PEREGRINE CORPORATION v CITY OF WEST TORRENS [2011] SAERDC 29 (8 July 2011)

Last Updated: 18 July 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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In the Matter of AN APPLICATION FOR JOINDER

PEREGRINE CORPORATION v CITY OF WEST TORRENS

[2011] SAERDC 29

Judgment of Commissioner Mosel

8 July 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Applications for joinder - whether the Court is functus officio considered and decided - the merits of the applications considered - the applicants are joined in the interests of justice.

Development Act 1993; Environment, Resources & Development Court Act 1993, referred to.

Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189; O'Neill & Anor v Kimhi & Ors [2008] SASC 109; Pitt & Ors v Environment, Resources and Development Court & Ors (1995) 66 SASR 274; Onesteel Manufacturing Pty Ltd v Environment Protection Authority & Anor [2005] SASC 216; (2005) 92 SASR 67, considered.

PEREGRINE CORPORATION v CITY OF WEST TORRENS
[2011] SAERDC 29

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. Mr L Corso and Ms L Penglase of 248 Henley Beach Road, Underdale, have applied to join as a party to the appeal by Peregrine Corporation (“Peregrine”) against the decision of the City of West Torrens (“the Council”) to refuse Development Plan Consent to vary a condition of consent that applies to the existing car wash facilities on the land situated at 251-253 Henley Beach Road, Torrensville (“the subject land”).
2. At the hearing of their application, Mr Corso and Ms Penglase appeared in person. The Council’s Development Coordinator – City Development, Mr Kelly, appeared on its behalf. Mr J Botten appeared for Peregrine.

Background

3. According to the Council’s Book of Documents submitted to the Court for the purposes of the conference held pursuant to s 16 of the Environment, Resources and Development Court Act 1993 (“the Act”), the subject land is within the Commercial (Arterial Roads) Zone. For convenience, I will receive the Book of Documents as Exhibit R1. The existing Happy Wash car washing facility comprises six car washing bays. Also on the subject land are buildings occupied by Video Ezy and Kentucky Fried Chicken.
4. The condition of consent sought to be varied (by DA 211/709/2002/A) limits the operating hours of the car washing facility. Peregrine’s letter to the Council dated 19 November 2010 (Exhibit R1, p 19) details the amended hours proposed and certain modifications to be undertaken to satisfy the recommendations of its acoustic engineer.
5. The Council determined the proposal to be a Category 3 development and pursuant to s 38 of the Development Act 1993 undertook the requisite notification. The owners/occupiers of 25 properties in the near vicinity of the subject land, deemed by the Council to be affected by the proposal, received notices. Mr Corso and Ms Penglase reside in a dwelling on the northern side of Henley Beach Road virtually opposite the subject land. The relationship between the subject land and the dwelling occupied by Mr Corso and Ms Penglase is more precisely depicted on the plan handed to the Court and now marked Exhibit A1. They were among those who were notified. Both, subsequently, lodged a representation in the nature of objection (Exhibit R1, pp 42 and 43). They did not appear in person in support of their representation at the meeting of the Council’s Development Assessment Panel.
6. The appeal by Peregrine was received by the Court on 7 April 2011. Following notification by the Court to all representors, the applications by Mr Corso and Ms Penglase to join as parties to the appeal were received by the Court on 27 April 2011. Although the details in their applications are similar, Ms Penglase is content to rely on the reasons for joinder contained in Mr Corso’s application.
7. Peregrine and the Council oppose the applications. The former contends that the applications are legally incompetent because, in the circumstances outlined below, the Court is functus officio. In the alternative and in common with the Council, Peregrine contends that the applications should be rejected on their merits.

Is the Court functus officio?

8. The circumstances that give rise to Mr Botten’s contentions are as follows:
   • Shortly after the appeal was instituted the Council informed the Court of all representations. As a consequence of receiving a notice from the Court under r 5.4 of its Rules, Mr Corso and Ms Penglase forwarded their applications for joinder on the Court’s standard forms.
     
   • Of the options identified on the Court’s form, they clearly indicated that their intention was to ‘participate in the Conference’. That is to say, the conference to be convened pursuant to s 16 of the Act.
     
   • Following its normal course the Court first heard Mr Corso and Mr Penglase prior to the first conference. The hearing was on 12 May 2011. The transcript of the proceedings confirmed their stated intention. They confirmed that they did not wish to be joined as a formal party to the proceedings. Instead they preferred to participate in the conference. The application was decided on that basis alone. The Court declined their application to join but gave leave for them to participate in the conference.
     
   • Following the conference, Peregrine undertook to make certain amendments to the proposal. The amendments were spelt out in its letter to the Council dated 30 May 2011 (Exhibit A2). The Council, through Mr Kelly, forwarded the details of the amendments to Mr Corso and Ms Penglase.
     
   • The amendments were subsequently considered by the Council’s Development Assessment Panel and accepted as the basis for reaching a settlement with Peregrine.
     
   • Mr Corso and Ms Penglase made a further application to join because they remained dissatisfied with the proposal in its amended form.
     
