Land and Environment Court New South Wales Medium Neutral Citation: Captive Vision Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1331 Hearing dates: 29-30 May 2019 Date of orders: 15 July 2019 Decision date: 15 July 2019 Jurisdiction: Class 1 Before: Froh R Decision: The Court orders: (1) Roads and Maritime Services is joined as the Second Respondent. (2) The proceedings are listed for directions at 9AM on Tuesday, 16 July 2019 before the Registrar. Catchwords: JOINDER – application for joinder – Crown's right to appear Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005 Roads Act 1993 Cases Cited: Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11 Smith v Wollondilly Shire Council [2004] NSWLEC 194 Vanadi Pty Ltd v Leichhardt Council; MSB Sydney Ports Authority Intervening (1994) 85 LGERA 87 Vella v Penrith City Council [2019] NSWLEC 62 Category: Procedural and other rulings Parties: Captive Vision Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Roads and Maritime Services (Applicant on the motion for joinder) Representation: Counsel: J McKelvey (Applicant) M Astill (Applicant on the motion for joinder) Solicitors: McKees Legal Solutions (Applicant) M Hanna, Wilshire Webb Staunton Beattie (Respondent) Clayton Utz (Applicant on the motion for joinder) File Number(s): 2019/34878 Publication restriction: No Judgment 1. REGISTRAR: By Notice of Motion (NOM) dated 20 May 2019, the Roads and Maritime Services (RMS) seek an order that it be joined as a party in Class 1 proceedings between Captive Vision Pty Ltd and Ku-ring-gai Council. 2. The Class 1 proceedings, which are the subject of this NOM, comprise an appeal by Captive Vision Pty Ltd against Council's refusal to issue a construction certificate in respect of the placement of advertising signs on the pedestrian air bridge located at Gordon over the Pacific Highway. 3. The Pacific Highway is a classified road and accordingly requires the concurrence of RMS before the Council can grant an approval under s 138 of the Roads Act 1993. 4. The RMS by letter to Council dated 28 February 2017 states that: "Roads and Maritime [Services] has reviewed the submitted documents and does not grant concurrence for the erection of these structures over a classified road as proposed advertising signs have been identified as safety hazards for the road users." 1. The Applicant was granted a modification to its development consent by Council on 26 July 2018. However, the RMS refused to give any concurrence on the grounds set out in its earlier letter of 28 February 2017 and extracted at paragraph [4] above. 2. There is no dispute between the parties that the RMS enjoys all rights, privileges and immunities as the Crown. 3. The RMS sought joinder to these proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), or alternatively, under r 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR). 4. Counsel for the Applicant helpfully drew the Court's attention to the fact that the power to joinder under s 8.15(2) of the EPA Act does not extend to an appeal against the refusal to issue a construction certificate. 5. Counsel for the RMS agreed with this. As such, the first order sought by the RMS in its NOM is no longer pressed. 6. Counsel for RMS referred me to the case of Vella v Penrith City Council [2019] NSWLEC 62. In that case, the NSW Department of Education sought joinder on public interest grounds under s 8.15(2) of the EPA Act which was granted. In considering that decision, Moore J considered s 64(1) of the Land and Environment Court Act 1979 (LEC Act) and the rights of the Crown. 7. Submissions were made about s 64(1) of the LEC Act during the hearing of the Notice of Motion, which confers a general right on the Crown to appear before the Court in any case in which the public interest or any right or interest of the Crown may be affected or involved. 8. Counsel for the Applicant referred me to the case of Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11 in which Pepper J drew a distinction between the right of appearance under s 64(1) of the LEC Act and that of a party joined to proceedings. Her Honour referred to the two cases of Vanadi Pty Ltd v Leichhardt Council; MSB Sydney Ports Authority Intervening (1994) 85 LGERA 87 (Vanadi) and Smith v Wollondilly Shire Council [2004] NSWLEC 194. 9. Although I note that Vanadi was decided by Pearlman CJ prior to the insertion of s 39A into the LEC Act (which is now s 8.15(2) of the EPA Act), her Honour's findings provide persuasive guidance on the status of the Crown exercising its right under s 64. At 91, her Honour states: "I am of the opinion that the MSB Sydney Ports Authority has made out a case for the application of s 64(1). That makes it unnecessary for me to deal with the alternative submissions which Mr Robson made as to the right of the MSB Sydney Ports Authority generally to be joined as a party to the proceedings. I do not think that the order sought by the MSB Sydney Ports Authority is appropriately framed. My conclusion that the MSB Sydney Ports Authority is the Crown and has sufficient interest entitles it to appear as of right. Nevertheless, it may be appropriate for me to formalise its appearance in order to make clear that the MSB Sydney Ports Authority exercising its right under s 64(1), becomes subject to the rules, practices and procedures of the Court and is entitled to tender evidence, examine witnesses and participate fully in all aspects of argument." 