Reported Decision : 169 LGERA 29 Land and Environment Court of New South Wales CITATION : Michael Suttor Pty Limited trading as Michael Suttor Architects v Woollahra Municipal Council [2009] NSWLEC 148 APPLICANT Michael Suttor Pty Limited (ACN 002 460 853) t/as Michael Suttor Architects PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10290 of 2009 CORAM: Preston CJ KEY ISSUES: PRACTICE AND PROCEDURE :- joinder of party - neighbour seeking to be joined to development appeal - developer and council reached agreement as to terms of decision - consent orders hearing proposed - directions made to ensure neighbour objections heard at hearing - no joinder LEGISLATION CITED: Land and Environment Court Act 1979 s 39A CASES CITED: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Tomko v Palasty (No.2) [2007] NSWCA 369; (2007) 71 NSWLR 61 DATES OF HEARING: 10 August 2009 EX TEMPORE JUDGMENT DATE : 10 August 2009 APPLICANT ON NOTICE OF MOTION (INTERVENER) Mr I Hemmings (barrister) SOLICITORS Morgan Lewis Attorneys APPLICANT LEGAL REPRESENTATIVES: Ms H Irish (barrister) SOLCITORS McLachlan Thorpe Partners RESPONDENT Ms K Thomas (solicitor) SOLICITORS Wilshire Webb Staunton Beattie JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 10 AUGUST 2009 10290 OF 2009 MICHAEL SUTTOR PTY LIMITED T/AS MICHAEL SUTTOR ARCHITECTS v WOOLLAHRA MUNICIPAL COUNCIL JUDGMENT 1 HIS HONOUR: Chanan and Shelly Mowszowski have applied to the Court to review the decision of Acting Registrar Gray on 28 July 2009 in respect of their notice of motion dated 16 July 2009 for joinder to these proceedings. Acting Registrar Gray ordered that the letter of Mr and Mrs Mowszowski's consultant town planner, Mr Moody, dated 16 July 2009 be included in the bundle of documents to be filed by Woollahra Municipal Council ("the Council") in the proceedings (and which would be tendered at the hearing and considered by the Court before making its determination of proceedings) but otherwise dismissed the notice of motion. Acting Registrar Gray gave detailed reasons in a reserved written judgment delivered on 28 July 2009. 2 The power of the Court to review a registrar's decision is under Part 49 Rule 49.19 of the Uniform Civil Procedure Rules 2005 which apply to this Court. The power of review is different from an appeal and is not subject to the restrictions that apply to an appeal: see Tomko v Palasty (No.2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [6], [10], [17], [46], [50], [52]. 3 An applicant for review is not required to demonstrate an error in the registrar's orders under review: Tomko at [46]. Nevertheless, the review power confers a broad discretion on the Court. This discretion extends to a discretion as to whether, and if so how, to intervene. There is an onus on a person seeking to have the Court set aside or vary a registrar's decision to make out a case that the Court, in the interests of justice, should exercise its discretion to do so: Tomko at [7], [17]. However, the willingness of the Court to intervene will be influenced by whether the nature of the decision relates to matters of practice and procedure or is determinative of legal rights. In the case of the latter, the Court may be more willing to intervene: Tomko at [8], [9], and [48]. 4 In this case, the joinder of Mr and Mrs Mowszowski as a party to the proceedings, or alternatively leave being granted to Mr and Mrs Mowszowski to participate in the proceedings as if a party, is a matter of practice and procedure. 5 The essential basis put by Mr and Mrs Mowszowski to either be joined as a party or be heard as if a party is that the Council and the applicant in the proceedings have reached a consensus as to how the Court ought to determine the proceedings, namely by the grant of consent on conditions, and that there are no contentions or issues that will need to be addressed. The statement of facts and contentions that has been filed by the Council in this case raises no contentions. To the contrary, it records that the Council has resolved that it will grant consent and that it will be asking for the Court to grant consent subject to conditions recommended by council staff. The matter has been set for a hearing, by way of what is referred to as a consent orders hearing, on 24 August 2009. The concern raised by Mr and Mrs Mowszowski is that there now being no issues between the parties there will be no contest between the parties as to any contention or issue. 6 Mr and Mrs Mowszowski's central concern is the impact the proposed development would have on the views they enjoy from their apartment, unit 2, in the residential flat building at 23 Wentworth Street, Point Piper. Mr and Mrs Mowszowski have also raised concerns at the request of another unit holder, unit 7, in the same apartment block. Mr and Mrs Mowszowski have also expressed concern about the impacts on a neighbouring dwelling house at 25 Wentworth Street, but there has been no objection by the owner of 25 Wentworth Street because, as I understand, that property has been purchased by the applicant for development consent who naturally enough does not raise any objection. 7 In terms of s 39A of the Land and Environment Court Act 1979, Mr and Mrs Mowszowski's central concern is that the issue of view loss caused by the proposed development is an issue that should be considered in relation to the appeal, but by reason of the fact that no contentions have been raised by the Council and there now being no contest between the Council and the applicant for development consent, this issue would not be likely to be sufficiently addressed if Mr and Mrs Mowszowski were not joined as a party to the proceedings. 8 The applicant for development consent contests the joinder of Mr and Mrs Mowszowski to the proceedings or having them heard as if a party under what is referred to as a Double Bay Marina order (after the case in which such an order was first made, Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313). The applicant for development consent accepts that at a consent orders hearing the Court needs to be persuaded that issues raised by objectors can be adequately addressed. One of these issues raised by the objectors is the alleged unacceptable view loss caused by the proposed development. Hence, the applicant for development consent says this issue will be addressed. The applicant for development consent says that it would call its consultant town planner, Mr Goldsmith, to give evidence at the hearing to address the issue. It would also ensure that all of the objections that have hitherto been made by objectors, including those by Mr and Mrs Mowszowski and Mr Moody on their behalf, will be included in the bundle of documents to be tendered at the hearing. 