Clarke v Inner West Council [2020] NSWLEC 1269

Land and Environment Court New South Wales

Medium Neutral Citation: Clarke v Inner West Council [2020] NSWLEC 1269 Hearing dates: 09 June 2020 Date of orders: 09 June 2020 Decision date: 09 June 2020 Jurisdiction: Class 1 Before: Froh R Decision: The Court orders that: (1) The motion is dismissed. (2) The Applicant for Joinder is to pay the Applicant's costs of today's appearance. Catchwords: JOINDER – application for joinder – statutory tests Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Cases Cited: Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 Category: Procedural and other rulings Parties: Michael Clarke (Applicant) Inner West Council (Respondent) Bryan Cummins (Applicant for Joinder) Representation: Counsel: K Huxley (Solicitor) (Applicant) M Jenkins (Solicitor) (Respondent) J Bolton (Solicitor) (Applicant for Joinder)

Solicitors: McCabe Curwood Pty Ltd (Applicant) Inner West Council (Respondent) JBL Solicitors (Applicant for Joinder) File Number(s): 2020/70575 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. On 1 June 2020, Bryan Cummins filed a Notice of Motion seeking joinder in proceedings between Michael Clarke (the Applicant) and Inner West Council (the Council) under s 8.15 of the Environmental Planning and Assessment Act 1979 (EP&A Act). 2. The Council adopts a neutral position and the Applicant opposes the joinder. 3. The appeal bought by Mr Clarke concerns alterations and a new pergola to the existing terrace at the rear of the site at 83 Nelson St, Annandale. 4. The substantive proceedings were listed for a conciliation and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 29 May 2020 before Senior Commissioner Dixon. The Court terminated the conciliation conference and listed the matter for hearing under s 34C of the LEC Act. As of the date of hearing this motion, the proceedings were yet to be allocated a hearing date. 5. I am required to consider the application for joinder under s 8.15(2) of the EP&A Act. That section states: 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. In considering an application for joinder it is appropriate for me to consider the contentions raised by Council in its Statement of Facts and Contentions, which are as follows: "1.Solar access to Private Open Space and Amenity: The proposed development fails to demonstrate compliance with the requirements for solar access to neighbouring private open space. Particulars a. The Proposal fails to demonstrate compliance with Part C3.9 objectives O1(d) and O1(f) and controls C1, C18 and C19 of the LDCP 2013. 2. Inadequate information: The following information has not been provided/is inaccurate and is required to allow assessment of the development proposal: Particulars a. The provided shadow diagrams are inaccurate and do not provide as sufficient detail to allow the assessment of the application. They do not provide the area of the entirety of the adjoining private open space of the dwelling to the south. The shadow diagrams contain obvious errors. Given the issues with plan quality of the shadow diagrams certified shadow diagrams should be provided to assist the court. b. The 4.6 variations for landscaped area include inaccurate calculation of landscaped areas as it includes the astroturf area as landscaped area. The 4.6 variation needs to be amended to provide accurate calculations."