Tujilo Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 1283

Land and Environment Court New South Wales

Medium Neutral Citation: Tujilo Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 1283 Hearing dates: 1 June 2018 Date of orders: 13 June 2018 Decision date: 13 June 2018 Jurisdiction: Class 1 Before: Froh R Decision: The Court orders: (1) Elizabeth Statis is joined as the second respondent to these proceedings. (2) The Second Respondent is to file and serve its Statement of Facts and Contentions by Thursday, 14 June 2018. (3) The section 34 conciliation conference on 19 June 2018 is confirmed. Catchwords: JOINDER: Application for joinder; Statutory tests. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wingecarribee Local Environmental Plan Category: Principal judgment Parties: Tujilo Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Elizabeth Statis (Applicant on the motion for joinder) Representation: Solicitors: P Donnellan, PJ Donnellan & Co (Applicant) C Shaw, Shaw Reynolds Lawyers (Respondent) N Brunton, Norton Rose Fulbright Australia (Applicant on the motion for joinder) File Number(s): 2017/356544 Publication restriction: No

Judgment 1. REGISTRAR: Elizabeth Statis, by Notice of Motion filed on 25 May 2018, seeks an order that she be joined as a respondent to these Class 1 proceedings instituted by Tujilo Pty Limited ('Tujilo') in respect of Wingecarribee Shire Council's ('Council') refusal of its modification application 16/1366 (the 'Modification Application') in respect of DA32/27/3182/84 (the 'Original Consent') 2. The Motion is opposed by Tujilo, the Applicant in the substantive proceedings, and Council neither consents nor opposes the motion.

The statutory power to order joinder 1. 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: (2) On an appeal under this Division, 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, Ms Statis submitted that she be joined on all three bases, being that she is able raise issues that would not be adequately dealt with if I do not to make an order for joinder and that it is in the interests of justice and the public interest for me to make such an order. 2. It is well established that the exercise of the power pursuant to s 8.15(2) of the EPA Act involves two steps. The first step is that the Court is satisfied that one of the three limbs within s 8.15(2) has been satisfied. The second step is whether, in all of the circumstances of the application, the Court is satisfied that it ought to exercise its discretion to order a joinder. 3. Ms Statis' application for joinder was supported by the affidavit of Mr Kwok which was read without objection. In his affidavit Mr Kwok deposed that the Council's Statement of Facts and Contentions does not raise any contention on the following: 1. the impact of the Modification Application on Ms Statis' easement for recreational purposes ('Easement Issue'); 2. the prohibition in the Wingecarribee Local Environmental Plan to 'Tourist and visitor accommodation' or 'hotel or motel accommodation' in Zone E3 of the WLEP ('Prohibition Issue'); and 3. the impact of the Modification Application on the heritage values of the local area ('Heritage Issue'). 1. Mr Kwok deposes that these issues are not likely to be addressed if Ms Statis is not joined as a party to the substantive proceedings and that the listing of the s34 conciliation conference on 19 June 2018 can be maintained. 2. Turning now to the Council's Statement of Facts and Contentions, the Council states at Part A clause 4.4 of its Statement of Facts and Contentions: "The site is zoned E3 Environmental Management and the proposed development is prohibited in the zone, however, the consent was physically commenced in 1985 and remains valid" 1. The Council has also raised a Public Interest contention, being that the Modification Application should be refused on the basis of the submissions that have been received by Council. These submissions included objections relating to the non-compliance with the Wingecarribee Local Environmental Plan and that the additional villas cannot be used for tourist accommodation. 2. As such, I consider the Prohibition Issue to have been raised by Council and currently before the Court for consideration in these proceedings. 3. Part B clause 2 of the Council's Statement of Facts and Contentions states that, "[t]he proposed modification would be contrary to the objective of the E3 Environmental Management zone". It particularises this contention and states that the "modification is contrary to the objectives of the E3 zone…[t]o encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns." 4. It is also important to note that the Modification Application was referred to the Council's Heritage Committee and no comments were received. 5. As such, the Heritage Issue is before the Court in these proceedings. 6. With respect to the Easement Issue, the impact of the Modification Application on those who enjoy the benefit of this easement is not currently before the Court, except to note at clause 3.18 of the Council's Statement of Facts and Contentions that a submission objecting to the development on this ground was received by Council. 7. As such I consider this first limb satisfied. 8. Having already found that one limb under the three part test set out in s 8.15(2) is satisfied, I do not need to consider whether joinder is necessary on public interest grounds or in the interests of justice, and will instead turn to whether the exercise the discretion under s 8.15(2) to allow joinder 9. It important at this point to note that the fact that a right may be interfered with by the Modification Application is not a grounds for joinder in and of itself, rather it is the fact that this issue is not raised in the proceedings and as such not before the Court for its consideration. 10. No evidence has been put before the Court about the Easement Issue and I consider it relevant matter that should be before the Court for its consideration. 11. As such I am satisfied that it is appropriate for me to exercise my discretion to join Ms Statis as the second respondent to the proceedings.

Orders 1. The orders of the Court are: 1. Elizabeth Statis is joined as the second respondent to these proceedings. 2. The Second Respondent is to file and serve its Statement of Facts and Contentions by Thursday, 14 June 2018. 3. The section 34 conciliation conference on 19 June 2018 is confirmed. ______________________ Sarah Froh Registrar of the Land & Environment 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: 14 June 2018