9 The Council affirms that the objections of the objectors, including Mr and Mrs Mowszowski and Mr Moody on their behalf, will be included in the tender bundle, but it also advises that it has notified the objectors and asked whether any of them would wish to be heard. If they do indicate a willingness to be heard at the hearing, the Council has indicated that it will call those persons, including Mr and Mrs Mowszowski or their representative. The Council confirms that the Court would be given an opportunity to visit the premises of the objectors so as to be able to assess the objectors' evidence in relation to the alleged view loss and its impact. This would include any residential premises in the apartment block at 23 Wentworth Street. After further discussion this was extended to the dwelling house at 25 Wentworth Street. 10 This case is unusual in that there have not been any statements of contentions and, hence, any issues joined between the parties. There are, of course, issues raised by the objectors but in order for the Court to be able to address these issues there would need to be some articulation of the issues based upon the objections. Nevertheless there is no doubt that a central issue raised by the objectors is the allegation of an unacceptable adverse impact on views caused by the proposed development. Of course, whether the adverse impact on views is unacceptable is a matter for the Court to determine having regard to all of the evidence and the relevant instruments and controls. 11 The case is also unusual in that the sequence of events in the preparation of the appeal has meant that the objectors have not had an opportunity to comment on expert information that was considered by the Council and that caused the Council to reverse its position from opposition to consent to the proposed development. This sequence of events is set out in the statement of facts and conditions. The Council had previously refused consent to the development application of 30 March 2009. A Class 1 appeal was lodged with the Court on 8 May 2009. Subsequently, the Council retained an independent town planning consultant, Mr Kennan, to review the development application. On 22 June 2009, after reviewing the town planning consultant's advice, the Development Control Committee of the Council resolved that the application should be referred to a full council meeting. On 29 June 2009, the Council resolved that it would consent to orders for the granting of development consent subject to conditions recommended by council staff. 12 The objectors, including Mr and Mrs Mowszowski, did not have an opportunity to consider or make submissions on the town planning consultant's advice which was instrumental in the Council resolving to agree to consent orders rather than to oppose the development. If the objectors are not now given an opportunity to consider that advice, then their submissions objecting to the development run the risk of being considered by the Court as being incomplete. The Council's town planning consultant has considered their earlier submissions and responded as to why, in his opinion, their concerns are not such as to warrant refusal of the development application. The Council, by resolving to adopt the recommendation of the town planning consultant, also formed that view. Unless the objectors are given an opportunity now to make a further submission, then the Court may lack the full picture. 13 If the Council calls the objectors to give evidence at the hearing, then the objectors would have this opportunity to provide a full picture and respond to the Council's town planning consultant's report at the hearing. However, this is an unsatisfactory result because then the applicant for development consent would have an inadequate opportunity to consider the further submissions of the objectors. 14 A more orderly and efficient process would be to set a timetable whereby the objectors are given a further opportunity to put anything they wish to say by way of objection before the hearing and give the applicant for development consent an opportunity to consider that. Furthermore, there ought to be an articulation of the issues that need to be addressed by the Court at the hearing rather than leaving them to be gleaned from a consideration of the bundle of documents containing the objectors' evidence. 15 I indicated to the parties for their consideration a preliminary view that a way of overcoming the problems in the process to date, allowing better articulation of the issues that will need to be addressed on the hearing and ensuring that the issues are sufficiently addressed, would be to set a timetable where there is: first, an articulation of the issues; secondly, a confirmation of a previous direction that the applicant for the development consent's consultant town planner, Mr Goldsmith, respond to a prior letter of Mr and Mrs Mowszowski's consultant town planner, Mr Moody; thirdly, an opportunity for a further submission by Mr and Mrs Mowszowski addressing the report of the Council's town planning consultant which was adopted by the Council in making its resolution to change its position from opposing to granting consent, as well as Mr Goldsmith's report, and articulating anything further they wish to say by way of objection in relation to the view loss issue; and, fourthly, a final opportunity for the applicant for development consent to file any further evidence in response to these further submissions. Then there would be an opportunity at the hearing for the objectors, including Mr and Mrs Mowszowski or their representative, to speak to all of their submissions or objections, including the latest ones, and for there to be access provided to the Court to view the objectors' premises as well as the premises at 25 Wentworth Street to better understand the evidence and to come to a conclusion as to the issues. 