Land and Environment Court New South Wales Medium Neutral Citation: JCP Constructions & Development Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1204 Hearing dates: 1 April 2022 Date of orders: 1 April 2022 Decision date: 01 April 2022 Jurisdiction: Class 1 Before: Froh R Decision: 1. The Notice of Motion for joinder filed 28 March 2022 is dismissed. 2. No order for costs 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 Uniform Civil Procedure Rules 2005 Woollahra Local Environmental Plan 2014 Category: Procedural rulings Parties: JCP Constructions & Development Pty (Applicant) Woollahra Municipal Council (Respondent) Woollahra R2 Residents Association (Applicant for joinder) Representation: Counsel: P McEwen (Applicant) A Kleiss (Solicitor) (Respondent) C Ireland (Applicant for joinder) Solicitors: Shaw Reynolds Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) Dentons (Applicant for joinder) File Number(s): 2021/340406 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication. 1. This matter is an amended notice of motion (motion) for joinder whereby Woollahra R2 Residents Association (Residents Association) seeks to be joined as the second respondent to the proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The amended notice of motion has some proposed Short Minutes of Order annexed at Annexure A. 3. The Council neither consents nor opposes the motion and the Applicant opposes the motion. Background 1. The substantive proceedings relate to a Class 1 appeal brought by JCP Constructions and Development Pty Ltd in relation to Council's refusal to grant consent to change the use of 37 Ocean Street, Woollahra from an art gallery to a funeral home. 2. The Council filed its Statement of Facts and Contentions (SOFC) on 17 February 2022, which state that the development application should be refused for the following reasons: 1. The Court, acting as consent authority, could not be satisfied that the proposal has met the requirements of cl 6.6(3)(c)(i) of the Woollahra Local Environmental Plan 2014 (WLEP). 2. The Plan of Management is inadequate to ensure that the proposal will not result in negative environmental impacts on the surrounding area. 3. The Acoustic Report is inadequate. 4. There is insufficient screening of the parking structure to the rear of the property and along the Ocean Street frontage. The Legal Status of the Applicant for joinder 1. The Applicant in the proceedings raised the legal status of the Applicant for joinder. It is attested in numerous affidavits read into evidence that the Residents Association is an unincorporated association. I have accepted this position and, accordingly, have considered the application before me on its merits. The Statutory Framework 1. The application for joinder is made under s 8.15(2) of the EPA Act. That section states: (2) On an appeal under this Division, the Court may, at any time on the application of a person or 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 interest of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal. 1. According to this section, the first matter I must consider is whether the Residents Association 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 Ms Vatala's affidavit sworn in support of her client's motion on 28 March 2022 she states that her client seeks to be joined to these proceedings on the following basis: "a. First, the Council's Contentions do not state how the development application, as amended, addresses the objectives of the R2 Low Density Residential Zone of the Woollahra Local Environmental Plan 2014 (WLEP). There is therefore no information presently before the Court which would enable the Court to have regard to the objectives of the zone as required by the clause 2.3(2) of the WLEP; and b. Second, having regard to clause 6.6 of the WLEP which enable buildings and land in a residential zone to be developed for non-residential purposes only in certain circumstances, the Council's Contentions do not address how the Court can be satisfied on the information presently before it that the development "will not adversely affect the enjoyment by an occupier of land adjourning or in the neighbourhood of the land on which the development is situated" (as required by clause 6.6(3)(c)(i) of the WLEP)" 1. I will address each of these grounds in turn, but will first address the submission put to me that because the parties in the substantive proceeding have agreed on consent orders that there will not be a sufficient contradictor unless joinder is ordered. 2. My view is that this misunderstands the role of the Court at hearing when parties seek orders by consent. 3. Regardless of whether the parties have reached a consent position, a hearing on the merits is still conducted before the Court and the presiding judge or commissioner must be satisfied on all merit and jurisdictional issues before an order is made to grant consent. 4. Returning now to the test for joinder. The first proposed ground for joinder is a jurisdictional point concerning the zone objectives of the WLEP. I make these observations. Any orders for the grant of consent can only be made if the presiding officer has been satisfied of the proposal on its merits and all jurisdictional preconditions are satisfied. 5. This has always been the case. 6. It also means that when a presiding officer is presented with consent orders for a proposal that she does not consider to accord with the law and/or capable of consent on its merits, then she will refuse to make the orders. 7. So although this jurisdictional issue is not raised in the SOFC, it is important to note that it is an express obligation of the presiding officer to consider and give reasons about this jurisdictional issue. 8. I also note that the expert report jointly prepared by the Applicant and Respondent's town planning experts explicitly canvasses the objects of the R2 zone. 9. Those experts are bound by the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedure Rules 2005. Those experts are not acting as advocates. Their paramount duty is to the Court and to impartially assist the Court in the exercise of its function on matters relevant to the expert's area of expertise. 10. As such, I am satisfied that the zone objective of the WLEP will be considered by the presiding officer and that this issue is sufficiently before the Court and will be addressed. 11. Turning now to the second ground for joinder being cl 6.6 of the WLEP. 12. This clause is specifically raised by the Council in its SOFC and addressed in detail by the town planners in the joint report. 13. In addition to this, the Council has filed the submissions concerning the proposed development in a separate bundle and will seek to tender that at the hearing. The Applicant has agreed during the course of this afternoon's notice of motion hearing that the affidavits prepared for Residents Association will also be tendered at the hearing. 14. As such, I believe that this is an issue squarely raised and before the Court and by which the Commissioner will be assisted in her determination by both lay and expert evidence. 15. As such, I see no need to order joinder in order for these issues to be considered by the Court. 16. It is also put to me that without joinder the Residents Association would not have a right of appeal from the Commissioner's decision and as such it is in the interests of justice that it be joined. 17. This is not a basis for joinder. 18. An appeal from a commissioner's decision can only be made on an error of law under section 56A of the Land and Environment Court Act 1979. It is not in the interests of justice that I pre-suppose that an error of law may be made by the presiding officer and as such use that as a basis to order joinder. 19. I am satisfied that the matters proposed to be raised by the Residents Association are squarely before the Court and as such the test for joinder fails. Costs 1. An application for costs was made by the Applicant under r 3.7 of the Land and Environment Court Rules 2007. Despite the joinder not being successful I do not consider it fair and reasonable to order costs. Orders 1. The Court orders that: 1. The Notice of Motion for joinder filed 28 March 2022 is dismissed. 2. No order for costs ………………… 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: 12 April 2022