Land and Environment Court New South Wales Medium Neutral Citation: Plumpton Park Developments Pty Limited v Blacktown City Council [2013] NSWLEC 1158 Hearing dates: 5 August 2013 Decision date: 08 August 2013 Jurisdiction: Class 1 Before: Moore SC Decision: (1)Dexus Funds Management Limited is joined as second respondent to the proceedings. (2)The second respondent is to file and serve a Statement of Facts and Contentions by 4.30pm today. (3)The exhibits, other than Exhibits 1 and 10 on the motion are returned; and (4)The matter is adjourned to the s 34 conciliation conference on site at 9.30am on Monday 12 August. Catchwords: Joinder application Legislation Cited: Land and Environment Court Act 1979 Civil Procedure Act 2005 Draft Blacktown Local Environmental Plan 2013 Cases Cited: Dexus Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230 Manderrah Pty Limited v Woollahra Municipal Council [2013] NSWLEC 27 Manderrah Pty Limited v Woollahra Municipal Council (No 2) [2013] NSWLEC 115 Morrison Design Partnership Pty Ltd v North Sydney Council & Anor (2007) NSWLEC 802; (2007) 159 LGERA 361 Quakers Hill SPV Pty Ltd v Blacktown City Council [2012] NSWLEC 200 Category: Procedural and other rulings Parties: Dexus Funds Management Limited (Applicant on the motion) Blacktown City Council (First Respondent on the motion) Plumpton Park Developments Pty Limited (Second Respondent on the motion) Representation: Mr I Hemmings, barrister (Applicant on the motion) Mr S Simington, solicitor (First Respondent on the motion) Ms A Pearrman, barrister (Second Respondent on the motion) Allens (Applicant on the motion) Lindsay Taylor Lawyers (First Respondent on the motion) Eakin McCaffery Cox (Second Respondent on the motion) File Number(s): 10110 of 2013 Judgment 1SENIOR COMMISSIONER: By Notice of Motion filed on 31 July 2013, DEXUS Funds Management Limited (Dexus) seeks an order that that company be joined as Second Respondent to the proceedings and, at the time the motion was filed, that it file and serve a statement of facts and contentions by 4pm on that day. 2The present contest between Plumpton Park Developments Pty Limited (Plumpton Park Developments) and Blacktown City Council (the Council) is set down for a s 34 conciliation conference before me, commencing on site at 9.30am on Monday 12 August. It is that reason, that is the imminence of that conference, makes necessary an early decision on the application for joinder. 3The application is made pursuant to s 39A of the Land and Environment Court Act 1979 (Court Act) that permits, in appeals such as these, amongst other matters proceeding in the Court, that a party may be joined to an 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. 4As Sheahan J observed in Quakers Hill SPV Pty Ltd v Blacktown City Council [2012] NSWLEC 200 at para 18, "the power to join under s 39 is facultative and the relief as to whether such application should be granted is discretionary." 5The first provision in s 39A relates to the addressing of issues that should be considered in a proceeding. This statement is consistent with the overriding purpose of civil litigation set out in s 56(1) of the Civil Procedure Act 2005, that is, "the overriding purpose of this Act and the rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings". 6I observe two things with respect to that provision. The first is that it is not confined to the real issues in the proceedings between the present parties if there are issues that are outside the scope of the current state of pleadings. However, they must be issues in the proceedings, and s 39A of the Court Act provides, as Sheahan J observed, a facultative, discretionary vehicle through which real issues can be brought within the proceedings for hearing and determination. 7The present applicant on the Notice of Motion and the present substantive respondent, Blacktown City Council, have had litigation in the past involving a proposal of the nature currently before the Court in the Class 1 proceedings that are to commence with the conciliation conference next Monday - that is an application to give approval to a shopping centre at Jersey Road, Plumpton. The first application for such a shopping centre on that site was made in about 2008 and was followed, eventually, by a development consent being granted for that purpose. In November 2011, in Class 4 proceedings, Pain J held (in Dexus Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230) that that consent was void and of no effect. 8Essentially, the parties involved in the present proceedings, including the applicant for joinder, coincide with the parties that were involved in the proceedings before Pain J. The applicant on the Notice of Motion is the managing mind of a shopping centre adjacent to the shopping centre proposed to be erected by Plumpton Park Developments. 