Land and Environment Court New South Wales Medium Neutral Citation: Positive Change for Marine Life Inc v Byron Shire Council [2015] NSWLEC 147 Hearing dates: 8 September 2015 Date of orders: 09 September 2015 Decision date: 09 September 2015 Jurisdiction: Class 4 Before: Craig J Decision: (1) Order that each of Shuttlewood Properties Pty Ltd and John Vaughan be joined as the second and third respondents respectively in these proceedings. (2) Costs of the motion for joinder are reserved. Catchwords: PRACTICE AND PROCEDURE – application for joinder – r 6.24 Uniform Civil Procedure Rules 2005 (NSW) – whether rights of parties seeking joinder will be affected – proposed works directed to beach protection of landowners' properties – proprietary interests of landowner parties likely to be impacted by injunction – landowner respondents joined as parties Legislation Cited: Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; 64 FCR 410 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Ross v Lane Cove Council [2014] NSWCA 50; 86 NSWLR 34 State of Victoria v Sutton [1998] HCA 56; 195 CLR 291 Category: Procedural and other rulings Parties: Positive Change for Marine Life Inc (Applicant) Byron Shire Council (First Respondent) Byron Preservation Association Inc, John Vaughan and Shuttlewood Properties Pty Ltd) (Second Respondents) Representation: Counsel: I Hemming SC with J Reid (Applicant) M Hall SC with C Novak (First Respondent) A Galasso SC (Second Respondent) Solicitors: Environmental Defendants Office (Applicant) H W L Ebsworth (First Respondent) King Wood Mallesons (Second Respondent) File Number(s): 40784 of 2015 EX TEMPORE Judgment 1. These proceedings were commenced on Friday last, 4 September. They relate to an approval granted by Byron Shire Council (the Council) on 4 June 2015 for beach protection work along a section of Belongil Beach near Byron Bay in northern New South Wales. That approval, which was given by the Council to itself for the carrying out of those works, is said to be one to which the provisions of Pt 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act) apply. 2. The Applicant in these proceedings seeks a declaration that the works that are the subject of the June approval involve an activity that is likely to significantly affect the environment. The Applicant also seeks to restrain the Council from carrying out the work that is the subject of the approval until it has complied with the provisions of s 112 of the EPA Act in respect of its proposed activity, including the preparation and public exhibition of an environmental impact statement for that activity. 3. As the Council has advised the Applicant that it intends to commence work under that approval, the Applicant also seeks an interlocutory injunction to restrain the Council from so doing, pending final determination of the proceedings. The application for that injunction will be heard later today. 4. By Notice of Motion filed on Monday, 7 September, application is made by three parties to be joined as Respondents in the proceedings. Their joinder is opposed by the Applicant. 5. The motion for joinder was comprehensively argued by all parties. As it is necessary that I determine this motion before next proceeding to hear the motion for an interlocutory injunction, my reasons for judgment are given promptly and less comprehensively than I would otherwise have preferred. 6. The joinder application is made under Pt 6 r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW). Sub-rule (1) of that rule provides: "(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party." 1. The principle to be applied in an application under the rule is accepted as being that articulated by Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52. After criticising the dichotomy referred to in earlier cases between "legal" and "commercial" interests, his Lordship said at 56: "A better way of expressing the test is will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?" 1. The test so articulated was adopted by the Full Federal Court in News Ltd v Australian Rugby Football League [1996] FCA 870; 64 FCR 410 and by the High Court in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131]. In this State the principle has more recently been referred to by the Court of Appeal in Ross v Lane Cove Council [2014] NSWCA 50; 86 NSWLR 34 where Leeming JA (Meagher JA and Tobias AJA agreeing) stated at [57] that the joinder of a party directly affected by an order is not ordinarily a matter of discretion. In so saying his Honour referred to the observations of McHugh J in State of Victoria v Sutton [1998] HCA 56; 195 CLR 291 at [77] where the latter Judge said: "77. The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order." (Footnote omitted). 1. In support of their application, the joinder parties relied upon two affidavits sworn by their solicitor, Karen Coleman, on 7 September. They also relied upon a bundle of correspondence, together with an aerial photograph and sectional drawing demonstrating the location of works intended to be undertaken by the Council pursuant to the approval given for those protection works in June last. 2. There are three Respondents for joinder, namely, Byron Preservation Association Inc (the Association), John Vaughan and Shuttlewood Properties Pty Ltd (Shuttlewood). Ms Coleman's affidavit establishes that the objects of the Association are "to inform and safeguard the residents and landowners of all matters pertaining to the Belongil area of Byron Bay". The bundle of correspondence establishes that solicitors acting on behalf of the Association were, prior to commencement of the present proceedings, in contact with the legal representatives of the present Applicant, indicating the concern of members of the Association to have the works proposed by the Council proceed and stating that if proceedings were to be commenced by the Applicant, the Association or its members would seek to be represented in the proceedings. 3. Mr Vaughan and his wife are the owners of a parcel of land known as 22 Childe Street, Byron Bay. That property has a frontage to a section of Belongil Beach. 4. Shuttlewood is the owner of the property known as 20 Childe Street, Byron Bay and as its address suggests, adjoins the property owned by Mr and Mrs Vaughan. It also has frontage to Belongil Beach. 5. The aerial photograph, tendered by the Respondents for joinder, is said to be a document forming part of the record of the Council that not only shows the seaward or eastern title boundaries of each of the Vaughan and Shuttlewood properties, but also has overlaid upon it an indication of the extent of works intended as a consequence of the Council's June 2015 approval. That plan, together with a section drawing attached to it, establishes, at least sufficiently for the purpose of the present application, three matters of present relevance. 