Ozone Cronulla Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1078

Land and Environment Court New South Wales

Medium Neutral Citation: Ozone Cronulla Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1078 Hearing dates: 22 February 2019 Date of orders: 25 February 2019 Decision date: 25 February 2019 Jurisdiction: Class 1 Before: Froh R Decision: The Notice of Motion is dismissed. Catchwords: JOINDER: Application for joinder – Statutory tests Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802 Suh v Liverpool City Council [2016] NSWLEC 25 Category: Procedural and other rulings Parties: Ozone Cronulla Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Andrew Brien (Applicant on the motion for joinder) Representation: Counsel: T Hale SC (Applicant) J Farrell (Applicant on the motion for joinder) S Nash (Respondent)

Solicitors: Mills Oakley (Applicant) BCP Lawyers & Consultants (Applicant on the motion for joinder) Sutherland Shire Council (Respondent) File Number(s): 2018/260778 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. Mr Andrew Brien, by Notice of Motion filed 13 February 2019, seeks to be joined as a respondent to Class 1 proceedings instituted by Ozone Cronulla Pty Limited (Ozone) in respect of the refusal of Sutherland Shire Council (Council) to a development application for 5, 7 and 9 Ozone Street, Cronulla, for the demolition of existing structures and the construction of a 9 storey residential flat building containing 30 apartments (the DA). 2. In the alternative to an order for joinder, Mr Brien seeks an order pursuant to s 38(2) of the Land and Environment Court Act 1979 (the Court Act) to participate in the hearing of the matter in the terms set out in the Notice of Motion, being: "to participate in the proceedings on contentions regarding view loss through the making of legal submissions and calling town planning evidence at the hearing, including through the participation of a town planner in any joint conference of experts in town planning that is the subject of directions made by the Court pursuant to r31.20 of the Uniform Civil Procedure Rule 2005" 1. The Motion is opposed by Ozone, the applicant in the substantive proceedings, and the Council neither consents to nor opposes the Motion. 2. The hearing is currently adjourned, and is listed for a third and final hearing day in two days' time on Wednesday, 27 February 2019. 3. The Court has power to make an order for joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). Section 8.15(2) states: The Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the 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. 1. At the hearing of this Motion, Mr Brien submitted that he be joined on all bases, being that: 1. he is able to raise an issue that would not be adequately dealt with if I do not to make an order for joinder; and 2. it is in the interests of justice and the public interest. 1. The questions for my consideration are, firstly, whether there is any issue identified by the applicant for joinder that ought to be raised in the proceedings that would not be adequately dealt with if I was not to make an order for joinder. The second question in this case is whether it is in the interests of justice or the public interest that I make an order for joinder. The third question concerns whether, if I am satisfied that any one of the limbs within s 8.15(2) has been satisfied, I ought to exercise my discretion in favour of making the order for joinder.