Land and Environment Court New South Wales Medium Neutral Citation: Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 85 Hearing dates: 14 June 2017 Date of orders: 14 June 2017 Decision date: 14 June 2017 Jurisdiction: Class 1 Before: Moore J Decision: At [21] Catchwords: JOINDER - application for joinder as party to a Class 1 merit appeal - statutory tests to be applied - first test (party will raise matters that would not otherwise be raised) - no evidence matters proposed to be raised had been addressed by the Council as consent authority - joinder granted Legislation Cited: Civil Procedure Act 2005, s 56 Environmental Planning and Assessment Act 1979, s 79C Land and Environment Court Act, ss 38(2), 39A Draft State Environment Planning Policy (Educational Establishments and Childcare Facilities) 2017 Ku‑ring‑gai Local Environmental Plan 2015 Ku‑ring‑gai Development Control Plan Cases Cited: Manderrah Pty Ltd v Woollahra Municipal Council (No 2) 2013 NSWLEC 115 Morrison Design Partnership Pty Ltd v North Sydney Council & Anor 159 LGER 361; [2007] NSWLEC 802 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 Category: Procedural and other rulings Parties: Omid Mohebati-Arani (Applicant) Ku-ring-gai Council (Respondent) Loyal Henry Community Association Incorporated (Applicant for Joinder) Representation: Counsel: Ms R McCulloch, solicitor (Applicant) Ms R Knapman, solicitor (Respondent) Dr J Smith, barrister (Applicant for Joinder) Solicitors: Pikes and Verekers Lawyers (Applicant) HWL Ebsworth (Respondent) Storey & Gough (Applicant for Joinder) File Number(s): 309535 of 2016 Publication restriction: No EXTEMPORE Judgment 1. HIS HONOUR: The Loyal Henry Community Association Incorporated (the Association) has applied to be joined as a respondent to the proceedings between Mr Omid Mohebati-Arani (the Applicant) and Ku-ring-gai Council (the Council), which proceedings are presently set down for a two-day hearing before a Commissioner in late June 2017, some two weeks or so away, at most. 2. The application is made for joinder to be effected pursuant to s 39A of the Land and Environment Court Act (the Court Act) or, in the alternative, pursuant to s 38(2) of the Court Act, through what is known as a Double Bay Marina Joinder. As I indicated to Dr Smith during the course of his submissions, I am satisfied that s 39A effectively codifies the basis for joinder and that it is no longer appropriate to consider joinder under s 38(2). It, therefore, behoves me to consider whether or not I should deal with joinder on that basis. 3. I observe that the Application for Joinder is resisted by the Applicant in the substantive proceedings and that the Council has taken a studiously neutral position on whether or not joinder should be granted. 4. The terms of s 39A of the Court Act sets out three potential bases upon which it is appropriate to contemplate joinder. They are, first, in s 39A(a), that the person, in this case the Association, 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, second, the two tests in s 39A(b), being, first, that it is in the interests of justice that the Association be joined or, second, that it is in the public interest that the Association be joined. 5. I observe that, as part of the test in s 39A(b)(i), I need to balance the imperatives set out in s 56 of Civil Procedure Act 2005 (the Civil Procedure Act) with the legitimate interests of the potentially affected parties to the merit appeal - in particular, those of the Applicant - to be able to have sufficient time to prepare a response to the matters if joinder is to be granted. Dr Smith, on behalf of the Applicant for Joinder, raises a number of bases that are set out in the proposed Statement of Contentions upon which the Applicant for Joinder would rely. That Statement of Contentions is contained behind Tab 9 to the affidavit of Mr Gough, an affidavit that was read on the Motion. 6. Dr Smith indicated that, if joinder were to be granted, a Statement of Contentions, in the form there set out, would be filed on behalf of the Association. That draft Statement of Contentions sets out a number of matters that the Association says require to be addressed by its experts, as they warrant the refusal of the application. The Association anticipates that it will call town planning, heritage, and acoustic evidence. The Association has already retained experts in those disciplines and has provided me (as part of the material attached to Mr Gough's affidavit), firstly, a report by Mr Brindle, a town planner, on the amended plans that would be relied upon before the Commissioner or Judge who might hear the matter, together with an acoustic report that was appended to Mr Brindle's affidavit. 7. The material contained in the proposed pleadings discloses that the Association would wish to raise matters that are mandatory to be considered in any assessment of the Applicant's proposal as they arise under the Ku‑ring‑gai Local Environmental Plan 2015 (the LEP), or that require to be considered, in an appropriate fashion, as arising under the Ku‑ring‑gai Development Control Plan (the DCP), a development control plan, necessarily, being required to be a focal point of an assessment of the merits of the proposal, as was confirmed by the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167. Those are all powerful matters in favour of the application to join. 8. Contrary to that, however, is the position to which my attention has been drawn, arising out of the decision of the Chief Judge in Morrison Design Partnership Pty Ltd v North Sydney Council & Anor 159 LGER 361; [2007] NSWLEC 802 (Morrison Design), at [44], where his Honour, in addressing the question of whether it was appropriate to join the applicant for joinder on the basis of the first limb in s 39A of the Court Act, noted that the relevant issues pressed by that application for joinder had been raised repeatedly before the Council, were discussed in the council officer's reports, and were addressed in the submissions of the Owners Corporation and in the reports of the experts engaged by the Owners Corporation. 9. His Honour continued to observe that, in [46], representatives of the Owners Corporation and their experts may also be called by the Council, at the hearing, on the merits in those proceedings. 