1. In the matter of Smith v Wollondilly Shire Council [2004] NSWLEC 194, McClellan CJ granted the Sydney Catchment Authority permission pursuant to s 64 of the LEC Act to intervene in those proceedings. That decision was made after s 39A (which is now s 8.15(2) of the EPA Act) was inserted into the LEC Act. 2. The Chief Judge notes in the Smith judgment that the former Chief Judge, Pearlman J, made similar orders in Vanadi. His Honour goes on to state: "the view I hold is that the right of the Crown is provided by the statute and cannot be constrained by any order of the Court. However, the Crown by seeking to be a party to proceedings in this Court, must obviously accept the obligations which follow from the Court's statute, its rules and practice directions." 1. Despite the findings set out in judgments of two former Chief Judges of this Court about the powers of the Crown to intervene in proceedings under s 64 of the LEC Act, both parties made submissions expressing their reservations about the extent and possible limitations of that power. As such, the question that remains before me now is whether to join RMS under r 6.24 of the UCPR. That rule states: 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. Counsel for the Applicant submitted that as RMS has the right to appear in the proceedings under s 64 of the LEC Act, and as such, it is not necessary for it to be joined under r 6.24 of the UCPR. Any issues RMS may wish to raise and put before the Court can be raised using that power. 2. The RMS put to the Court that it is necessary for it to be joined to the proceedings for the determination of all matters in dispute in the proceedings. RMS submitted that the Applicant's Class 1 Application seeks to have the Court exercise jurisdiction that would make the RMS concurrence to the s138 approval unnecessary. It was argued that this relief affects RMS' statutory powers and rights and, accordingly, RMS is a necessary party to the proceedings. This submission was supported by reference to the single contention raised by the Council in the proceedings which states: "Section 138 Roads Act Approval (1) The construction certificate should be refused because there is no concurrence from the RMS as required by Condition 8a of MOD0045/18 and s138(2) of the Roads Act 1993 Particulars (a) Condition 8a of MOD0045/18 is as follows: Section 138 Approval No Construction Certificate for the erection of the two electronic advertising signs shall be granted prior to the grant of consent by Council for the erection of those structures over the pacific Highway pursuant to Section 138 of the Roads Act 1993. Reasons: Statutory Requirement (b) The Pacific Highway is a classified road under the Roads Act 1993. (c) A s138 Roads Act Approval cannot be given for a classified road without the concurrence of RMS. (d) No concurrence has been given by RMS." 1. I agree with the submissions of RMS and consider it to be a necessary party to the proceedings. It follows then that RMS should be joined as the second respondent. Costs 1. RMS, having been successful in its application to be joined as a party to the proceedings, seeks an order that the Applicant pay its costs of the NOM. 2. The NOM is brought within the proceedings which is an appeal in Class 1 of the Court's jurisdiction. For proceedings of this type, the relevant rule for an award of costs is r 3.7 of the Land and Environment Court Rules 2007. That rule provides that "[t]he Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances." 3. In the circumstances of this case, I do not consider that it is fair and reasonable to make an order for costs. Although I have upheld RMS' motion, the reasons put forward by the Applicant for opposing joinder were not without merit, including the fact that the application for joinder was originally sought on two bases, one which was not available in these proceedings. 4. I do not consider that there is any conduct of the Applicant which would make it fair and reasonable that there be a cost order against it. Orders 1. Accordingly, I make the following orders: 1. Roads and Maritime Services is joined as the Second Respondent. 2. The proceedings are listed for directions at 9AM on Tuesday, 16 July 2019 before the Registrar. ……………………………… S Froh Registrar of the Court ********** 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: 15 July 2019