Land and Environment Court New South Wales Medium Neutral Citation: Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27 Hearing dates: 6 March 2013 Decision date: 07 March 2013 Jurisdiction: Class 1 Before: Pain J Decision: The review of the Acting Registrar's decision of 1 March 2013 is dismissed Catchwords: PROCEDURE - review of acting registrar's decision to allow joinder of third party Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 s 39A Uniform Civil Procedure Rules 2005 r 49.19 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Woollahra Local Environmental Plan 1995 Cases Cited: Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293 Morrison Design v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Category: Procedural and other rulings Parties: Mr Edmonds (Applicant on Notice of Motion) Manderrah Pty Ltd (Applicant/Respondent on Notice of Motion) Woollahra Municipal Council (Respondent) Representation: Mr P McEwen SC (Applicant on Notice of Motion) Mr I Hemmings (Applicant/Respondent on Notice of Motion) Mr S Simington (solicitor) (Respondent) HWL Ebsworth Lawyers (Applicant on Notice of Motion) Susan Hill & Associates Lawyers Pty Ltd (Applicant/Respondent on Notice of Motion) Lindsay Taylor Lawyers (Respondent) File Number(s): 10004 of 2013 Judgment 1The Acting Registrar joined Mr Edmonds as a party pursuant to s 39A of the Land and Environment Court Act 1979 (the Court Act) on Friday, 1 March 2013. The Applicant, Manderrah Pty Ltd, has filed a Notice of Motion dated 1 March 2013 seeking a review of that decision as provided by r 49.19 of the Uniform Civil Procedure Rules 2005 (UCPR). 2A site plan was tendered which shows the relationship between the respective properties of Manderrah and Mr Edmonds and other concerned neighbours. The submissions of Mr Edmonds state that the development application (DA) is for 15 self-contained residential units (which includes the refurbishment of the heritage cottage, 119 Queen Street), over four floors; with an excavation of some 7,000sqm (mostly sandstone) to accommodate a nominated 19 parking bays (with a capacity for 33 parking spaces); on a total site of some 2,442sqm. It is located at 119-121 Queen Street, Woollahra (the site), and backs onto Morton Lane (4m wide). When constructed, all vehicular access will be via Morton Lane. I note that Morton Lane runs into Dorhauer Lane which runs between Queen Street and John Street and is also 4m wide. 3The DA was lodged on 1 June 2012; following Council indicating prospective reasons for refusal on 5 September 2012, Manderrah lodged revised architectural plans and supporting documentation on 2 November 2012. The application is made under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (seniors SEPP); the land is zoned "Zone 2(a) - Residential "A" Zone" in Woollahra LEP 1995; in that zoning the proposal is prohibited. 4An aged care facility with 28 beds is presently on the site and uses Morton Lane exclusively for road access. Principles on review made pursuant to r 49.19 5In Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Basten JA at [52] identified relevant principles in review applications made under r 49.19 as follows: (1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19; (2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker; (3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review; (4) nevertheless, similar policy considerations may arise in relation to a review, including: (a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement; (b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and (c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review. Evidence 6Read before the Registrar, and again before me, were affidavits of Mrs Lesley Finn, solicitor, dated 14 February 2013, attaching a report of Mr Grey hydrogeologist, and 20 February 2013, attaching a traffic report of Mr McClaren dated 20 February 2013. Mr McClaren states that traffic generation from the development is likely to be greater than identified by GTK Consulting using the seniors SEPP requirements. He considers that further sensitivity testing is required, and a comparison assessment of similar development elsewhere in Woollahra for medium density development. Morton and Dorhauer Lanes are very narrow and no information about sweep paths has been provided with due regard to access for the largest design vehicle. He considers the generic traffic generation rate from the RMS guideline for seniors housing is quite old and the data underpinning it should be reviewed in the context of similar development where affluent and more mobile lifestyles of the occupants are likely. If these RMS figures are used, up to nine trips per peak hour are predicted. He also identifies pedestrian safety and the impact of additional traffic at the intersection of Queen Street and Dorhauer Lane as requiring consideration. 7The Council's statement of facts and contentions was attached to the affidavits. It does not identify any contention in relation to traffic. It states in relation to groundwater: The construction of the basement level would intercept and impede natural groundwater flows, impact upon the water table and therefore necessitate diversion around the basement and not to the proposed sump and pump system. The proposal is contrary to C1 of clause 3.4.13 of Woollahra HCA DCP 2003 insofar as it applies to permissible development. 