Land and Environment Court of New South Wales CITATION : The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 APPLICANT The Carrick Group Pty Ltd PARTIES : RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 10548 of 2010 CORAM: Pepper J KEY ISSUES: PRACTICE AND PROCEDURE :- application to join objector to Class 1 appeal - Double Bay Marina order proposed as an alternative - joinder not required in the circumstances - application refused Civil Procedure Act 2005 s 56 LEGISLATION CITED: Land and Environment Court Act 1979 ss 38(2), 39A Blue Mountains Local Environmental Plan 2005 Aldekerk Pty Ltd v City of Pt Adelaide Enfield and Environment Protection Authority [2000] SAERDC 47 Ali v Liverpool City Council [2009] NSWLEC 107 Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 CASES CITED: Chambers v Maclean Shire Council [2003] NSWCA 100; (2003) 126 LGERA 7 Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; (2009) 167 LGERA 52 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGERA 313 Michael Suttor Pty Limited t/as Michael Suttor Architects v Woollahra Municipal Council [2009] NSWLEC 148; (2009) 169 LGERA 29 Morrison Design Partnerships Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 DATES OF HEARING: 12 October 2010 EX TEMPORE JUDGMENT DATE : 12 October 2010 APPLICANT Ms M Carpenter SOLICITORS Robert Tinsey Pty Ltd RESPONDENT LEGAL REPRESENTATIVES: Ms A Woodward-Brown (solicitor) SOLICITORS McPhee Kelshaw Solicitors LEURA MEMORIAL GARDENS AND CREMATORIUM PTY LTD Mr J Maston SOLICITORS Michael Flaherty Solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PEPPER J 12 October 2010 10548 of 2010 The Carrick Group Pty Ltd v Blue Mountains City Council EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: This is an application filed by way of notice of motion on 1 October 2010 by Leura Memorial Gardens and Crematorium Pty Ltd (ACN 053 431 379) ("Leura Memorial") for joinder as a party to a Class 1 appeal as the second respondent pursuant to s 39A of the Land and Environment Court Act 1979. 2 Leura Memorial seeks joinder "to raise an issue that should be considered, but would not likely to be sufficiently addressed by the Applicant or the Respondent if LMGC is not joined as a party". 3 While Blue Mountains City Council ("the council") neither opposes nor consents to the joinder application, The Carrick Group Pty Ltd ("Carrick"), the applicant to the Class 1 appeal, opposes the order. 4 It does consent, however, to having Leura Memorial heard as if a party pursuant to what is commonly referred to as a 'Double Bay Marina order' (after the case in which such an order was first made: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGERA 313). 5 In my view, joinder is not warranted and the course proposed by Carrick is preferable. I have made orders to this effect. Factual Background 6 The development proposal the subject of the appeal is for alterations and additions to an existing commercial building to accommodate a funeral facility containing administration areas, a chapel, a function area, a mortuary and a crematorium with associated car parking. The site of the proposed development is at 435-437 Great Western Highway, Faulconbridge (Lot 2 DP 208478) ("the site"). 7 The site has a frontage to the Great Western Highway and to Coomassie Avenue. The site currently contains an existing three storey building purpose built as a motor showroom. The site adjoins a motel and a medical centre complex. Shops are located to the south of the development site, on the opposite side of the Great Western Highway. Single dwelling residential development is located to the north and east of the development site. Several dwelling houses are located within 100 m of the proposed cremator stack on the roof of the development. 8 The site is zoned Village – Neighbourhood Centre ("VNC") under the Blue Mountains Local Environmental Plan 2005 ("the LEP"). 9 On 12 March 2010, the development application was submitted to the council. The application was notified to adjoining properties and advertised in the local newspaper from 24 March to 30 April 2010. 10 The council received 626 submissions, comprising 417 letters of objection and 209 letters of support. Various petitions containing several hundred signatures opposing the development were also received. 11 One of the objectors was Leura Memorial and on 28 April 2010, Leura Memorial forwarded an objection to Carrick's proposed development to the council. 12 On 12 July 2010, the council received notification of the Class 1 appeal for the deemed refusal of consent under the provisions of the Environmental Planning and Assessment Act 1979 ("the EPAA"). 13 On 13 September 2010 notification that an appeal had been lodged was received by Leura Memorial. 14 A statement of facts and contentions was filed on 13 August 2010. In it the parties accepted that there was a substantive argument for the conclusion that under the provisions of the LEP the proposed crematorium was permissible with consent in the zone as "commercial premises" (contention B1.9). It was acknowledged, however, that, "the Respondent has received submissions contending that the proposed crematorium is a use of land for the purpose of an industry. The Respondent acknowledges that these submissions merit serious consideration" (B1.9). It was further contended that, "if the crematorium is appropriately characterised as development for the purpose of an "industry" then this component of the development is prohibited in the VNC zone" (B1.10). 