Wollondilly Shire Council v McAllister [2016] NSWLEC 96

Land and Environment Court New South Wales

Medium Neutral Citation: Wollondilly Shire Council v McAllister [2016] NSWLEC 96 Hearing dates: 2 August 2016 Date of orders: 02 August 2016 Decision date: 02 August 2016 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [13]. Catchwords: JOINDER: whether necessary for council to join third party to civil enforcement proceedings – third party owner of land upon which alleged unlawful development carried out – whether interests of third party directly affected by orders sought in the hearing – hearing adjourned to enable third party to be joined to proceedings. Legislation Cited: Environmental Planning and Assessment Act 1979, s 121B Cases Cited: Armidale Dumaresq Council v Vorhauer (No 3) [2014] NSWLEC 50; (2014) 205 LGERA 155 Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Category: Procedural and other rulings Parties: Wollondilly Shire Council (Applicant) Robert McAllister (Respondent) Representation: Counsel: Ms Anne Hemmings (Applicant) No Appearance (Respondent)

Solicitors: Hones Lawyers (Applicant) No Appearance (Respondent) File Number(s): 2016/158108

EX TEMPORE Judgment

The Council Has Not Joined a Land Owner to Civil Enforcement Proceedings 1. By summons filed 19 November 2015, the applicant, the Wollondilly Shire Council ("the council"), seeks declaratory and injunctive relief in respect of a failure by the respondent, Mr Robert McAllister, to comply with an order issued by the council on 3 September 2014, under s 121B ("the s 121B order") of the Environmental Planning and Assessment Act 1979 ("EPAA"). 2. The s 121B order was in the following form: ORDERS UNDER SECTION 121B and 121D OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 Take notice that Wollondilly Shire Council hereby orders you to do what is specified below in respect of the land situated at Lot 19 DP 772105, (No 120) Ridgehaven Road Silverdale NSW ("the subject premises" or "premises") being Order Number 1(b) in the table to Section 121B of the Environmental Planning and Assessment Act 1979. Council has considered all of the information on file and any representations made by you in relation to the Notice of Intention to Issue a Notice dated the [sic] 5 August 2014. It has been determined by the Council that the Orders be given to you with an extended time period of 42 days. Order No.1 (b) TO WHOM: Mr Robert McAllister PREMISES: Lots 19 DP 772105, (No 120) Ridgehaven Road Silverdale, NSW TO DO WHAT: 1. To cease using the premises to store the shipping container as identified in attachment 1 marked with the letter "A". REASONS FOR THE ORDER: 2. You are the person using the premises (as that term is defined in s 4 of the Environmental Planning & Assessment Act 1979 (the "EPA Act")) of the Premises. [sic] 1. It is uncontentious that while Mr McAllister owns the shipping container, he does not own the land upon which it is located. That land is owned by his mother, Mrs Joan McAllister, with whom he resides in a dwelling house located on the land. Mr McAllister is her carer. Mrs McAllister is apparently elderly and infirm. 2. It is not known who owns the contents of the shipping container. The container, according to a development application lodged by Mr McAllister in October 2014, is used for the storage of "furniture collectables household items" ("the DA"). The DA was refused by the council on 19 December 2014. 3. An identical s 121B order (to that served on Mr McAllister) had been served on Mrs McAllister, but the council elected not to commence proceedings against her due to her age and ill-health. Thus Mr McAllister is the only named respondent to the proceedings. 4. A preliminary issue therefore arose as to whether or not the council ought to have joined Mrs McAllister as a necessary party to the proceedings. 5. As the Court of Appeal stated in Ross v Lane Cove Council ([2014] NSWCA 50; (2014) 86 NSWLR 34 at [51]-[54]. Applied in Armidale Dumaresq Council v Vorhauer (No 3) [2014] NSWLEC 50; (2014) 205 LGERA 155 at [40]-[51]. See also Woollahra Municipal Council v Sahade [2012] NSWLEC 76 at [76]-[79]): 51. It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders. 52. In the Superleague case (News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy 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?" 53. That test has very regularly been followed. Most recently, in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131], a unanimous High Court said: "Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct. 54. Sometimes it is said, as it was said in the present appeal, that merely giving notice to the person affected by the order is sufficient. It will be necessary to return to this in more detail below, but it should be recognised immediately that joinder, not notice, is the default position. In the Superleague case, their Honours said at 526: "In our opinion, the notice given to the players before trial does not, and could not, extend the jurisdiction of the Court to make orders which offend the test stated in Pegang Mining. Absent an application for joinder by a defendant, or by a third party who claims to be directly affected by the proposed orders, it is for the party prosecuting the proceedings to choose who are the necessary parties to enable the Court to make the orders sought. Generally speaking, to permit [the party prosecuting the proceedings] to transfer to others who might be affected by the outcome of the proceedings the responsibility of deciding whether or not they should apply to be joined could be productive of uncertainty and inconvenience. At times, it could lead to the need to halt expensive litigation part-way through, because a third party insufficiently understood the proceedings, or, through impecuniosity or some other reason, was not adequately advised." (emphasis added) 1. In Vorhauer, the Court dismissed an application for civil enforcement on the basis that the council had not joined the owner of the contents of a shipping container the subject of a removal order. The Court held that the rights of the owner of the contents of the shipping container would be directly affected by any order directed to the owner of the land and the container to remove the shipping container from the land. 2. Not dissimilarly, in Sahade, the Court adjourned proceedings to allow the owners' corporation of a strata plan to be heard because the respondent needed the permission of that entity to enter upon common property to undertake works to remove an unlawfully constructed stairway. 3. Having regard to the authorities referred to above, and although finely balanced, in my opinion, Mrs McAllister ought to be joined as a party by the council. This is because, first, as framed in the s 121B order (and as served), Mr McAllister is to cease using "the premises" to store the shipping container. The "premises" are defined in the s 121B order as Mrs McAllister's land. As the owner of the land Mrs McAllister will be directly affected by the orders sought in the proceedings. Second, although it is unlikely, Mrs McAllister could thwart her son's compliance with the order by refusing entry onto her land of any machinery or persons necessary to give effect to the order. Third, if the council sought, at a later juncture, an order for it to remove the shipping container itself, it would conceivably be committing a trespass if it were to enter onto Mrs McAllister's property without her permission. Fourth, that the ownership of the contents of the shipping container is unknown is a matter of concern to the Court. Some or all of the items stored within the shipping container may belong to Mrs McAllister. And fifth, while it may be presumed that Mrs McAllister is aware of the proceedings, this is not, even if it were correct, of itself, enough (Ross at [54]-[55]). 4. Complicating this situation is the fact that Mr McAllister did not appear at the hearing today. His absence was contrary to the expectation of the council and contrary to his participation to date in the proceedings insofar as he has filed and served two affidavits. 5. In all the circumstances, therefore, it is appropriate to adjourn the proceedings to a date to be fixed to allow the council to amend the summons to join Mrs McAllister.