9In the substantive proceedings, the Council filed, on 2 July 2013, its Statement of Facts and Contentions in the proceedings. It raises two contentions. The first relates to traffic and is a contention in the following terms: The proposal is unsatisfactory with regard to traffic impacts unless the RMS would agree to the proposed sixty per cent cycle time allocation to the shopping centre of the traffic signals to the main access off Jersey Road. 10The second contention, concerning threatened ecological communities, is: Insufficient information has been submitted to enable an assessment of whether the proposal is likely to significantly affect threatened species, ecological communities or their habitats, and therefore whether a Species Impact Statement is required to be submitted and considered. 11The solicitor for the applicant on the Notice of Motion, Mr Paul Lalich, provided an affidavit that was read on the Notice of Motion. Forming the first six pages of Annexure A to that affidavit is a Draft Statement of Facts and Contentions proposed to be filed (or to the effect of that draft) if the applicant on the Notice of Motion is granted leave to be joined. 12The contentions that are there proposed are wide-ranging and extend significantly beyond those raised by the Council, although to some extent, as I will return, in several fashions there is an element of coincidence between some of the matters, that is by topic, raised by the Council and proposed to be raised by Dexus. * The first contention relates to whether or not there is a need for development consent for such of the development that Dexus says is proposed to be undertaken on the land that it manages. * The second is that the proposed development is an over-development. * The third is that there are inadequate access arrangements. * The fourth is that there is an insufficiency of parking proposed. * The fifth is that there is an inadequate traffic impact analysis. * The sixth is that there are material deficiencies in the Statement of Environmental Effects (although I observe with respect to this proposed additional contention that one element concerning stormwater drainage is no longer pressed). In the particularisation to this inadequacy of information, there is a degree of coincidence, but not an entire degree of coincidence, between the position taken by Dexus and the Council concerning endangered ecological communities or species. * Finally, Dexus raises the question of whether the provisions contained in the Draft Blacktown Local Environmental Plan 2013 have been considered or, if they have, whether they have been considered adequately. 13Part of the traffic issues that are proposed to be raised by Dexus relate to not merely the question of the approval by RMS of the change to signalisation at the Jersey Road intersection but also the question of the impact on traffic, that is general traffic - not merely traffic to the property managed by Dexus - that would arise if the traffic signal phasing that is proposed in an assessment report provided by Plumpton Park Developments were to be approved. It is important, as I will later mention, that this aspect of traffic signal phasing relates not only to the impact of such traffic signal phasing on traffic entering the premises that are managed by Dexus but also potentially impacts on the amenity of members of the public whose traffic signal timing, it is contended, would be adversely affected if the traffic signal timing beneficial to the commercial premises were to be approved by RMS. 14Read in the proceedings on the Notice of Motion was an affidavit by Mr Stuart Simington, the Council's solicitor. Mr Simington, perhaps to his relief, was not required for cross-examination on his affidavit. Part of the material contained in the exhibit SGS1 to his affidavit is an internal memorandum of the Council concerning the traffic management issues at the intersection with Jersey Road. It is quite clear from what is set out in that memorandum that, as Mr Hemmings, counsel for the applicant on the Notice of Motion observed, there has been no significant analysis of or consideration of the effects of the change of signalisation timing on the through traffic. The Council's senior traffic management officer observes in the final substantive points on that memorandum that there would be an adverse impact on westbound through movements, but that is not a matter that is pressed as an issue by the Council. 15An affidavit of Mr Timothy Eakin was read on behalf of Plumpton Park Developments. With respect to issues relating to the right of way and traffic matters, he says (at para 6 of his affidavit) that to the best of his knowledge and belief the council has fully considered each of these issues. With respect to traffic issues (at para 8) he says the same thing, that is, to the best of his knowledge and belief the Council has fully considered each of those expert letters and reports. 16Finally, with respect to other matters that have been raised by Dexus, Mr Eakin expresses the general opinion that, to the extent that they were raised in a letter by Dexus dated 20 June 2013, they have also been fully considered by the Council. 