8A series of photographs taken by Mr Edmonds showing vehicles negotiating along Morton and Dorhauer Lanes which are narrow at 4m wide, tendered before the Acting Registrar, were also tendered before me. 9As this is a hearing de novo additional evidence not before the Acting Registrar was also tendered. An additional affidavit of Mrs Finn dated 5 March 2013 was read which attached a further report of Mr Grey dated 4 March 2013 in which he referred to the Expert witness Code of Conduct and identified again the issues he considered were raised in relation to the geology and hydrogeology of the site as a result of the proposed development. Extensive excavation is required for the proposed basement carpark through the groundwater table. He concludes that there are data gaps which require additional investigation and assessment, the information provided to date being entirely inadequate to allow the assessment of the overall acceptability of the proposed development. Once further investigation is conducted a design and management plan for a permanent groundwater interception and drainage system would have to be developed to address various specified matters. Further photographs taken by Mr Edmonds of various vehicles using the narrow Morton and Dorhauer Lanes were also attached. 10An affidavit of Mr Kennedy, traffic engineer, dated 5 March 2013 was read by Manderrah. This criticised the application of the medium density housing traffic criteria applied by Mr McClaren given that the DA is for seniors housing, assessed accordingly as compliant. The concerns Mr McClaren raised are in relation to part of the public street network, the narrow streets which already operate with low vehicle speeds and increased driver awareness and which are already used as the street access for the existing aged care home. Mr Kennedy considered that the predicted increased traffic flows are so low at three or nine vehicle trips per peak hour that the numbers do not result in any appreciable difference in delays or levels of service at the intersection of Queen Street and Dorhauer Lane. He attached a minute from the Council's development and traffic engineer which identifies that a traffic report by GTK Consultants (Mr Kennedy's firm) dated May 2012 and additional statement in response to a request for more information were provided and assessed. The Council officer notes that parking requirements of the seniors SEPP are met. The traffic generation figures of 1.5-3 peak hour vehicle trips expected from the development are accepted. 11Both traffic engineers refer to access for ambulances along Morton and Dorhauer Lanes, disputing whether this is a real issue. I was informed that Manderrah now considers that ambulances can use the Queen Street entrance for emergencies rather than Morton Lane. This no longer appears to be an issue in the proceedings. Principles to be applied when considering an application for joinder under s 39A 12Section 39A provides: 39A Joinder of parties in certain appeals On an appeal under section 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979, 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. 13The principles applicable to applications under s 39A were generally agreed by the parties. The Court was referred to Morrison Design v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 at [42] - [43], [51] - [54] where Preston J identifies the role of public participation in planning processes and the need to be mindful of the limited appeal rights afforded third parties under the Environmental Planning and Assessment Act 1979. 14The multiplicity of parties is undesirable, per The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 at [34]. Mr Edmonds cannot rely only on the fact that the Council does not raise an issue in proceedings in order to succeed per Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293. An application under s 39A is a two stage process to determine firstly, whether s 39A is met then whether the exercise of discretion justifies an order Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44]. Mr Edmonds' submissions 15Mr Edmonds relies on two issues to found this application relying on s 39A(a), traffic and hydrology. The Council has not raised traffic impacts at all in the statement of facts and contentions. This is a real issue which will not be addressed at all by the Council, the issue being as identified in the McClaren report dated 20 February 2013. 16The Council has not adequately addressed potential hydrological impacts in the statement of facts and contentions. The Council's solicitor has informed the Court that he is instructed the Council considers that hydrological issues can be dealt with by way of conditions. As Mr Grey's report identifies, it is necessary that an adequate site investigation be conducted in order to understand the impact of the proposal given the extent of excavation intended for the basement carpark and the amount of groundwater in this area. Given the importance of these issues it is in the public interest that Mr Edmonds be joined. Manderrah's submissions 17It is not sufficient for Mr Edmonds to submit that the Council will not deal with an issue to succeed in this application per Kavia Holdings at [36]. The Council has considered the traffic report of Mr Kennedy as attached to his affidavit, requested further information from Manderrah and now considers that traffic impacts are not an issue to be raised in the Class 1 appeal. 