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." Joinder test 1. The first matter I must consider is whether the Applicant for Joinder is able to raise an issue that should be considered in relation to the appeal but would not be sufficiently addressed if that person were not joined as a party. 2. In the affidavit of Mr Bolton affirmed on 29 May 2020, he attests that the shadow study is erroneous by its reference to the magnolia planter box and its impacts on the overshadowing of the private open space of Mr Cummins property. 3. These issues are directly raised in Council's contentions. As such, the first test for joinder has not been satisfied. 4. With regards to the interests of justice and the public interest, these were not directly raised with me by the Applicant for Joinder but were by the Applicant in the substantive proceedings so I will address them now. 5. Mr Cummins made a submission to the Council by email on 21 December 2019. A copy of that email is attached to the written submissions of the Applicant. A further submission was made by Mr Bolton on behalf of Mr Cummins to Council on 28 May 2020. Mr Bolton made additional oral representations to the Court on behalf of Mr Cummins at the commencement of a s34AA conciliation conference on 29 May 2020. 6. In Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802, Preston CJ held at [54]: "Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings." 1. My view is that there has been adequate opportunity for Mr Cummins to put forward the issues that concern him and those issues can be addressed by the Court. Accordingly, it is not in the interests of justice or the public interest to join Mr Cummins as a party to the proceedings. Costs 1. An application for costs under r 3.7 of the Land and Environment Court Rules 2007 has been made by the Applicant. 2. The motion bought by Mr Cummins and the basis on which joinder was sought did not have reasonable prospects of success when considering the tests in s 8.15(2) of the EP&A Act and I am awarding the Applicant its costs of today's appearance. Orders 1. The orders of the Court are as follows: 1. The motion is dismissed. 2. The Applicant for Joinder is to pay the Applicant's costs of today's appearance. ………………………………….. S Froh Registrar of the Court ********** Amendments 24 June 2020 - Typographical error corrected on Coversheet. 26 June 2020 - Administrative error corrected. Hearing Date, Date of Orders and Date of Decision on the Coversheet amended from "02 June 2020" to "09 June 2020". 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: 26 June 2020