15 In an amended statement of facts and contentions filed 23 September 2010, it was contended that (B1.7): (f) noting the matters referred to in paragraph B1.8 below, the proposed cremator unit within the proposed funeral facility is permissible, with consent, in the VNC zone as " commercial premises ", having regard to all of the relevant provisions of LEP 2005, and is appropriately characterised as an independent use of the premises. B1.8 The permissibility of the cremator unit as "commercial premises" is a default outcome, not an outcome that arises from the designation of development for the purpose of a "cemetery" or a "crematorium" as permissible with development consent in the VNC zone. B1.9 Notwithstanding paragraphs B1.7 and B1.8, the Respondent has received submissions contending that the proposed crematorium is a use of land for the purpose of an industry. The Respondent does not adopt these submissions, but acknowledges that the Court will require the parties (both Applicant and Respondent) to address this issue in their respective submissions to the Court concerning the permissibility of the proposed development. 16 B1.10 and B1.11 in the amended statement of facts and contentions state: B1.10 To all the Court to satisfy itself concerning the permissibility of the proposed development, the Respondent notes that the following definition of "industry" appears in the Dictionary to the Respondent's LEP 2005: " industry means an activity involving manufacturing, assembling, altering, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, processing or adapting any goods or articles for commercial purposes and does not include an offensive industry or hazardous industry." B1.11 If the Court considered that the crematorium is appropriately characterised as development for the purpose of an " industr y " then this component of the development would be prohibited in the VNC zone. 17 Finally, under the heading "The Public Interest", it was noted that the council had received many submissions objecting to the proposed development, which have raised, amongst other matters (B15.1): (a) the permissibility of the proposed cremator unit… 18 On 28 September 2010, the council gave both the statement of facts and contentions and the amended version of that document to Leura Memorial. Statutory Framework in Relation to Joinder 19 Section 39A of the Land and Environment Court Act 1979 states as follows: 39A Joinder of parties in certain appeals 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. 20 Section 39A provides for a two stage process before joinder can be permitted. First, the Court must be satisfied that the circumstances of subs (a) or (b) are met, and second, if they are, the Court must determine if it is appropriate to exercise its discretion to join the putative party (Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 at [6] and Morrison Design Partnerships Pty Ltd v North Sydney Council (2007) 159 LGERA 361 at [42] and [43]). 21 The applicable principles in relation to joinder in Class 1 proceedings have been stated in a number of decisions of this Court. In Ali v Liverpool City Council [2009] NSWLEC 107 I summarised and supplemented those principles (at [30]-[32]). For present purposes I adopt that exposition. It is not repeated. The Issue Sought to Be Agitated by Leura Memorial 22 Leura Memorial relied on an affidavit of Mr Michael Flaherty sworn 29 September 2010. He is the solicitor for Leura Memorial. 23 In that affidavit Mr Flaherty stated the issue it seeks to raise as a party as follows, namely, that the council has not put in issue in the proceedings the question of whether the proposed development comprises, or includes, development for the purpose of "industry" within the meaning of the LEP, or whether the proposed development, or alternatively the crematorium, is prohibited development within the meaning of s 76B of the EPAA. 24 In short, Leura Memorial contends that the proposed use of the land is for the purpose of an "industry" which is prohibited under the LEP. 25 This contention is rejected by both the council and Carrick, who assert that the proposed cremator is permissible with consent as "commercial premises", having regard to the relevant provisions of the LEP and appropriately characterised as an independent use of the premises. Submissions of Leura Memorial in Support of Joinder 26 Leura Memorial's submissions in support of joinder may be summarised as: (a) first, that the issue of the unlawfulness of the proposed development is a matter fundamental to the Class 1 appeal with the potential to halt the development entirely. Further, the issue is not likely to be sufficiently addressed by either of the present parties constituting the appeal because both parties contend that the crematorium is not an "industry" under the LEP and that the use satisfies the definition of "commercial premises" and is thus permissible with consent within the relevant zone. Although Leura Memorial acknowledges that the issue is referred to in the amended statement of facts and contentions, it is not confident that the issue will be properly canvassed by the parties and that, therefore, the Court will not properly address it absent full oral and written submissions; (b) second, it will not have any appeal rights should the Court fail to properly consider the issue of the unlawfulness of the proposed development; (c) third, given that it only seeks to put legal submissions to the Court and does not propose to adduce any evidence other than documentary evidence (that is to say, it would not rely on any expert evidence), joinder will not jeopardise the hearing of the proceedings which have been set down for three days commencing 15 November 2010 before Dixon C; (d) fourth, nor will joinder materially add to the cost or length of the proceedings; and (e) fifth, it has acted swiftly in bringing the application. 