bear in mind" particular issues, it does not form a ground for the council to refuse the development application. 24 In relation to contention 5, the Council submits that the DCP cannot prohibit development application that is permissible. It submits that in any event, the Council will have to address this before the Court even in consent orders hearing and it will be incumbent on them to do so. In relation to the sixth contention, the Council submits that this is an appropriate matter for submissions at the consent orders hearing if the Court requires it to be addressed. The Council also submits that contentions 8 and 9 aren't appropriate to bring before the Court for determination. In relation to contention 10, the Council says that it will be required at the consent orders hearing to demonstrate the impact of the development. 25 Mr Seymour indicates that on the Council's view there is nothing in the development application to warrant refusal. Accordingly, the Council will participate in a consent orders hearing and assist the Court to make a proper determination of the application. The Council also points out that the material before the Court in the consent orders hearing necessarily includes the objections lodged by Reid's Farms, and that the Council would allow Reid's Farms to give evidence as an objector. Mr Seymour has also indicated also that if a joinder is ordered, Council will take a back seat and allow the issues to be determined as between Reid's Farms and KSK Developments. 26 In the circumstances and having regard to the evidence filed in the proceedings, I cannot accept that it is appropriate to order the joinder of Reid's Farms as a respondent to the proceedings. I form this view for the following reasons. 27 Firstly, the previous history of the Reid's Farm's involvement with development on the subject site is not relevant to my determination of the current application. This is fundamentally the nature of the objection, raised by the respondents on the motion to the admission, to those parts of the affidavit of Mr Kinnane being read in Court. Just because the applicant for joinder has successfully brought proceedings in the Court in relation to similar development on the same site by the same party does not mean that the issues they raise in the current proceedings would not be sufficiently addressed if they were not joined to those proceedings. Further, the decision of Lloyd J to overturn the Council's decision following judicial review of the previous development consent on the same land for the same applicant does not automatically lead to the conclusion that the Council is not a meaningful participant or that it will support an approval in these proceedings that is contrary to planning laws. The matter first for my determination is whether section 39A(a) is made out by the applicant for joinder and if so, and I must secondly then consider whether I should exercise my discretion to order the joinder. The facts and circumstances of the previous Class 4 proceedings bear no relevance to the first matter for determination and will have very little weight in considering the second. 28 Secondly, I am not satisfied that the issues raised by Reid's Farms are not likely to be adequately addressed without the joinder. In other words, I am of the view that section 39A(a) has not been made out by the applicant for joinder. The applicant for joinder makes the mistake of assuming that where the development application proceeds to a consent orders hearing, there will be no meaningful contradictor. At par 57 of Preston CJ's decision in Morrison Design Partnership Pty Ltd v North Sydney Council, in determining that joinder should not be ordered His Honour said: "This is not a case where the Court would be deprived of meaningful assistance if the Owners Corporation were not joined. Sometimes, by reason of agreement being reached between an applicant for development consent and the consent authority, there may be no meaningful contradictor and important issues that the Court needs to consider in order to give a proper and lawful decision, will not be available." To order joinder, I must therefore be satisfied that Reid's Farms would, if joined, provide meaningful assistance in circumstances where if the matter proceeds without joinder there will be no meaningful contradictor. In order to be satisfied, I will need to turn to the nature of the consent orders hearing and to the contentions raised by the applicant for joinder. 29 The indication that the parties will proceed to a consent orders hearing is not, in itself, sufficient to establish that at the hearing there will be no meaningful contradictor. I accept the submission of the applicant for development consent that at the consent orders hearing it is incumbent on the parties and on the Council to assist the Court to assess the development application. The consent orders hearing is not merely a procedural requirement for the making of final orders. Rather, it is an opportunity for the Court to be provided with all the relevant information and planning laws in order to make its own determination of the development application in accordance with section 79C of the Environmental Planning and Assessment Act. It is required to do so pursuant to its powers arising under section 39 of the Land and Environment Court Act. Preston CJ's sets this out in par 46 of his Morrison Design Partnership Pty Ltd v North Sydney Council: "It is the practice of the Court, as set out in the Practice Note Class 1 - Development Appeals, that on a consent order hearing, the consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. The consent authority is required to demonstrate that it has given reasonable notice to all persons who objected to the proposed development and advise them that will have an opportunity to be heard before the Court: see paragraph 36." 30 The contentions raised by the applicant for joinder are not such that the Court can be satisfied that Reid's Farms will provide meaningful assistance to the Court at the consent orders hearing. I accept that each of the points of contention have been adequately addressed by the Council in such a way as to ensure that the relevant issues will be before the Court for consideration at the proposed consent orders hearing. In relation to contentions 1 and 2, I accept the submissions of the applicant for consent that the details of the amended plans ought to be considered alongside the other material already before the Court in relation to the original plans. I also accept the submission that given that there is a requirement for the issue of a construction certificate, the consent at this stage relates to the concept and that further consent would be required to carry out the construction. 31 Contentions 3, 4, 5, 6 and 7 relate to the provisions of planning instruments, including the REP, the DCP and the LEP. These are all addressed in the planning report that is currently filed in the proceedings. Contention 10 asserts that there has been no assessment of the impact of the development in light of the alleged non-compliance with the planning instruments. The applicant for joinder seeks to file evidence in support of its contentions on those points. I cannot accept that such a course is necessary or appropriate. The planning report currently filed in the proceedings deals with those instruments and the issues arising therein. Whilst the applicant for joinder submits that the conclusions of that report are inconsistent with the content of the report, I am of the view that the Commissioner hearing the proceedings will be of sufficient expertise to form their own finding based on the contents of the report and the provisions of the planning instruments. Further, contention 7 is currently before the Court as a proposed condition on the grant of consent. Accordingly, I am satisfied that the issues raised in contentions 3-7 and 10 are likely to be sufficiently addressed by the Court without Reid's Farms being joined as a party to the proceedings. 32 In my view it is correct to say that contentions 8 and 9 are issues that should not be legitimately before the court in these proceedings. Accordingly I accept the submission of the applicant for consent on this point. A condition imposed on previous development consent relating to the same land can not be a proper issue for consideration by the Court. Further, it is not appropriate to raise the issue of s 94A contributions in the course of these proceedings. 33 The relevant issues that are articulated by the applicant for joinder in its statement of contentions are therefore likely to be sufficiently dealt with by the Court when it considers the consent orders proposed by the parties. Reid's Farms will have the opportunity to participate in the consent orders hearing by giving evidence as an objector. Based on the contentions currently raised, they can provide no meaningful assistance to the Court if they were joined as parties to the proceedings over and above that assistance that they will provide by giving evidence as an objector. The issues raised by them are likely to be adequately dealt with by the presentation of the material that is currently on the court file, including planning reports and submissions, without their participation as a party to the proceedings. 34 Accordingly I am not satisfied that s 39A(a) has been made out by the applicant for joinder and I order that the Notice of Motion filed by Reid's Farms Pty Ltd be dismissed. 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.