Land and Environment Court New South Wales Medium Neutral Citation: Robert Ferguson & Associates Pty Limited v Mosman Municipal Council [2016] NSWLEC 58 Hearing dates: 12 February 2016 Date of orders: 12 February 2016 Decision date: 12 February 2016 Jurisdiction: Class 1 Before: Moore J Decision: At [24] Catchwords: JOINDER – application by neighbours to be joined to merit proceedings – likely s 34 agreement between development applicant and council – amended plans – applicants for joinder have seen and commented on amended plans – no basis for joinder – application refused Legislation Cited: Land and Environment Court Act 1979 Category: Procedural and other rulings Parties: Proprietors of SP77545 (First Applicant for Joinder) Robert Zink (Second Applicant for Joinder) Virginia Zink (Third Applicant for Joinder) Robert Ferguson & Associates Pty Limited (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: Mr P Clay SC (Applicants for Joinder) Mr A Galasso SC (Applicant) Mr J Walsh, solicitor (Respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicants for Joinder) Hones Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 10751 of 2013 Publication restriction: No EXTEMPORE Judgment 1. HIS HONOUR: This Notice Of Motion is an application made by three parties, the proprietors of Strata Plan 77545 and Mr Robert and Ms Virginia Zink, to be joined as parties pursuant to s 39A of the Land and Environment Court Act 1979 (the Court Act) to proceedings 10751 of 2013. 2. The proceedings, and the development application to which it relates, have an extensive procedural and litigation history, which is before me set out in the initial pages of an affidavit of Mr James Lovell read on behalf of the applicant in the substantive proceedings on this motion. 3. It is necessary for me to set out a deal of the procedural history from the middle of 2015 onwards, without the necessity to go back as far as the commencement of the application before the respondent Council in 2012, to understand the conclusion to which I have come. 4. I start with a Notice of Motion filed on behalf of the applicant in the substantive proceedings on 18 June 2015. The motion sought leave to rely on amended plans enumerated in the proposed order 1, together with the making of the appropriate costs order in favour of the consent authority as a result of the amendment. 5. Short minutes of order granting that leave, and the relevant costs order, were made by consent on 24 June, together with a requirement that the Council was to file and serve its Statement of Facts and Contentions by 10 July 2015. That direction was complied with, and the Council's Statement of Facts and Contentions was filed on that day and set out a number of contentions and particulars in support thereof at pages 13 to 16 of that document, together with relevant annexures. 6. The matter proceeded to a conciliation conference that was conducted by Pearson C on a number of occasions. However, there is an intervention, at least as I understand, in the timetable (but not being relevant for the purposes of these proceedings, whether that understanding is correct or not), there was a Notice of Motion filed on 10 November 2015 on behalf of the applicant in the proceedings seeking leave to rely on further amended plans. That motion was made returnable on 20 November, but was subsequently deferred. 7. On 25 November, by eCourt, the solicitor for the applicant in the substantive proceedings, with the consent of the solicitor for the Council, notified the Registrar that the Notice of Motion to rely on amended plans ought to be dismissed by consent, and on 26 November the parties were advised by eCourt that that was the case, and the file cover (at the fifth sheet of the procedural record) records the Registrar making those orders by eCourt. 8. The result of that is that as at 4 December, being a relevant date, the plans that were before the Court for the purposes of the conciliation conference were those for which leave had been granted on 24 June and not otherwise. 9. On 4 December 2015, the solicitor for the Council wrote to Mr Fletcher, the town planner retained by the applicants for joinder, advising that the applicant has now lodged amended plans, including an amended landscaping plan which it will be seeking the Court to approve in these proceedings. Those plans were not ones which had been before the Court at that time. I have no knowledge as to whether or not there was consent by the parties to the waiver of the confidentiality with respect to those documents during the course of the conciliation conference. However, Mr Galasso's submissions, which I accept as he is an officer of the Court, are to the effect that his client objects retrospectively, but understandably, to those plans having been provided to the objectors during the course of the conciliation conference process. 10. Nonetheless, those plans having been provided, there have been two consequences of it: 1. One is the procedural consequence that on 17 December 2015, the motion with which I am now dealing was filed making the application for joinder; and 2. Second, Mr Fletcher provided a document dated 16 December (but attached to the affidavit of Ms Baker of 17 December in support of the motion for joinder), providing notes setting out 20 matters of concern with respect to the amended plans. 1. On 22 December 2015, the applicant in the substantive proceedings filed a Notice of Motion to rely on the plans that had been notified to Mr Fletcher, and on 20 January 2016, orders were made by consent, with some handwritten amendments as a consequence of further alterations to the plans to rely on those amended plans. 2. That brings me to my consideration of the matter that I am obliged to address pursuant to s 39A of the Court Act for the joinder of parties to proceedings. These proceedings in the substantive matters are ones to which the provision applies. There are three tests, satisfaction of any one of which would permit an application for joinder to be granted. 3. The first of those is 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. It seems to me that that applies to the circumstances that arise as at the date for application for joinder being made to the Court. 