16 If such a proposed course of action were to be taken, then the central concern of the applicants for joinder, Mr and Mrs Mowszowski, would be largely met. The issues that should be considered in relation to the appeal would be raised expressly and, through compliance with the directions for further submissions and evidence, the issues would be sufficiently addressed. 17 From the point of view of the applicants for joinder, the proposed course went a large way towards meeting their concerns. It fell short in that they would not be given the same rights as a party and furthermore they would not have the opportunity to make submissions through any legal representative at the hearing which could be responsive to the way the evidence unfolded. 18 From the applicant for development consent's position, the principal submissions were that the objectors had had ample opportunity to date and should not be given any further opportunity to put further submissions, that a line had to be drawn, and that there had been adequate articulation of the issues and the Court would be able to determine them without any further steps being taken. 19 In my opinion, there is a need for further and better articulation of the issues and for the objectors to be given an opportunity to make further submissions. I therefore reject the applicant for development consent's contention that the state of affairs that we find ourselves in now, and that would continue to the hearing if no further directions were made, would be sufficient to either articulate the issues or allow the issues to be sufficiently addressed. However, I consider that if the proposed further steps were taken, then that would be sufficient and it would not be necessary to go further than this and join Mr and Mrs Mowszowski as parties to the proceedings or make a direction by way of a Double Bay Marina order. 20 I consider that by undertaking the proposed steps there would be, in the terms of para (a) of s 39A of the Land and Environment Court Act 1979, an ability of the objectors to raise the issues that should be considered in relation to the appeal and also an opportunity for those issues to be sufficiently addressed without the need to have them joined as parties. Furthermore, in terms of para (b) of s 39A I do not consider that it would be necessary in the interests of justice or in the public interest to take the further step of joining Mr and Mrs Mowszowski as parties. 21 Now returning to the question of the review of the Acting Registrar's decision, although the reasons that I have given are different to those that the Acting Registrar has set out, this is a product of the way in which further material evidence was put before the Court and submissions were made. The indication by the applicant for development consent and the Council as to the manner in which the evidence at the consent orders hearing would proceed seems to me to be slightly different to that which might have been put before the Acting Registrar. The additional matters and the chronology given by the applicant for joinder also seem to me to put a different factual complexion on the questions to that which was put before the registrar. 22 In these circumstances, it is not necessary that I vary or set aside the Acting Registrar's decisions. It is enough that I record that, by reason of the evidence and submissions made before me as the reviewing court, I consider that the appropriate course of action is that directions be made in the way that I have foreshadowed, and that, on the basis that I will make those directions, I would independently come to the view that a joinder should not be ordered under s 39A or that a Double Bay Marina order should not be made allowing the applicants for joinder to be heard as if they were a party. 23 For these reasons, I would not set aside or vary the Acting Registrar's decision and the notice of motion seeking that the Acting Registrar's decision be reviewed or set aside should be dismissed. However, it is necessary that I also make some further directions to reflect the matters that I have stated above. Accordingly I make the following directions: 1. I note that the issues for determination at the hearing of these proceedings shall include the following: (a) Whether the proposed development fails to provide equitable view sharing for units 2 and 7 of No. 23 and for No. 25 Wentworth Street, Point Piper. (b) Whether the proposed development would have an unacceptable adverse impact on views from units 2 and 7 of No. 23 and from No. 25 Wentworth Street, Point Piper. (c) Whether the other objections raised by objectors (and included in the bundle of documents) have been adequately addressed by the proposed development. 2. I confirm the previous direction that Mr Goldsmith's report responding to Mr Moody's letter of 16 July 2009 be filed and served by 14 August 2009 and a copy served on Mr and Mrs Mowszowski by 14 August 2009. 3. I direct that any further submission by Mr and Mrs Mowszowski, including as an attachment any further report by Mr Moody, is to be served on the applicant and the Council in these proceedings by 19 August 2009 and, a copy of any such further submission is to be included by the Council in the bundle of documents. 4. The applicant in the proceedings is to file and serve any further evidence responding to the further submissions of Mr and Mrs Mowszowski by 21 August 2009 and a copy of any such further evidence is to be served on Mr and Mrs Mowszowski by 21 August 2009. 5. I confirm that the hearing is to be held on 24 August 2009. 6. I grant leave to Mr and Mrs Mowszowski for Mr Moody to give evidence on their behalf at the hearing due to their being overseas on the date of the hearing, such evidence to be within the scope of and illustrative of the submissions made by or on behalf of Mr and Mrs Mowszowski and not address new topics or matters. 7. I direct the applicant in the proceedings to provide access to No. 25 Wentworth Street on the day of the hearing for the Court and such persons as the Court considers appropriate, to undertake a view. 8. Grant liberty to the applicant and Council in these proceedings, and Mr and Mrs Mowszowski, to restore the matter before the Court on 48 hours' notice. 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.