Land and Environment Court New South Wales Medium Neutral Citation: Suh v Liverpool City Council [2016] NSWLEC 25 Hearing dates: 10 March 2016 Date of orders: 10 March 2016 Decision date: 23 March 2016 Jurisdiction: Class 1 Before: Moore J Decision: At [46] Catchwords: JOINDER – community group – application for joinder – statutory tests – nature of issues proposed to be raised by applicant for joinder – issues not likely to be canvassed by the council - public interest - joinder granted Legislation Cited: Land and Environment Court Act 1979 Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Cases Cited: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Morrison Design Partnership Pty Ltd v North Sydney Council and the Director-General of the Department of Planning [2007] NSWLEC 802; (2008) 159 LGERA 361 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWLEC 36; 129 LGERA 195 Tenacity Consulting v Warringah [2004] NSWLEC 140 Category: Procedural and other rulings Parties: Mina Suh (Applicant) Liverpool City Council (Respondent) Casula Community Group for Responsible Planning Inc (Applicant for Joinder) Representation: Counsel: Mr N Eastman, barrister/Mr M Sonter, solicitor (Applicant) Mr C Drury, solicitor (Respondent) Ms N Hammond, barrister (Applicant for Joinder) Solicitors: Mills Oakley (Applicant) Spark Helmore (Respondent) University of Newcastle Legal Centre (Applicant for Joinder) File Number(s): 11174 of 2015 Publication restriction: No TABLE OF CONTENTS Judgment The nature of the proposed development The statutory joinder provision The chronology of the proceedings The hearing on 7 March 2016 The continuation of the conciliation process The relevant differing contentions The anticipated differing evidentiary approach The s 39A tests and this application Consideration of the first of the s 39A tests Joinder in the interests of justice Is joinder in the public interest? Conclusion Orders Directions Judgment Introduction 1. Ordinarily, development application merit appeals to the Court are confined to being a contest between the applicant for development consent and the relevant consent authority. From time to time, however, individuals or organisations consider that they ought be able to become a party to development appeal proceedings. There are two avenues by which a party can be added to proceedings that would otherwise simply involve the development applicant and the relevant consent authority. First, s 39A of the Land and Environment Court Act 1979 (the Court Act) provides a mechanism for an application for joinder to be made and statutory tests against which such an application has to be measured. 2. Prior to the enactment of s 39A of the Court Act, in 2002, a more limited avenue for participation was available pursuant to s 38 of the Court Act using what has become known as a Double Bay Marina Order (so named as a consequence of the decision in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 which gave rise to the first use of such a process). Although there might be a legitimate debate (unnecessary to be addressed on this occasion) that s 39A has effectively superseded and eliminated the option of a Double Bay Marina Order, the recent trend in applications for joinder pursuant to s 39A is to plead, as a cascading option, a request for a Double Bay Marina Order. Such a cascading pleading is contained in the orders sought in the Notice of Motion for joinder that has been filed by the Casula Community Group for Responsible Planning Inc (the Community Group) in these proceedings. The nature of the proposed development 1. The application for development consent that has been made to Liverpool City Council (the Council) is for the construction of a new hotel at Casula. The site of the proposed hotel is on the Hume Highway, somewhat to the south of the point where that highway passes over the western portion of the M5 Freeway. The present building on the site, the Fontainebleau Motel, is to be demolished and entirely new premises to accommodate the hotel are to be constructed. For present purposes, it is unnecessary to detail conventional planning aspects of the proposed development such as site area; site dimensions and orientation; conventional traffic and parking matters; or the nature and design details of the proposed built form in order to deal with the joinder application. The statutory joinder provision 1. As earlier noted, the power to join an individual organisation to proceedings such as these is contained in s 39A of the Court Act. This provision reads: 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. The chronology of the proceedings 1. It is appropriate to set out a short chronology as this will assist in an understanding of the intermediate steps that have been taken concerning the joinder application in the period leading up to this decision. The available chronology demonstrates: * The development application was lodged with the Council on 30 October 2015; * This Class 1 appeal was commenced on 14 December 2015; * The first return date before the Registrar was 27 January 2016. The matter was stood over to 3 February 2016 and on that occasion, the matter was set down for a conciliation conference pursuant to s 34 of the Court Act with that conciliation conference to take place, commencing on site, on 8 March 2016 last; * On 29 February 2016, the Community Group filed the current notice of motion seeking to be joined as a party to the proceedings; and * The motion was listed for determination on Monday 7 March 2016. The hearing on 7 March 2016 1. At the commencement of the hearing on 7 March 2016, Mr Eastman, counsel for the development applicant, indicated that the joinder application was opposed. In addition to indicating that joinder was opposed on substantive merit grounds, Mr Eastman also indicated that it was the Applicant's position that consideration of the application for joinder was premature and should await not only the outcome of the conciliation process but also the filing of the Council's expert evidence concerning social impact issues (this being at the heart of those matters which the Community Group wished to advocate if joined, as is later discussed in more detail). 