27 Put simply, Leura Memorial submits that if it is not permitted to be joined as a party to the proceedings there will be no contradictor that will adequately assist the Court in relation to the fundamental issue of whether or not the proposed development is lawful within the zone. Submissions of Carrick Opposing Joinder 28 Carrick submitted that: (a) the Double Bay Marina orders proposed by it in a set of short minutes of order handed up to the Court more than adequately permit the participation of Leura Memorial in the proceedings by enabling it to make comprehensive written - and if appropriate, oral - submissions to the Court on the issue of the lawfulness or otherwise of the proposed development; (b) even if the crematorium is not permissible development, this will not of itself cause the development to terminate because the development is of a composite nature; (c) joinder would unnecessarily result in a multiplicity of parties and add to the cost and length of the hearing; (d) joinder would have an attendant risk that the hearing dates would be vacated because expert evidence was currently being prepared by the parties and Leura Memorial may seek to become participants in this process; (e) the submissions by Leura Memorial as an objector are public submissions and must, together with the contention in the amended statement of facts and contentions, be taken into account by the Court as a relevant consideration. Failure to do so would result in appellable error. Given the explicit reference to the issue sought to be raised by Leura Memorial in the amended statement of facts and contentions, it is fallacious to suggest that the Court will not properly consider it; and (f) when regard is had to the definition of the term "industry" in the LEP, it is apparent that any issue as to the lawfulness of the proposed development can only be characterised as weak. In support of this submission Carrick relied on the decision of Aldekerk Pty Ltd v City of Pt Adelaide Enfield and Environment Protection Authority [2000] SAERDC 47 (at [35]). Foreshadowed Separate Question 29 Leura Memorial foreshadowed that if it were successful in its application for joinder it would seek to raise as a separate question: Whether the development application the subject of this appeal is prohibited development within the meaning of Section 76B of the Environmental Planning and Assessment Act 1979 in that, Blue Mountains Local Environmental Plan 2005 prohibits development on the land for the purpose of "industry" and the development application includes development for the purpose of an industry, namely development for the purpose of a crematorium. 30 Initially, Leura Memorial indicated that it would seek to have this question determined by a judge at a separate hearing prior to the substantive appeal being heard. Later, however, it accepted that Dixon C had the power to determine the issue and that it could be accommodated within the ambit of the three day appeal. 31 This is undoubtedly correct. Furthermore, it has the advantage of ensuring that the appeal can proceed on the date allocated to it (although it must be acknowledged that it could have the effect of marginally extending the time required for the hearing). Leura Memorial Ought Not be Joined to the Proceedings 32 In my view, the proposed course suggested by Carrick goes a large way towards addressing the concerns of Leura Memorial (Michael Suttor Pty Limited t/as Michael Suttor Architects v Woollahra Municipal Council (2009) 169 LGERA 29 at [19]). It is, in my opinion, the most cost effective way in which the issue of the lawfulness of the proposed development may be raised. 33 I do not accept the submissions of Leura Memorial that, particularly in light of the particular contentions contained in the amended statement of facts and contentions, absent its full participation in the proceedings as a party the Court will not be able to sufficiently appraise itself of the issue. 34 I am also cognisant of the undesirability of having a multiplicity of parties in the proceedings. This should, where appropriate, be avoided. 35 As a discretionary matter I was influenced by the definition given to "industry" and "commercial premises" in the LEP. 36 The term "commercial premises" is defined in the LEP to mean "a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere defined in this Dictionary". 37 As referred to above, the term "industry" is defined in the LEP Dictionary to mean "an activity involving manufacturing, assembling, altering, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, processing or adapting any goods or articles for commercial purposes and does not include an offensive industry or hazardous industry". 