9. In Mr Botten’s submission, by virtue of the decision of 12 May 2011, the Court had finally disposed of the applications and was functus officio. Further, he contended that to allow Mr Corso and Ms Penglase to renew their applications would amount to an abuse of process. He referred to the decision of the Full Court in the matter of Development Assessment Commission v Macag Holdings Pty Ltd[1] in support of his submissions. He argued that, were the Court to allow a hearing of the application to proceed, it would be, in effect, the re-litigation of the issue that was before the Court on 12 May 2011.
10. In my view, the Court’s decision on 12 May did no more than confirm, at that time, the stated intention of Mr Corso and Ms Penglase, to limit their participation to the conference. On one view, their response to the Court’s notice was not, in the strict sense, an application to join as a party to the proceedings. Instead, they sought access to the discussions between Peregrine and the Council relying on the latter to continue to oppose the proposed change to the operating hours. The Court’s decision of the 12 May 2011 must be viewed in that light.
11. That the Council has now resolved to reverse its decision and agree to particularised terms of settlement is the sole reason for further applications to join being made. I recognise the undesirability of repeated applications and persistent and repetitive attempts to access an instrument of justice where the circumstances have not changed. However, this is not the situation here. The circumstances in which Mr Corso and Ms Penglase first applied to be joined have changed in a most significant way.
12. For the above reason, I reject Mr Botten’s submission on the point of jurisdiction. Furthermore, to enable the consideration of the applications on their merits would not be inconsistent with the terms of s 17 of the Act nor with the circumstances before Debelle J in O’Neill & Anor v Kimhi & Ors.[2] In respect of the former, as will be seen by the provision of s 17 below, the power to join is wide and, in all of the circumstances, the applications could not be found to be frivolous or vexatious or instituted for some improper purposes and thus rejected. As to the latter, His Honour’s reasons at paras 24 and 25 support the proposition that a factor favourable to joinder would include circumstances in which a Council failed to maintain its opposition to a proposed development.

The merits of the application

13. The power of the Court to make an order for joinder is with s 17 of the Act. The relevant aspects of s 17 are as follows:

17—Parties
(1) The Court may, by order, join a person as a party to any proceedings (other than criminal proceedings).
(2) A commissioner may not make an order under subsection (1) except—
(a) on the application of, or with the consent of, the party to be joined; or
(b) with the concurrence of a Judge.
(3) An order under subsection (1) may be made on an application without notice to any person.
(4) Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings—
(a) dismiss or determine any proceedings that appear—
(i) to be frivolous or vexatious; or
(ii) to have been instituted or prosecuted for the purpose of delay or obstruction, or for some other improper purpose;
(b) after hearing the applicant in the proceedings, find in favour of the respondent without hearing the respondent;
(c) give summary judgement against a party—
(i) who obstructs or unnecessarily delays the proceedings; or
(ii) who appears to be continuing to participate in the proceedings for the purpose of delay or obstruction, or for some other improper purpose; or
(iii) who fails to attend any proceedings or fails to comply with a regulation, or a rule or order of the Court.

14. It will be noted that the grounds for an order for joinder are not prescribed. As I have said the discretion of the Court is broad and must be made in the light of all relevant circumstances.
15. In deciding whether it is appropriate for Mr Corso and Ms Penglase to join the proceedings, I have carefully weighed the circumstances and the submissions of Mr Botten in light of the leading authorities on the question of joinder (Pitt & Ors v Environment, Resources and Development Court & Ors[3], Onesteel Manufacturing Pty Ltd v Environment Protection Authority & Anor,[4] O’Neill) and s 88(c) of the Development Act 1993; which provisions are in the following terms:

88—Powers of Court in determining any matter
(2) The following provisions apply in connection with the exercise of the Court's jurisdiction in any proceedings under this Act:
...

(c) the Court may, in dealing with an application from a person to be joined as a party to the proceedings (other than the Crown, a relevant authority applying under section 37, or a person who was entitled to be given notice of a decision in respect of a Category 3 development under section 38 (if relevant)), determine not to grant the application—

• (i) on the ground that the Court is not satisfied that the person has a special interest in the subject-matter of the application; or
• (ii) on the ground that, whatever the interest of the person may be, the Court is not satisfied that the interests of justice require that the person be joined as a party; or
• (iii) on any other ground determined to be appropriate by the Court.

16. For the following reasons the case for joinder is sufficient for the applications to be allowed. First, the property occupied by Mr Corso and Ms Penglase is in sufficient proximity to the subject land and the terms of the relevant Development Plan are such that an arguable case can be made in respect of several of the matters raised in their application.
17. The second reason relates to the first. Although the proposal is not a new use on the subject land, it will involve a change of operational conditions which, arguably, has the potential to have an impact on their amenity. Of course, this should not be interpreted as saying that, in all of the circumstances, their concerns are justified in planning terms. Instead, the issue is arguable and would, in the normal course, be the subject of qualitative assessment.
18. Thirdly, Mr Corso and Ms Penglase, by exercising their right to lodge a representation and to later pursue their options to state their case once the appeal was instituted, have demonstrated a genuine interest and determination to pursue that interest.
19. Fourthly, the submissions of Mr Corso and Ms Penglase suggest to me that if the matter proceeds to hearing they will use their best endeavours to present a case for consideration. That they do not intend to call expert evidence or engage legal representation are factors that do not diminish the merits of their application.
20. Finally, since the Council’s support for their concerns has evaporated, the effect of Mr Corso and Ms Penglase’s applications to join is to provide them with the potential remedies that would have been available to them had the Council’s first decision been the grant of consent. This is by no means a decisive factor. However, it is clear that they no longer share a common interest with the Council and, in all of the circumstances, it is in the interests of justice that they be joined.
21. There will be an order to join Mr Corso and Ms Penglase in the appeal.

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[1] [2001] SASC 189

[2] [2008] SASC 109

[3] (1995) 66 SASR 274

[4] [2005] SASC 216; (2005) 92 SASR 67