18Hydrology is addressed by the Council as identified in the statement of facts and contentions. Manderrah provided the expert advice on hydrology to the Council. Manderrah's counsel was critical of the second Grey report. Consideration 19Mr Edmonds relies primarily on s 39A(a) on the basis that the two issues identified will not be considered at all or not sufficiently unless Mr Edmonds is joined as a party. Mr Edmonds wishes to be joined as a party so that he can place before the Court at the merits hearing the reports of Mr Grey on lack of information about potential hydrological impacts and Mr McClaren on traffic impacts in the surrounding narrow streets and raise the issues identified therein as contentions in this case. These are said to be significant issues with potential for serious environmental/amenity consequences to Mr Edmonds and other neighbours if not properly considered by the Court. Therefore it is also in the public interest to allow Mr Edmonds to participate as a party, relying on s 39A(b)(ii). 20As identified in Morrison Design, objectors including Mr Edmonds can expect that they will have the opportunity to participate in the hearing through the Council's case presentation including the opportunity to provide the expert reports of Mr Grey and Mr McClaren. The objectors have written detailed letters outlining their concerns to the Council and it is reasonable to infer the Council is well aware of their concerns. 21The only evidence/information about the Council's likely position at a hearing is the statement of facts and contentions. This identifies groundwater issues as set out above. The Council's solicitor's oral advice about his instructions on that issue is that a condition of development consent is likely to be acceptable. As already identified, traffic is not raised as a contentious issue so that I infer the Council is satisfied that the proposed development does not raise issues that need be raised in this appeal. The minute from the Council's traffic assessment officer attached to Mr Kennedy's affidavit requires a development consent condition concerning management of construction traffic. The Council's solicitor informed the Court that the McClaren traffic report has been considered by relevant Council officers since the hearing before the Acting Registrar last Friday and they do not consider there is a need to amend the statement of facts and contentions. 22As outlined above, additional evidence was tendered in addition to the material before the Acting Registrar. The parties made detailed submissions about the substance of the respective expert reports. Detailed submissions were made about the content of Mr Grey's second report. Mr Grey identifies the need for greater site analysis and data collection before a site management plan can be prepared and considers that the investigations carried out by Jeffrey and Katouskas, engineers, for Manderrah in support of the DA are inadequate. His report was criticised by Manderrah's counsel as inaccurately reflecting the extent of excavation and its potential impact on groundwater. It is difficult in an essentially procedural hearing to get to the bottom of differences in expert evidence. Mr Grey's report was not so obviously flawed, if it is at all, that it can be discounted. It raises issues of concern about the scale of excavation required for the development, which is substantial, and its potential impacts on groundwater, and is critical of the lack of data provided by Manderrah to date to support the DA. This material will not be presented at a hearing as part of the Council's case as the Council considers conditions of development consent are sufficient to address hydrological issues. The terms of s 39A(a) are met on this issue in my view. 23Mr Edmonds' traffic concerns relate to the narrow lane access to the site. The numerous photographs provided by Mr Edmonds can be handed up at the hearing as part of the objectors' evidence and the narrowness of the surrounding streets will readily be seen by a commissioner of the Court on a site inspection at the hearing. Mr McClaren's traffic report was criticised to some extent by the affidavit of Mr Kennedy, Manderrah's traffic engineer. The DA complies with the seniors SEPP parking requirements and therefore cannot be refused on this basis. There is also no criticism of Mr Kennedy's approach to assessing traffic generation. Mr McClaren's opinion evidence goes to the desirability of considering whether the likely affluent and mobile residents of the proposed development fit the data profile on which the seniors SEPP traffic assessment is based. While that may be an entirely valid concern from a traffic management analysis perspective, it is unclear to me what the Court can do if the DA is compliant with the seniors SEPP requirements. The need for Mr Edmonds to be joined in relation to traffic issues is less clear in these circumstances with regard to the requirements in s 39A(a). 24Manderrah's DA is for a significant development in the midst of a relatively dense urban neighbourhood. The site has many neighbours and the level of concern is reflected in the application for joinder before the Acting Registrar being originally for 18 people, ultimately reduced to Mr Edmonds. Taking into account the cautionary notes sounded in various cases about the limited circumstances in which s 39A orders for joinder ought be made, ultimately each case must be determined on its own facts so that considering the facts in other cases I find to be of little assistance. I consider that in the exercise of my discretion I would join Mr Edmonds as a party. In terms of this Notice of Motion before me, I dismiss the review of the Acting Registrar's decision of 1 March 2013. ********** 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: 08 March 2013