38 Without in any way determining the issue, at first blush, the use of the crematorium does not sit easily with the definition of "industry" in the LEP. 39 While mindful of the caution urged upon me by Leura Memorial that in Aldekerk the Court had regard to a different definition of the term "industry", I nevertheless found persuasive for present purposes the observations made by the Court (at [35]) in that decision (emphasis added): 35 In the matter of Smith v South Australian Planning Commission and City of Whyalla (PAT 527 of 1992 delivered 23 rd June, 1993), the Planning Appeal Tribunal considered the question of whether the operation of a crematorium could be regarded as "industry" as so defined. The Tribunal concluded that the operation of a crematorium is not an industrial activity for two reasons. The first reason was that the crematorium was proposed by a Council and thus could not be regarded as an activity being undertaken "in the course of a trade or business". It does not apply in this case. However, the second reason is applicable, and we adopt it. The Tribunal said:- " The second reason is that we do not regard the words 'treatment of materials', as appearing within the definition of 'industry', as extending to the cremation of human beings. We do not think that it was ever intended that the words should be so construed. Human beings, be they either alive or dead, are not generally regarded as being mere articles or materials - for example, one would not generally regard a hospital as constituting an industrial use, which should be located in an industrial zone, because its principal function is the repairing of articles, namely medically defective human beings. Hospitals are prescribed as 'prohibited' in many industrial zones. Similarly, one would not, we think, generally regard a cemetery as constituting a 'junk yard' as defined because it constitutes 'land used for the ..... abandonment ..... of ..... scrap materials'. Although the view that the human body constitutes merely an 'article' or 'materials' is not altogether illogical, it constitutes a view which, in our opinion, is not widely accepted throughout our community. References to articles or to materials are not, except in exceptional circumstances, taken as being references to human beings. The vast majority of people within the community would find such a concept unacceptable, if not repulsive. Hospitals are not industries and cemeteries are not junk yards . By the same reasoning, we do not regard crematoria as constituting industrial furnaces used for the 'treatment of materials'. Hence, we do not regard the proposed crematorium as constituting an industrial use." 40 Having said this, I accept the force of Leura Memorial's submission that an application to a council for a prohibited development may not be an application for the purposes of the EPAA, and accordingly, the council may not have power to consent to it (Chambers v Maclean Shire Council (2003) 126 LGERA 7 at [37]-[38] and Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52). However, this is a submission that Leura Memorial will be afforded the opportunity of making to the Court during the appeal by reason of the orders proposed. 41 To the extent that Leura Memorial described Carrick as having "a philosophical objection" to its joinder on the basis that Carrick had agreed to afford Leura Memorial a fulsome opportunity to be heard in the appeal, this submission only served to reinforce my opinion that joinder was not required. 42 While I accept that joinder would not cause a material amplification in the cost and hearing time of the proceedings, and moreover, that there is no real risk of the appeal hearing dates having to be vacated, the fact remains that the issue Leura Memorial seeks to agitate will nevertheless be before the Court. 43 Accordingly, and while I further accept that the issue is an important one, which if determined adversely against Carrick will have a significant impact on both the proceedings and the proposed development, I am nevertheless confident that the orders proposed by Carrick will permit the Court to properly have regard to, and consider, whether or not the crematorium use is permissible or prohibited within the zone. 44 It is for these reasons that I decline to make the joinder order sought. To do so would not, in my opinion, promote the "just, quick and cheap" resolution of the real issues in the proceedings (s 56 of the Civil Procedure Act 2005), particularly when the procedural fairness about which Leura Memorial complains if joinder is not granted, will, in my view, be afforded to it in any event by the orders made by the Court. Conclusion and Orders 45 It is for these reasons that the Court is of the opinion that the application by Leura Memorial to join the proceedings as a respondent must be refused. 46 However, and as is apparent from the reasons given above, I propose to make orders ensuring the Leura Memorial is afforded an opportunity to present whatever submissions it wishes to make to the Court at the Class 1 appeal on the issue of permissible use. 47 The orders of the Court are therefore as follows: (1) that the application by Leura Memorial Gardens and Crematorium Pty Limited ("Leura Memorial") pursuant to s 39A of the Land and Environment Court Act 1979 to be joined as the second respondent in these proceedings is refused; (2) that pursuant to s 38(2) of the Land and Environment Court Act 1979 Leura Memorial is permitted to prepare written submissions on the contention that the cremator aspect of the proposed development is prohibited within the Blue Mountains LEP 2005 VNC zone; (3) that the parties and Leura Memorial are to file and serve written submissions on the issue described above in paragraph (2) on or before 8 November 2010; (4) that Leura Memorial is permitted to orally address the Court on its submissions referred to above in order (2) at the earliest available opportunity convenient to the Court and the parties in the Class 1 appeal; (5) that the proceedings are listed for a case management conference by telephone at 9.30am on 1 November 2010 before Commissioner Dixon; and (6) that there is no order as to costs in respect of this motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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