4. The matters that were before the Court as at the date of the application for joinder were those matters contained in the plan for which leave had been given in June 2015 and were not the plans for which leave was subsequently granted after their disclosure by the Council to the applicants for joinder or their planning adviser. 5. I am satisfied, on the basis of the submissions that were made to the original plans which are contained in the extensive documentation attached to Mr Lovell's affidavit, that the applicants for joinder in these proceedings had both an adequate and sufficient time and knowledge to address all of the issues that were before the Court as at the date of the application for joinder and with respect to the plans for which joinder was sought. I am therefore not satisfied that there is any basis under s 39A(a) to join any of the parties for whom application has been made. 6. I now turn my attention to the interest of justice or the public interest, being matters that are raised under s 39A(b)(i) and (b)(ii). 7. I am satisfied that the fashion in which the plans came to the attention of those for whom an application for joinder is made on the basis of such information as is available to me today and on the basis of the submissions made to me today that there is no public interest in permitting joinder, nor is there any interest of justice that is advanced by permitting joinder. 8. Indeed, it is at least possible that it might be contrary to the public interest to permit joinder under circumstances where plans have been disclosed but where, on such material as is presently available to me in the various written submissions and my close examination of the Court file, there does not appear to be any consent pursuant to s 34 of the Court Act to disclose plans that might have been made available during the course of the conciliation conference. It therefore follows that the applications for joinder are dismissed. SHORT ADJOURNMENT WALSH: Thank you, your Honour. I just wanted to correct something that was said in the course of your judgment. HIS HONOUR: Yes. WALSH: It was said, as I recall, that your understanding of what was put to you by Mr Galasso was that there was no consent to the amended plans being notified, and that's not correct. There was consent to that and that was a specific agreement between the parties that those amended plans would be notified. I just didn't want that to go uncorrected. HIS HONOUR: So is there evidence of that, or is it conceded? WALSH: The plans for which leave has been granted to rely. HIS HONOUR: That is the-- WALSH: The latest plans. HIS HONOUR: 24 January, for which-- WALSH: Yes, correct. So those plans that were notified, yes. So I just wanted to correct that. HIS HONOUR: So - and perhaps I'm for Mr Galasso rather more than for you, Mr Walsh - to the extent that I was expressing the view that I had no evidence that the plans that were provided to Mr Fletcher were plans for which I had no basis, from the material on the Court file, to conclude that there was consent to waive the confidentiality provisions of s 34, do you accept that that is an erroneous assumption I've made or not? GALASSO: Yes, and to the extent that I made a submission which gave rise to that inference or implication, I respectfully withdraw it and apologise to the Court. I had no idea that it had been agreed to. HIS HONOUR: All right. GALASSO: I made a submission on the basis of what I understood my instructions - to the extent-- HIS HONOUR: I understand that. GALASSO: As I understand it, there is a letter which is annexure A to Ms Baker's affidavit. It notifies a set of plans. That notification occurred before a motion filed after that date for leave to rely upon amended plans, which coincidentally happen to be the same. As I understand it, the provision of the plans by the letter as annexure A was with consent. 1. Having had that clarified, it seems to me that I should withdraw the basis for the conclusion that I previously stated concerning the question of the public interest. It does not cause me to wish to redeal with the conclusion that I had reached with respect to s 39A(a), that is, the ability to address matters that were formally engaged in the appeal at the time. There is, however, then the question of the fact that the matters that have been submitted by Mr Fletcher in response to the plans that I now accept were properly made available to him, have been available to the Council as the relevant consent authority from the time of provision of those notes to him, they being matters of criticism of those plans. 2. The file records that there have been ongoing discussions between the parties, including during the intervening period of time. Despite the fact that the Council indicated that it might propose to enter a s 34 agreement based on those modified plans, the Council had not indicated an absolute determination to do so. 3. I am satisfied that there is no evidence that would demonstrate that the matters raised in Mr Fletcher's submission have not been considered, and Mr Lovell's affidavit sets out in some detail a range of matters that are the applicant for development consent's response to those matters of concern. 4. I am still satisfied that there is no basis, pursuant to s 39A(a), to join either of the of the applicant interests, although my conclusion in that is less strongly founded, but nonetheless, adequately founded with respect to the neighbouring property to the south represented by its strata plan. 5. With respect to 39A(b), both elements thereof, in the absence of any compelling reason to join under s 39A(a), I am satisfied that it would be inappropriate, given the nature of the conciliation process upon which the proceedings have embarked, the modification process that has been undertaken, and the evolution of the plans that are reasonably to be expected to be the subject of a s 34 agreement in the near future, and the overwhelming desirability of fulfilling the objective of s 56 of the Civil Procedure Act for the just, quick and cheap resolution of the issue genuinely in dispute between the parties, that it would in fact be contrary to the interests of justice or the public interest to permit joinder at this late stage of a s 34 conciliation process. It remains therefore, my conclusion that none of the applicants for joinder should be so joined. Orders 1. The orders are: 1. Application for joinder is dismissed; and 2. Costs are reserved. ********** 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: 18 May 2016