Humphrey & Edwards Architects Pty Limited v Council of the City of Sydney [2008] NSWLEC 329

Land and Environment Court of New South Wales

CITATION : Humphrey & Edwards Architects Pty Limited v Council of the City of Sydney [2008] NSWLEC 329

APPLICANT: Humphrey & Edwards Architects Pty Limited

PARTIES : RESPONDENT: Council of the City of Sydney

INTERVENOR: Landcom

FILE NUMBER(S) : 11081 of 2008

CORAM: Lloyd J

KEY ISSUES: Practice and Procedure :- application for joinder - expert evidence

Environmental Planning and Assessment Act 1979 s 79C LEGISLATION CITED: Land and Environment Court Act 1979 s 39A Uniform Civil Procedure Rules 2005 r 31.20(2)(e)

CASES CITED: Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361

DATES OF HEARING: 04/12/2008

EX TEMPORE JUDGMENT DATE : 4 December 2008

APPLICANT: M. Craig QC and S. Duggan SOLICITORS: Mallesons Stephen Jaques

LEGAL REPRESENTATIVES: RESPONDENT: S. Kondilios (solicitor) SOLICITORS: Maddocks

INTERVENOR: P. Rigg (solicitor) SOLICITORS: Deacons

JUDGMENT: - 1 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Lloyd J

Thursday, 4 December 2008

LEC No. 11081 of 2008

HUMPHREY & EDWARDS ARCHITECTS PTY LIMITED v COUNCIL OF THE CITY OF SYDNEY [2008] NSWLEC 329

EX TEMPORE JUDGMENT

1 HIS HONOUR: On 2 July 2008, the applicant, Humphrey & Edwards Architects Pty Limited, lodged an application with Sydney City Council for particular uses within an approved retail and commercial building at 296-298 Botany Road and 284-300 Wyndham Street, Alexandria. The proposed uses involve an increase in additional retail floor space and an additional basement car-parking level. The applicant has appealed against the deemed refusal of the application. The appeal has been listed for hearing on 2-4 February 2009. 2 There is now before me two notices of motion. The first is a motion by the Council seeking to limit the expert evidence to be adduced by the applicant to a strategic planner and a retail expert. The second is a motion by Landcom seeking an order that it be joined as a party, together with consequential orders. 3 Under r 31.20(2)(e) of the Uniform Civil Procedure Rules 2005, the court may make a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue. As to the Council's notice of motion, the nature of any expert evidence that may be called is thus related to the issues raised by the parties. The Council contends that the issues are limited to those of strategic planning and retail. 4 The applicant proposes to call the following expert witnesses: (a) Gabriel Morrish on urban design. (b) Gary Batley on strategic planning. (c) Harvey Sanders on statutory planning. (d) Peter Leyshon on retail. (e) Brian Aratsis on economics. (f) Andy Yeung and Dan Bright on traffic. 5 It can be fairly said, I think, that questions of strategic planning and statutory planning overlap. Similarly, questions of retail and economics overlap, so that there can be no objection to the applicant calling two witnesses addressing each of those issues. 6 The Council's statement of facts and contentions also raises traffic issues and the applicant is thus perfectly entitled to call a traffic expert. The Council's statement of facts and contentions also refers to an issue described as the disconnection between the Green Square Town Centre and the appeal site and refers to a contention that the proposal and the Green Square Town Centre will not function as one cohesive centre. It refers to physical restraints separating the two and other matters relating to the separation of the two, including the length of the retail precinct that would result. 7 It seems to me that this issue also raises questions of urban design and the relationship between the subject site and the Green Square Town Centre, so that the applicant should not be limited in calling evidence on that issue. 8 Accordingly, the Council's notice of motion seeking to limit the expert witnesses to be called by the applicant is dismissed. 9 I now turn to the notice of motion for joinder brought by Landcom, which is the owner of No. 355 Botany Road, Alexandria. That property is within an area described as Green Square Town Centre which is identified as a planned major centre in Sydney's metropolitan strategy. In this respect, it may be said that Landcom is a competitor of the applicant's development. 10 The application for joinder is made under s 39A of the Land and Environment Court Act 1979 ("the Court Act") which enables the court to order the joinder of a person as a party to an appeal. The grounds upon which joinder is sought in the present case is a concern that not all relevant issues under s 79C of the Environmental Planning and Assessment Act 1979 would be sufficiently or at all addressed by the respondent Council; that unless Landcom is joined as a party, appropriate expert evidence will not be available to the Court in relation to the broader retail, economic and social issues raised in its submission lodged with the Council and other matters of detail. 11 Section 39A enables the Court to order the joinder of a person as a party if the court is of the opinion (a) that the person is able to raise an issue that should be considered but would be unlikely to be sufficiently addressed unless the person was joined or (b) that it is in the interests of justice or it is in the public interest that the person be joined as a party to the appeal. 12 In Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361, Preston J described the role of s 39A in the legislative scheme. I can do no better than quote his Honour (at [42] and [43]): I note at the outset that s 39A is facultative in the sense of enabling the Court to join a person to proceedings under the Environmental Planning and Assessment Act of the types listed in s 39A of the Land and Environment Court Act who would not otherwise have a right to be a party to such proceedings. Under the Environmental Planning and Assessment Act , persons who object to development proposed in a development application or to a modification of a development consent, have no right to be joined as a party to proceedings unless the development is classified as designated development. Objectors to development applications for designated development do have a right of appeal under s 98(1) of the Environmental Planning and Assessment Act and have a right to be joined to an appeal in respect of such development by the applicant for development consent under s 97(4).