Basscave Pty Limited v Hawkesbury City Council [2015] NSWLEC 1030

Land and Environment Court New South Wales

Medium Neutral Citation: Basscave Pty Limited v Hawkesbury City Council [2015] NSWLEC 1030 Hearing dates: 19 February 2015 Date of orders: 19 February 2015 Decision date: 19 February 2015 Jurisdiction: Class 1 Before: Dixon C Decision: See paragraph [36] Catchwords: PROCEDURE – successful application for joinder of third party in Class 1 proceedings under s 39A of the Land and Environment Court Act 1979 Legislation Cited: Land and Environment Court Act 1979 Hawkesbury Local Environment Plan 2012 Cases Cited: Blacktown City Council v Haddad [2012] NSWLEC 224 Dooralong Residents Action Group Pty Limited v Wyong Shire Council (2011) 186 LGERA 274 Morrison Design Partnership Pty Limited v North Sydney Council [2007] NSW LEC 802; 159 LG ERA 361 Category: Principal judgment Parties: Basscave Pty Limited (Applicant) Marshall Rural Pty Limited (Applicant for joinder)

Hawkesbury City Council (Respondent) Representation: Counsel: Craig Legget SC (Applicant) Adrian Galasso SC (Applicant on joinder application) Stephen Griffiths (Solicitor) (Respondent)

Solicitors: Doyle Wilson Solicitors (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 11052 & 11053 of 2014

