Land and Environment Court of New South Wales CITATION : Architecture & Building Works Pty Ltd v Marrickville Council [2009] NSWLEC 1399 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Architecture & Building Works Pty Ltd PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 10554 of 2009 CORAM: Bly C KEY ISSUES: CONSENT ORDERS :- Notice of Motion; Application for Joinder LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 CASES CITED: Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802 DATES OF HEARING: 25 November 2009 EX TEMPORE JUDGMENT DATE : 25 November 2009 APPLICANT Ms S Duggan (barrister) SOLICITOR Conomos Legal LEGAL REPRESENTATIVES: APPLICANT ON NOTICE OF MOTION Ms H M Short (litigant in person) RESPONDENT Ms A Hemmings (solicitor) SOLICITOR Corrs Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 25 November 2009 10554 of 2009 Architecture & Building Works Pty Ltd v Marrickville Council Judgment (Notice of Motion for Joinder) 1 These proceedings involving a 27-townhouse development in Edgar Street, Tempe are listed in this Court for a consent orders hearing on 4 December 2009. This hearing is to follow on from a terminated conciliation conference under s 34 of the Land and Environment Court Act 1979 and the preparation of amended plans. 2 The amended plans were admitted by Sheahan J on 23 October 2009. These plans have been the subject of a very minor further amendment. 3 By Notice of Motion filed on 18 November 2009 Helayne Michelle Short seeks an order: "To become interveners in these proceedings." 4 The notice of motion is supported by Miss Short's affidavit that seeks to intervene in the proceedings on behalf of herself and to act as agent for certain identified members of the ad hoc Tempe Community Group. 5 The basis for the application is to be found in her affidavit and her submissions. Those of the matters that are are are are said to support the application in the main involve: o Inadequate opportunities for the viewing of the amended plans that are inadequate. o Council no longer pursuing former issues of concern. o Various amenity impacts including overshadowing, vibration during excavation, traffic generation and safety, visitor car parking and character. o Various other matters including: contaminated land and acid soils; geotechnical aspects; stormwater drainage and sewerage; electrical substation flooding; aircraft noise, heritage and archaeology. o Failure to comply with applicable planning controls including floor space ratio, driveways and setbacks 6 In relation to a number of these matters Miss Short consulted several agencies including Rail Corp, Sydney water and the Environmental Protection Authority and a number of experts who I understand advised her of certain concerns and/or the inadequacy of the materials that are to be provided to the Court as part of the application. 7 Taking all of these matters into account Miss Short is considering the need to provide expert written and/or oral evidence although in this regard she has no definite proposal at this time. 8 Hence in effect she submits that the only way to properly address all of these matters is that she and the members of the Tempe Community Group should be admitted as interveners. 9 Miss Short is not legally qualified. She did not precisely identify any legislative basis upon which the intervention is sought. 10 Miss Short was provided with a copy of the draft consent orders on 10 November 2009. 11 In response Miss Duggan submitted that Miss Short's application should be considered under S 39A of the Land and Environment Court Act 1979 that deals with joinder of parties. 12 She explained that all of the matters raised by Miss Short and those that she represents can be raised at the hearing and that the materials that are or will be available to the Court will be sufficient and can be utilised for the determination of these matters. These include the materials that were provided as part of the development application and the reports prepared by or on behalf of the council. 13 Miss Duggan rejected the argument involving the need for further expert evidence, this being based on speculation that any such experts would, if appraised of all of the available materials, be critical of the proposal. 14 Miss Hemmings essentially agreed with Miss Duggan that sufficient grounds had not been made out by Miss Short to justify the sought intervention. She emphasised that all of the materials referred to in the affidavit can be raised at the hearing and can be answered. 15 Miss Hemmings also submitted that if the Court is considering the need to obtain meaningful assistance pursuant to s38 (2) of the Court's Act, such an order should not be at large but would need to be constrained to particular identified concerns. 16 In Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802 Preston CJ dealt with an application for a neighbour who had applied to be joined as a party to a development appeal. At paragraphs 42 and 43 he considers the context of s39A of the Court's Act explaining that the provision is facultative by enabling the Court join a person who would not otherwise have a right to be a party to the proceedings. Ordinarily persons who object to a development proposal have no right to be joined as a party to proceedings unless the development is classified as designated development. Objectors to designated development applications have certain rights to appeal. As he says the distinction between the two types of development, designated and other development needs to be kept in mind when considering exercising power under s39A. It is not a plenary power; instead must be considered all according to the terms of the section. 17 S 39A provides that on appeal the Court may order the joinder of a person as a party to the appeal if it 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." 18 In relation to s 39A (a) I agree with the submissions made on behalf of the council and the applicant and am satisfied that the matters raised by Miss Short would be "likely to be sufficiently addressed" by the materials that will be made available to the Court during the consent orders hearing. Whilst Miss Short has raised what appear to be legitimate concerns I give determinative weight in this context to the fact that the council including its officers has or has access to relevant expertise or advice and is aware of its role and responsibilities under s79C of the Environmental Planning and Assessment Act 1979. Also, any legitimate concerns raised by objectors to the proposal will need to be dealt with to the Court's satisfaction. 19 As for s39A (b)(i) of the Court's Act this involves the interest of justice. In this context Miss Short and the members of the Tempe Community Group have expressed concerns regarding access to the file and the amended plans. However, I understand that full access to all available materials including the latest amended plans has been facilitated. 20 As for s39A (b)(ii) this involves the public interest. In this regard I acknowledge that at least some of the matters raised by Miss Short, such as compliance with planning instruments, involve the public interest. But again I accept that if and when these matters are raised they can and will be dealt with during the hearing. 21 Hence the interests of justice and the public interest do not dictate the need for further persons to be joined. 22 S 38(2) of the Court's act provides that in Class 1 proceedings The Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. 23 Hence the Court can obtain "meaningful assistance" by for example allowing, on a limited basis, an objector, without becoming a party to the proceedings, to lead evidence and cross-examine witnesses. Any such expert evidence must of course be subject to the relevantly applicable Uniform Civil Procedure Rules. In this context I note that whilst Ms Short would like to call certain experts and lead expert evidence this is as submitted by Miss Duggan simply "speculation". 24 Finally, in Morrison Design Partnership at paragraphs 53 and 54 his honour said: "A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission. The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit as to how long and detailed that process should be. 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 interest of justice to join the person who wishes to continue the process of objection on those issues to be a party to proceedings." 25 In this case I find that there will be an adequate opportunity for the community and affected persons to put forward issues that concern them and that those issues will be addressed by the consent authority and the applicant at the appeal. If the matters raised involves legitimate concerns that are not appropriately dealt with, notwithstanding that consent orders are involved, it remains within the discretion of the Court to dismiss the appeal. 26 In all of the circumstances I therefore find that it to be unnecessary for Miss Short and others to be joined as a party or be given the right to intervene in order for the matters of concern to be properly canvassed at the hearing. 27 The Court therefore orders that the application in the notice of motion is dismissed. 28 On behalf of the applicant Miss Duggan seeks costs and asked that the Court reserve judgment in relation to costs. Miss Hemmings on behalf of the council does not seek costs. Because I have no power in relation to costs it would be of no utility for me to reserve judgment as sought. This is not to say that a notice of motion seeking such costs cannot be filed with the Court in the usual fashion. ___________________ T A Bly Commissioner of the Court ljr 03/12/2009 - corrections to coversheet - Paragraph(s) coversheet 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.