17That consideration by the Council is a matter that arises in my consideration of the matters discussed by Preston CJ in Morrison Design Partnership Pty Ltd v North Sydney Council & Anor (2007) NSWLEC 802 vol 159 LGERA at p 361. The letter of 20 June from Dexus to the Council sets out a wide range of matters, effectively but not perhaps entirely reflecting (when, coupled with earlier correspondence between the company and the Council), those matters that are proposed to be pressed in the draft Statement of Facts and Contentions attached to Mr Lalich's affidavit. 18There are a number of general matters that arise from Preston CJ's discussion in Morrison as to whether a party should be joined or not. I propose to refer to three elements of his Honour's decision. 19First, in para 45 in referring to council documents and reports, his Honour said: These council reports, submissions and expert reports are all contained in the council documents. Such material would be provided to the Court in any appeal and would be considered by the Court in determining the appeal. The current parties, Morrison Design Partnership, North Sydney Council and the Director General of Planning, have agreed to representatives of the Owners Corporation and its experts attending the forthcoming s 34 conciliation conference and addressing each of the issues about which the Owners Corporation is concerned and which it wishes to agitate on the appeal. 20Then at para 46, "Accordingly, the issues will be addressed at the forthcoming s 34 conciliation conference." 21Although during the course of her submissions Ms Pearman for Plumpton Park Developments acknowledged that it should reasonably be expected that at the s 34 conciliation conference, Dexus would have the opportunity to express its concerns. There is, as I apprehend the submissions made to me, no express agreement between both the parties presently parties to the substantive proceedings that relevant experts on behalf of Dexus would have the opportunity (at least at the preliminary phases) of attending the s 34 conciliation conference and addressing it on the matters of concern pressed by Dexus in its foreshadowed Statement of Facts and Contentions. 22I also indicate, before I turn to the next matter that arises, that the Council report with respect to traffic light phasing (comprising two paragraphs in the file memorandum of Mr Noor to which I have earlier referred), does not, in my view, constitute in any rational sense an attempt by the Council to have a full understanding of (and express a concerted opinion about) the merits of the proposed traffic light phasing. 23I now turn to what his Honour said at para 54 which reads: The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues that concern them, and those issues are addressed by the consent authority and can be addressed by the court on appeal, it is not necessarily in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to the proceedings. 24With respect to the matters that are raised by Dexus as its proposed contentions, I am not satisfied that all of them are able to be or are likely to be addressed appropriately by the council during any determinative process. They have not, as is not uncommon in other matters in the Court, been pleaded as contentions but subsequently noted as contentions that have been resolved, nor have some of them been expressly described as considered, addressed and resolved to the satisfaction of the Council. 25As a consequence, it seems to me that there are, without needing to go into detail, at least some of the contentions that are raised by Dexus that are prima facie valid - and I express no view by making that comment as to the merits or validity or otherwise of them, merely that they appear from their face to raise issues warranting consideration and are not otherwise adequately addressed by the Council. 26Finally, from Morrison I turn to para 57 where his Honour observed: This is not a case where the court would be deprived of meaningful assistance if the Owners Corporation were not to be 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 the Court. 27Following those remarks, his Honour turned to consider the concept of Double Bay Marina joinder and the purposes of s 39A of the Court Act. 28I am satisfied in the context of that which was discussed by his Honour in para 57 that there would be no meaningful contradictor prima facie, that being all I am satisfied is necessary for me to conclude at this stage of the proceedings, on a not only range of important issues but also on several issues that, if they are in fact established as raised by Dexus, not only go to the merits but also go to the permissibility of at least part if not in some respects major parts of the proposal that is advanced by Plumpton Park Developments. As a consequence, I am satisfied that it would be appropriate to order the joinder of Dexus pursuant to s 39A. 29However, as it was addressed at least by Mr Hemmings at my invitation, I propose also to consider whether it would be appropriate to order joinder pursuant to either s 39A(b)(i) or (ii). 