Land and Environment Court of New South Wales CITATION : Shellharbour City Council v Dunmore Equestrian Centre Pty Ltd & Another [2008] NSWLEC 163 APPLICANT Shellharbour City Council FIRST RESPONDENT PARTIES : Dunmore Equestrian Centre Pty Limited SECOND RESPONDENT John Nicholas Kosseris RESPONDENT TO NOTICE OF MOTION DLM Certification Pty Limited FILE NUMBER(S) : 41223 of 2007 CORAM: Sheahan J KEY ISSUES: Practice and Procedure :- Application to join certifier as a party Cambridge Credit Corporation Ltd and Another v Parkes Development Pty Ltd [1974] 2 NSWLR 590 CASES CITED: Carriage v Stockland Development Pty Ltd & Ors (No.6) [2004] NSWLEC 541 Minister for Minerals and Energy v Vaughan-Taylor and Another (1991) 73 LGRA 115 DATES OF HEARING: 2 May 2008 EX TEMPORE JUDGMENT DATE : 2 May 2008 APPLICANT Mr J Johnson SOLICITORS Kells the Lawyers FIRST & SECOND RESPONDENT LEGAL REPRESENTATIVES: Mr J Doyle (judgment only) SOLICITORS Thomson Playford RESPONDENT TO NOTICE OF MOTION Ms M Carpenter SOLICITORS Brown Wright Stein Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 2 May 2008 41223 of 2007 Shellharbour City Council v Dunmore Equestrian Centre Pty Ltd & Kosseris EXTEMPORE JUDGMENT 1 His Honour: The Council seeks leave to further amend its Class 4 application in this matter to join as a Third Respondent in the proceedings DLM Certification Pty Ltd ("DLM"), the certifier involved in certain key circumstances the subject of the proceedings. 2 DLM opposed its joinder and was represented by Counsel (Ms Carpenter) at the hearing of the motion this morning. The First and Second Respondents did not appear and Mr Johnson (Counsel for the Council) informed the Court that they neither consent to, nor oppose, the joinder of DLM. The motion for joinder is Prayer No.4 in Council's Notice of Motion dated 19 March 2008, the rest of which notice need not detain me today. 3 The Council had already amended its Class 4 application in a very substantial way on 19 February 2008, adding a number of additional declarations to be sought. One of those, number 4b, would have the Court declare the construction certificate ("CC") granted to the Respondents by DLM on 27 February 2007 void and of no effect, but no order is sought against DLM. 4 Comprehensive Points of Claim, filed on 2 April 2008, detail a number of construction certificates issued in respect of the project which is the subject of these proceedings. The 27 February 2007 CC (issued on 28 February 2007) was stated in the Points of Claim ("POC") (at par 9) to be limited to the construction of the house and garage and to have expressly excluded works approved by two earlier CCs involving house site establishment etc. The Applicant alleges, inter alia, breaches of consent (or lack of consent) in respect of land clearing and road excavation and construction works, allegedly affecting protected lands and SEPP 14 wetlands, and breaches in relation to the placement of fill on the subject land. 5 The POC (in pars 43-45) particularise the Council's attack on the February 2007 CC – it is said to be invalid because: 43: it purports to authorise work not authorised by the modified consent; 44: it is manifestly unreasonable (in the Wednesbury sense) for it to determine that certain works were consistent with the modified consent; and 45: it is beyond power because of one of the preconditions in the modified consent. 6 In the alternative (POC par 46), the Applicant claims that if the CC is valid, certain decisions have been taken and works done by the First and Second Respondents in breach of it. 7 Counsel for DLM has asked the Court today to strike out par 4b of the Amended Class 4 application. She placed in evidence the modified consent and the February 2007 CC. She concedes that, if par 4b is to stand, DLM should be joined in the proceedings, and DLM will take an active and separate role, rather than make a submitting appearance. 8 Her written submissions on pars 43-45 of the POC seek to deny that there is any real substance in the Applicant's attacks on the CC. The certifier was operating clearly within the Environmental Planning and Assessment Regulation 2000 as it stood at the relevant time, and was entitled to rely upon the expert reports submitted to it, as required by the conditions of consent (Exhibit DLM1, conditions 17a, 17b, and 17c). The certifier cannot go behind those reports (which can be found in Exhibit DLM2). 9 DLM further contends that the CC could not authorise fill on the land, because it was concerned with only design and construction of the building. Beyond those matters the Applicant's remedy lies in the breaches it can prove on the part of the First and Second Respondents (including POC par 46). 10 Counsel for the Council relied on an affidavit from his instructing solicitor in the proceedings, Erina Murphy, who explained that the Applicant did not seek to join DLM at the time of the amendment of the Class 4 application, because settlement negotiations were underway among the three existing parties. Those negotiations are still proceeding, but Ms Murphy deposes that the Applicant is not confident that a resolution will be achieved. 11 Meanwhile, in an effort to progress the case in the Court's list, Pain J has recently directed the Respondents to file and serve their Points of Defence by 23 May, and has relisted the matter before herself on 27 May. Her Honour is aware of today's proceedings, and it is clearly important that the Applicant's motion be determined today. 12 While no relief is being sought against DLM, the February 2007 CC will play a key role in these proceedings, and I accept Mr Johnson's submission that the Applicant needs to upset at least part of it. Its validity is a serious issue to be tried, and the challenge to it is not hypothetical, abstract, futile or without substance or purpose, as DLM submits. The utility in seeking the declaration about the CC, but no consequential relief against its author, lies in the developer's inability to rely upon it. Challenges to CCs where fill is involved have succeeded, including on Wednesbury grounds. See Carriage v Stockland Development Pty Ltd & Ors (No.6) [2004] NSWLEC 541, especially at pars [5]-[37]. 13 It follows that I am not persuaded that I should delete par 4b of the amended Class 4 application, and it accordingly follows that the interests of all concerned, including DLM, are served by having DLM joined as a party, and before the Court, in accordance with the Uniform Civil Procedure Rules 2005 rule 6.24(1). 14 The principles that Courts should join parties when it is "very desirable" to do so were enunciated by Hope JA in the Court of Appeal in Cambridge Credit Corporation Ltd and Another v Parkes Development Pty Ltd [1974] 2 NSWLR 590 at 605. In Minister for Minerals and Energy v Vaughan-Taylor and Another (1991) 73 LGRA 115 this Court joined the Minister as an additional respondent, and Meagher JA elaborated on the relevant principles, including the distinction between "proper" and "necessary" parties (at pp.122-123). 15 Joinder of DLM is both "proper" and "necessary" in this case. 16 Accordingly, I grant the order sought in Prayer No.4 of the Notice of Motion, namely: "The Applicant be granted leave pursuant to rule 19.1(1) of the Uniform Civil Procedure Rules 2005 to further amend its amended class 4 application to, pursuant to rule 6.24(1) of those rules, join DLM Certification Pty Limited as a third respondent to these proceedings". 17 Exhibits DLM1 and DLM2 may be returned. 18 The costs of this Notice of Motion are reserved. 19 I make the following directions: (i) Applicant to file and serve its amended Class 4 application and its amended Points of Claim by close of business Monday 5 May 2008. (ii) The Third Respondent to make any request of the Applicant for further particulars by close of business Friday 9 May 2008. (iii) The Applicant to provide the Third Respondent with any requested particulars by close of business Friday 16 May 2008. (iv) The direction by Pain J requiring the filing and service of Points of Defence by close of business Friday 23 May 2008 amended to include the Third Respondent. 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.