Winten (No 21) Pty Ltd v Lake Macquarie City Council [2019] NSWLEC 1426

Land and Environment Court New South Wales

Medium Neutral Citation: Winten (No 21) Pty Ltd v Lake Macquarie City Council [2019] NSWLEC 1426 Hearing dates: 15 August 2019; 22 August 2019 Date of orders: 09 September 2019 Decision date: 09 September 2019 Jurisdiction: Class 1 Before: Froh R Decision: The orders of the Court are: (1) Newcastle City Council is joined as the Fifth Respondent to these proceedings. (2) Leave is granted for the Fifth Respondent to rely on the Statement of Facts of Contentions filed and served by the Fifth Respondent on 1 August 2019. (3) The Applicant is to file and serve its Statement of Facts and Contentions in Reply by 24 September 2019. (4) The orders made on 6 September 2019 in these proceedings are confirmed. (5) The section 34 conciliation conference listed on 30 September, 1 October and 2 October 2019 is confirmed. Catchwords: JOINDER – application for joinder – statutory tests Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Winten (No 21) Pty Ltd (Applicant) Lake Macquarie City Council (First Respondent) Roads and Maritime Services (Second Respondent) Crown in the Right of New South Wales (National Parks and Wildlife Service) (Third Respondent) Secretary of the Department of Planning, Industry and Environment (Fourth Respondent) Newcastle City Council (Applicant on the Motion for joinder) Representation: Counsel: G Farland (Applicant) N Lambrinos (Solicitor) (First Respondent) Dr J Smith (Applicant for joinder) F Berglund (Second Respondent)

Solicitors: Dentons Australia Pty Ltd (Applicant) Maddocks Lawyers (First Respondent) Newcastle City Council (Applicant for joinder) Hunt and Hunt Lawyers (Second Respondent) File Number(s): 2019/19121 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and editor prior to publication. 1. REGISTRAR: Newcastle City Council (Newcastle Council) by Notice of Motion filed on 1 August 2019 (Motion), seeks an order that it be joined as a respondent to these Class 1 proceedings instituted by Winten (No 21) Pty Limited (Winten) in respect of Lake Macquarie Council's deemed refusal of development application DA/2087/2018 lodged with Lake Macquarie Council on 22 November 2018 for 1063 lot residential subdivision, including construction of roads, utilities, stormwater infrastructure and landscaping, and associated clearing and bulk earthworks. 2. The Motion is opposed by Winten.

The statutory power to order joinder 1. Newcastle Council seeks joinder under the Court's power pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) and r 6.24 of the Uniform Civil Procedure Rules 2005. In the alternative, Newcastle Council seeks a Double Bay Marina Order pursuant to s 38(2) of the Land and Environment Court Act 1979. 2. I will firstly consider the joinder under s 8.15(2) of the EPA Act. 3. 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 the Motion, Newcastle Council submitted that it satisfied all three limbs, meaning that it is able to raise issues that would not be sufficiently addressed if I do not 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. Newcastle Council has helpfully provided the Court and the parties to the proceedings with its proposed Statement of Facts and Contentions which it proposes to rely on if joined to the proceedings. 3. In summary, Newcastle Council's Statement of Facts and Contentions proposes to raise the following issues: 1. Failure to satisfy the mandatory precondition to the grant of consent required by cl 3B(2)(d), Schedule 2 of the Environmental Planning and Assessment (Savings, Transition and Other Provisions) Regulation 2017; 2. Impacts of the proposed subdivision on the current and future operation of the Summerhill Waste Management Facility (SWMC); 3. Implications and adequacy of traffic routes utilised or the waste vehicles associated with the SWMC, including B-double and semi-trailers transporting "Special Waste" in accordance with the SWMC's environment protection licence; and 4. Adverse amenity issues for future residents of the proposed subdivision and the operational functions of the SWMC. 1. These contentions are further particularised in the proposed Statement of Facts and Contentions and Counsel for Newcastle Council submitted that these issues are not likely to be addressed or sufficiently addressed if it is not joined. 2. Turning now to Lake Macquarie Council's Amended Statement of Facts and Contentions, Lake Macquarie Council contends that: 1. The Application cannot be determined by the Respondent as matters within the Concept Approval have not been addressed; and 2. The Application cannot be determined by the Respondent as there are inconsistent descriptions of the proposed development in the information submitted by, or discussed with, the Applicant. 1. Lengthy submissions were put to me by counsel for the Applicant about Newcastle Council's proposed contentions and whether these proceedings are the appropriate vehicle for those issues to be ventilated. 2. It is plain to me though that the issues proposed to be raised by Newcastle Council in its Statement of Facts and Contentions are not before the Court and are not capable of being addressed without an order for joinder being made. 3. As such, I consider the first limb of the test satisfied. 4. 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 to exercise the discretion under s 8.15(2) to allow joinder. 5. Counsel for the Applicant argues that I should not exercise my discretion to join Newcastle Council. The Applicant is of the view that Newcastle Council's proposed contentions have been addressed and satisfied by it already and that issues in relation to the SWMC should not be the subject of these proceedings. 6. However, the fact remains that there is no contention or evidence before the Court in these proceedings about the issues which Newcastle Council wishes to raise and I consider these to be relevant matters that should be before the Court for its consideration on this appeal. 7. As such, I am satisfied that it is appropriate for me to exercise my discretion to join Newcastle Council as the Fifth Respondent to the proceedings.

Orders 1. The orders of the Court are: 1. Newcastle City Council is joined as the Fifth Respondent to these proceedings. 2. Leave is granted for the Fifth Respondent to rely on the Statement of Facts of Contentions filed and served by the Fifth Respondent on 1 August 2019. 3. The Applicant is to file and serve its Statement of Facts and Contentions in Reply by 24 September 2019. 4. The orders made on 6 September 2019 in these proceedings are confirmed. 5. The section 34 conciliation conference listed on 30 September, 1 October and 2 October 2019 is confirmed.

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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: 09 September 2019