30In this context, two cases were raised in the broader context of managing such a joinder. They are matters in what I will call Manderrah and Manderrah (No 2) to which I will return. However, I am satisfied that the interests of justice that is adverted to in s 39A(b)(i), at least by necessary implication, call up for consideration the provisions of s 56(1) of the Civil Procedure Act 2005. Given the litigation history between Dexus and the Council in the 2011 case before Pain J to which I have earlier referred, it would seem to me probable at the very least that Dexus might consider, and I put it no higher than that, some further litigation in Class 4 if there were to be a development consent arising out of the substantive proceedings and that as an alternative to that, in the interests of the just, quick and cheap resolution of the real issues that would be likely to arise in various proceedings, including possible future Class 4 proceedings, the interests of justice (which are not confined merely to the proceedings themselves as presently pleaded) would be served if the likelihood of further contest were at least possibly able to be avoided by the joinder of Dexus in the present proceedings. I am therefore satisfied that, on the broader interests of justice basis, it would be appropriate to order the joinder. 31Finally, I turn to the question of whether joinder would be appropriate pursuant to s 39A(b)(ii), that is in the public interest. I have earlier referred to the question of the potential impact on the broader travelling public by the proposed alteration to the signal phasing at Jersey Road. The memorandum of Mr Noor dated 28 June 2013 that was part of the material provided in support of Mr Simington's affidavit makes it quite clear that Mr Noor anticipated that the approval of such a change in traffic signalisation phase timing would have an adverse impact on westbound through movements on Jersey Road (as this movement will experience delays almost twofold compared to existing). That is a matter that goes beyond merely the development interests of Dexus, it goes beyond merely the development interests of Plumpton Park, and goes to matters of impact on the broader public. That, in my view, constitutes a matter, albeit a comparatively confined matter, that arises in the public interest. I would also therefore grant joinder on the basis of 39A(b)(ii). 32If it were not sufficient on each of those three grounds to grant joinder, I am certainly satisfied that cumulatively there is an overwhelming preponderance in favour of granting Dexus joinder as the second respondent to the proceedings. 33I adverted earlier to the decisions in Manderrah (Manderrah Pty Limited v Woollahra Municipal Council [2013] NSWLEC 27 - Pain J and Manderrah Pty Limited v Woollahra Municipal Council (No 2) [2013] NSWLEC 115 - Pepper J). I particularly refer to Manderrah (No 2), a decision where her Honour, in dealing with procedural issues, made what amounts to a case management ruling concerning the proposal by a joined second respondent in those proceedings to cast an extraordinarily wide net in his Statement of Contentions compared to the grounds upon which he had based his application for joinder. That case management decision of her Honour's based on the facts and circumstances of the particular case is not binding on me, but I do not wish my conclusion in these proceedings to be taken as a reflection on her Honour's decision, although I am of the view that, on the facts and circumstances of these proceedings, a different path is appropriate to be taken. 34Because the joinder has been made on the basis not only of the issues element of s 39A contained in limb (a) but also on both of the second listed options available listed in s 39A(b), I do not consider it appropriate to contemplate making any order limiting the nature of the participation by Dexus. In any event, had I been minded to consider such a path, it would seem to me that the proposed draft Statement of Facts and Contentions appended to Mr Lalich's affidavit leaves little further to be imagined on behalf of Dexus as capable of being pleaded in the proceedings. However, having made that observation about the breadth of that which they propose to raise, I do not consider it appropriate to limit Dexus Funds Management if there are other matters upon which, on further limited reflection, the company might wish to contend matters in the proceedings. 35As a consequence, the orders of the Court are: (1)Dexus Funds Management Limited is joined as second respondent to the proceedings. (2)The second respondent is to file and serve a Statement of Facts and Contentions by 4.30pm today. (3)The exhibits, other than Exhibits 1 and 10 on the motion are returned; and (4)The matter is adjourned to the s 34 conciliation conference on site at 9.30am on Monday 12 August. 36In the event that either of the respondents, or the applicant in the substantive proceedings, wishes to raise any matters concerning the conduct of the s 34 conciliation conference listed for Monday, as I am seized of the matter for that purpose, I grant liberty to raise any such matters tomorrow provided at least three hours notice of the intention to do so is given to each other party and to the Court's registry. I am available to deal with such matters tomorrow if required. Tim Moore Senior Commissioner 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. Decision last updated: 22 August 2013