6. First, the seaward section of both 20 and 22 Childe Street has been eroded so that the beach, in each case, is landward of the seaward boundary. Second, rocks have been placed along the present beach frontage of the Shuttlewood property but not along the frontage of the Vaughan property. In relation to the latter, a number of geotextile bags containing sand have been placed but photographs otherwise tendered in the documents show these to be somewhat scattered along the frontage of that land. 7. Third, the works intended to be carried out by the Council under the approval extend, for some distance, into each of the Shuttlewood and Vaughan properties. The sections showing the works illustrate a sloping engineered revetment wall, with its toe apparently below the typical sand level and then sloping back above that level into each of the two properties. 8. According to the evidence of Ms Coleman, this section of the Belongil Beach protection works is known as the Manfred Street Works. It is this section of the work that is presently under challenge. The intention of those works is said to be to link the new rock wall with existing rock walls constructed to the north of the Shuttlewood property and to the south of the Vaughan property. Part of the existing rock wall adjacent to the seaward boundary of the Shuttlewood property will either be replaced or supplemented by the proposed work. 9. There are two further matters of present relevance that arise from the evidence of Ms Coleman. First, there has been litigation in this Court between Mr Vaughan and the Council in relation to works directed to beach protection along the frontage of his property. There is presently awaiting hearing in the Supreme Court, a claim for damages brought by Mr Vaughan against the Council that I am told relates to beach protection works. 10. Secondly, it is claimed that the Shuttlewood property is exposed to further erosion in a storm event because of the absence of any rock protection against erosion along the frontage of the Vaughan property. The assertion is made that in a severe storm "the ocean can move across the Vaughan property and on to the Shuttlewood property". This is consistent with what is said to have occurred in May 2009 when a major storm event along this section of the coast occasioned damage to both the Shuttlewood and the Vaughan properties. 11. Applying the principles earlier identified to the evidence supporting the present application, I am not satisfied that the requirements of r 6.24 are met in relation to the Association. While its members (who are not identified) may have a general interest in the protection of Belongil Beach from further erosion due to coastal processes, that general interest neither establishes the Association as a person who "ought to have been joined as a party" or as a person "whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings". The circumstance that the Association had given notice to the legal representatives of the present Applicant that it had an interest in opposing any challenge that the Applicant might make to the Council's approval, does not bring it within the rule. The Association, as a legal entity, cannot claim to be directly affected by any order made in the proceedings. 12. The position of Shuttlewood and Mr Vaughan gives rise to different considerations. They clearly and logically regard the intended works to be beneficial to their property interests. The history of coastal processes affecting their lands provides objective support for their position, as does their consent to works approved by the Council in June last being carried out on their respective properties. 13. The Council's approval to itself to undertake the works created an expectation on the part of Shuttlewood and Mr Vaughan that those works would be undertaken. Whether by reason of that approval or by any antecedent act, that approval created any legally enforceable obligation by the Council at the instance of either property owner is not presently relevant. It is sufficient to observe that any order made in these proceedings has the potential to impact upon the two properties in question and upon any rights against or liabilities to the Council that the property owners may have. As the Full Federal Court in News Limited v Australia Rugby Football League Ltd observed at 525: "The test [articulated by Lord Diplock] involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected." 1. Important property rights are involved as a consequence of the approval that the Council has given. Although there is no necessary bright line distinction between the alternative basis upon which a party may be joined in accordance with r 6.24, in that the facts, as here, may support joinder on either basis, I have reached the conclusion that each of Shuttlewood and Mr Vaughan are persons whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings. I make clear that in so concluding, I rely essentially upon the factual matters that I have discussed. While current litigation between Mr Vaughan and the Council relating to beach protection for Mr Vaughan's property is recorded as a fact, no issue potentially arising in those proceedings, whatever their basis may be, is relevant for consideration by me. The fact that the litigation is ongoing is, in itself, sufficient to be considered in order to make the judgment that joinder should be ordered "having regard to the practical realities of the case". 2. In reaching this determination, I have not overlooked the "overriding purpose" expressed in s 56 of the Civil Procedure Act 2005 (NSW). The joinder of Shuttlewood and Mr Vaughan should not, to my mind, impinge upon the "just, quick and cheap" resolution of issues that arise in the proceedings. Shuttlewood and Mr Vaughan have a single legal representative and senior counsel appearing for them has indicated an expectation that this position will continue throughout the proceedings. Clearly, the Court is able to control any unnecessary use of court time by the addition of these parties and also to control any unnecessary duplication of evidence. 3. For these reasons I make the following orders: 1. Order that each of Shuttlewood Properties Pty Ltd and John Vaughan be joined as the second and third respondents respectively in these proceedings. 2. Costs of the motion for joinder are reserved. ************* Amendments 27 October 2015 - Paragraph 7 - in the quote - none should read non 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: 27 October 2015