10. In this instance, my enquiry of the representative of the Council as to whether the Council would, as part of the Council's case, call the experts that were retained by the applicant Association was that there were, at the present time, no instructions that that be the case and that I was not able to be assisted on that point. 11. There is no doubt that the representatives of the Association would be entitled to give evidence, as is traditionally the case for objectors, and that that evidence would be called in the Council's case. It is not necessarily the position that expert evidence not relating to matters in contention, pressed by the Council, would be called. 12. I am satisfied that the various matters in Contentions 1, 2, 3, 4 and 5, proposed by the Applicant Association's seeking to be joined, are ones, when compared to the Amended Statement of Facts and Contentions pressed by the Council, are not matters that would be dealt with in the Council's evidence. 13. I have also been taken, by Dr Smith for the Applicant Association, to the terms of the draft State Environment Planning Policy (Educational Establishments and Childcare Facilities) 2017 (the draft SEPP), and the draft Childcare Planning Guidelines that are referred to in the draft SEPP. The draft SEPP has been on exhibition, an exhibition process which concluded in April 2017. It is a draft environmental planning instrument in the terms defined by the Environmental Planning and Assessment Act 1979 (the EP&A Act), and is a matter for mandatory consideration in any merit assessment, made pursuant to s 79C of that Act. Dr Smith has taken me to a number of matters arising out of that draft instrument which, he says, also require consideration on a merit assessment of this proposal. 14. To the extent that that might be the case and the extent to which weight should be given to that document, that would be a matter for the person hearing and determining the merit appeal. Critically, for the purposes of my assessment, the Chief Judge adverted, in [44] of Morrison Design, as I earlier indicated, that the question of whether the matters pressed by the Applicant for Joinder in those proceedings had been addressed in the council officer's reports was a matter of some importance in his determining whether or not to grant joinder. In these proceedings, I do not have the benefit of the council officer's reports. I have no knowledge of whether the various, quite detailed matters of objection have been canvassed in those council officer's reports. 15. As a consequence, given that the matters that are set out in the proposed draft contentions submitted on behalf of the Applicant Association disclose quite detailed matters of concern to the Association - appearing on the face of the document to be appropriately and adequately particularised - I am satisfied that the test in s 39A(a) is satisfied and that the Association should be joined as a party to the proceedings. 16. Having reached that conclusion, it is unnecessary for me to consider whether or not joinder would be appropriate under s 39A(b)(i) or (ii). 17. I now propose to deal with the question of vacation of the hearing dates and the question of what might be the appropriate course to follow. Before I do so, it is appropriate for me to observe that, although Pepper J concluded, in Manderrah Pty Ltd v Woollahra Municipal Council (2) 2013 NSWLEC 115, it was possible to restrict the role that a joined party could take in proceedings (that being a case where her Honour had struck out a number of contentions on behalf of the joined party on the basis that joinder was limited), I am satisfied that the proper position now adopted by me, and other members of the Court, is that, once a party is joined, they are joined for all purposes, including engaging with contentions that may otherwise be pressed by another party to the proceedings. 18. It seems to me that, although the Applicant for Development complains that there has been delay on behalf of the Applicant for Joinder in filing its motion, that is appropriately and adequately explained by the interaction between the Association and the Council, as detailed in Mr Castle's affidavit read on the Motion. Although there is, undoubtedly, a prejudice to the Applicant for Development in the vacation of the hearing on the dates set at the end of June 2017, I am satisfied that it is necessary for those dates to be vacated. 19. I have reached that conclusion for two reasons. First, I am satisfied that the range of additional matters pressed by the now Second Respondent to the proceedings is sufficiently wide that it would not be reasonable to mandate the Applicant for Development to be in a position to respond to those matters within the comparatively short period of time, nor, to the extent that it might wish to do so, is it appropriate to require the Council to respond to those matters within the limited period of time, given that, by necessary implication, the Council is satisfied on all those matters now to be contended. 20. Having said that, however, it is appropriate to deal with the question of what would otherwise be the delay in bringing the matter on for a hearing, in light of what is my second concern; that is, the fact that it is likely that a two-day hearing would be insufficient for the purposes of canvassing all matters, even if joint conferencing, without the preparation of individual expert reports, were proposed to be ordered. 21. I therefore order: 1. The Loyal Henry Community Association Incorporated is joined as a party to matter number 2016/147872; 2. Hearing dates of 27 and 28 June 2017 are vacated; 3. Statement of Contentions (Exhibit 9 of the Affidavit of Christopher Calvert Gough, filed 6 June 2017) Is to be filed by 4.30 pm on 14 June 2017; 4. Parties to settle agreed hearing dates of up to four days commencing on either of 17 July 2017, 7 August 2017 or 14 August 2017; (4a) Matter to be heard before a Judge; and 1. Adjourned to 15 June 2017 at 4.15 pm. ********** Amendments 19 July 2017 - Text format error in Catchwords rectified. 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: 19 July 2017