extempore Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. Marshall Rural Pty Limited (Marshall) seeks to be joined as a party in two development appeals which are presently listed for an onsite s34 conciliation conference tomorrow. 2. To that end, Marshall has filed two notices of motion dated 13 February 2015 seeking orders for joinder under s39A of the Land and Environment Court Act 1979 (the Act). Each motion is supported by an affidavit prepared by Marshall's lawyer Mark C Wilson and dated 13 February 2015 (Exhibit A1). 3. The affidavits which are read, subject to relevance, record that Marshall owns the property adjacent and contiguous with the land the subject of one of the development appeals and is an objector in both appeals. 4. The development appeals are matters numbered 11052 and 11053 of 2014. They concern two development applications lodged with the Hawkesbury City Council (Council) by Basscave Pty Limited (Basscave) for alterations and additions to two barns erected on land at Richmond Lowland. The proposal is to use each of the barns, which are known as the "Polo Barn" and, the "Sunnybrook Barn", as a restaurant with a seating capacity for 120 people. 5. The Council resolved to refuse its consent to both applications on 3 February 2015. The notice of determination in respect of the Polo Barn DA states the following reasons for refusal: 1. That the proposed development as described in the application is a 'Function Centre' which is prohibited within the RU2 Rural Landscape zone under the Hawkesbury Local Environment Plan 2012; and 2. The applicant has not provided suitable information demonstrating that the use would not have unacceptable noise impacts for adjoining properties. 1. The notice of determination in respect of the Sunnybrook Barn DA states the following reason for refusal: 1. The proposed development as described in the application is defined as a 'Function Centre' which is a prohibited within the RU2 Rural Landscape zone under the Hawkesbury Local Environmental Plan 2012. 1. The Council has filed a statement of facts and contentions in each appeal dated 14 January 2014. The statements essentially the same. They raise three contentions: Classification and Permissibility 1. The proposed development is defined as a 'Function Centre' which is prohibited within the RU2 Rural Landscape zone under the Hawkesbury Local Environmental Plan 2012. Particulars (a) The proposed development does not provide food preparation facilities within the building and would instead rely on the external preparation of food by caterers. On this basis the proposal cannot be defined as a 'Restaurant or Café' and would instead be defined as a 'Function Centre' under the Hawkesbury Local Environmental Plan 2012. (b) The plan shows that the Polo Barn/ Sunnybrook Farm does not contain a commercial kitchen or other facilities that may be used for the preparation of food. (c)The development is most accurately defined as a 'function centre' as the Polo Barn/Sunnybrook Farm is to be used exclusively for the holding of events and functions. Furthermore, a booking is required for the events and functions. Patrons are not able to walk in off the street and order food from the menu as is the case with a restaurant or café. Flooding 2. A. flood evacuation management plan has not been prepared for the development. This may be conditioned. Insufficient information 3. Insufficient information has been provided to allow the full and proper assessment of the development: Particulars (a) The prepared documentation fails to demonstrate how the development will be managed to meet the recommendations of the acoustic report. (b) A Quality Assurance Program in (QAP) for water usage intended in cooking/food preparation needs to be developed in accordance with the Private Water Supply Guidelines developed by New South Wales Health. (c) A plan showing location of car parking and service areas within the immediate vicinity of the Polo Barn has not been provided. (d) The provision of disabled access and facilities for the development is not demonstrated. This may be conditioned. Residents' concerns 4. The following matters were raised in submissions in response to the notification of the development: Particulars (a) The absence of a functioning working kitchen highlights the development will operate as a 'Function Centre' as opposed to a bone fide restaurant. (b) The development will generate unacceptable noise impacts for nearby residents. (c) The use of live bands and amplified music will generate unacceptable noise impacts for nearby residents. (d) The restaurants should be restricted to a two commercial areas, not rural land. (e) Roads within the Richmond Lowlands have not been designed to cater for the levels of traffic generated by the development. 1. Marshall submits that the Council has not considered the correct basis on which to characterise the use. It contends that the Council's assessments of the applications (as disclosed in the affidavit evidence of Mr Wilson - including the statements made by the respondent's Director of Planning, Mr Owen at the Council's meeting on 3 February 2015 (exhibit A)), have incorrectly focused on the inclusion of a kitchen in the developments for the purpose of characterising the use as a restaurant. 2. Marshall contends that a commercial kitchen is only one feature which leads to the characterisation of a use as a 'restaurant' and, in this case it is necessary to look behind the description of the development to construe what is actually proposed: Blacktown City Council v Haddad [2012] NSWLEC 224 at [19]; Dooralong Residents Action Group Pty Limited v Wyong Shire Council (2011) 186 LGERA 274 at [34]-[35] and [99]. 3. Therefore, in order to ensure that the issue of characterisation is sufficiently addressed Marshall submits it needs to be joined as a party to each appeal under s 39A of the Act. 4. Apart from the correct characterisation of the use Marshall also submits that there has been no adequate assessment of the noise impacts of the developments on the adjoining properties (including its land). It contends that the acoustic report referred to in the Council's contentions is an invalid report based on incorrect measurements. Therefore, the contention as framed by the Council is raised in the wrong way. It would like an opportunity to address the noise impacts of the developments on a different basis to that expressed by the Council so as to ensure that the noise issue is sufficiently addressed. 5. It also submits that it is in the interest of justice and, the public interest generally, that Marshall be joined as a party in each appeal: s 39A (b) (i) and (ii) of the Act. 6. As noted at the outset there is some urgency in dealing with these applications for joinder because the appeals are listed for an onsite section 34 conciliation conference before a Commissioner of the Court tomorrow. For that reason the Chief Judge has allocated these appeals to me under s30 of the Act to deal with the joinder applications and make such orders as are necessary to ensure the orderly and expeditious progress of the appeals. 7. Section 39A of the Act empowers the Court to join Marshall as a party to the proceedings if I am of the opinion: 1. 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 2. that: 1. it is in the interests of justice, or 2. it is in the public interest, that the person be joined as a party to the appeal 1. The Council opposes the joinder of Marshall as a party to the appeals. It submits that it has refused the applications and, its contentions, as framed in the appeal, embrace Marshall's issues. 2. Basscave also opposes the joinder of Marshall to each of the proceedings. It relies on the affidavit evidence of Andrew James Doyle filed on 18 February 2015 and the exhibits thereto (Exhibit A). A written outline of its submissions has been filed in Court (BWS). In summary, based on the affidavit evidence of Mr Doyle, Basscave is of the opinion that Marshall has had ample opportunity to raise its issues with the Council and that the Council's contentions sufficiently cover those issues. The opportunities provided to Marshall include making representations through its planning lawyer in respect of the applications before their assessment by Council, during that assessment process and, also, at the Council's meeting on 3 February 2015 when its lawyer addressed the Council before the applications were refused (BWS at[11]-[21]). In short, it contends that "The issues raised by the Council in its statement of facts and contentions squarely raise the concerns raised by Marshall in the assessment of the DA" at [14] of (BSW). 3. Therefore, it believes that Marshall's application to be joined as a party should be refused. Joinder is not necessary to ensure that Marshall's issues are sufficiently ventilated during the hearing or required as a matter of public interest or in the interests of justice. At [30] of (BSW) Basscave submits: "The Court, in determining the application, will be assisted by the Council as the genuine contradictor to Basscave, so that a proper and lawful decision may be made". 4. Marshall can object through the Council and address the s34 conference tomorrow if it wishes. Furthermore, if an agreement is reached during the conference and the Council decides to proceed by way of consent orders then Marshall would be notified of the proposed orders and, if still unsatisfied with the proposals could address the Court at any consent orders hearing. 5. The Council embraces the submissions made by Basscave in opposing the joinder of Marshall as a party to the proceedings.