2. Mr Drury, solicitor for the Council, indicated that the Council took a position of what I choose to describe as benign neutrality with respect to the joinder application. Mr Drury also indicated that, at the conciliation conference the following day, the Council officers who would be attending would not have delegated authority to enter into any conciliation agreement pursuant to s 34(3) of the Court Act. As a consequence, there was no prospect of the conciliation conference resulting in an agreement and orders approving a hotel development (whether in the form for which the development application had sought consent or in some revised, amended form). 3. In order to ensure that the conciliation conference could go ahead with some reasonable prospect of utility in potentially resolving issues that were outside the scope of those for which the Community Group wished to contend, I proposed to the parties that, subject to appropriate confidentiality agreements by those who might attend the conciliation element of the s 34 conference process, the Community Group's legal representative and one or two other representatives of the Community Group should be permitted to observe what took place during the conciliation process. After a short adjournment to permit the various legal representatives to obtain instructions on this proposal, agreement was reported to me. On this basis, I adjourned the joinder application proceedings to Thursday 10 March 2016. 4. The conciliation conference, presided over by Fakes C, took place as scheduled with observers for the Community Group present subject to the confidentiality undertakings that had been agreed. The continuation of the conciliation process 1. When the matter resumed before me on Thursday 10 March 2016, I was advised that some progress had been made during the course of the conciliation conference conducted by Fakes C and that the parties had agreed that discussions, within the conciliation process, should continue on a number of technical matters. There was to be a report-back, by telephone, to the Commissioner on 22 March 2016 at which time it was anticipated that the conference would be terminated and the matter would proceed to a hearing before another Commissioner on dates that had already been set, being 16 and 17 May 2016. 2. Mr Drury informed me that, of the more than 1,000 public submissions that had been received by the Council, only one was on behalf of a potential commercial competitor of the proposed hotel. He advised me that the Council did not understand that this commercial competitor was, in any way, associated with the Community Group. 3. I indicated that I considered it appropriate to permit the conciliation process to continue as proposed and that, as a consequence, I would deliver this decision after the Commissioner had terminated the conciliation conference. The representatives of the parties and of the Applicant for joinder agreed that this was an appropriate course to be followed. The relevant differing contentions 1. Prior to turning to testing the application for joinder against the requirements of s 39A Court Act, it is appropriate to set out the comparative position between the Council and the Community Group on the issue that is said to provide an appropriate basis for joinder, namely, what are said to be the likely adverse social impacts of the proposed development. 2. The Council filed its Statement of Facts and Contentions on 25 January 2016. The relevant contentions pressed by the Council in that document are in the following terms: Impacts on immediate surrounds: 4 In focusing the demographic analysis on Casula Suburb, the Applicant's SIA does not adequately consider the immediate surrounds of the proposed pub from which the proposed pub will be most accessible, and where impacts related to increased alcohol-related harm will be most intensely experienced, and thus does not adequately address social impacts in the relevant locality. 5 There are likely to be adverse social impacts from the relocation of a pub into the primary locality (the 1 km radius) of the proposed pub due to its highly disadvantaged demography, including a well above average concentration of people with characteristic that make them vulnerable to elevated levels of alcohol-related harm. Particulars: This increase in harm within the primary locality is likely to include: a) Increased levels of alcohol-related assault (non-domestic); b) Increased levels of alcohol-related assault (domestic); c) Increase in adverse amenity impacts, such as noise, nuisance and annoyance; d) Increase in vandalism and malicious damage; e) Increase in health and welfare-related impacts. 6 The adverse alcohol-related impacts are likely to more acutely experienced and noticeable to residents of the primary locality where there are no hotel or packaged liquor licences, and no operating liquor licences, and consequent low levels of alcohol-related harm currently. Their demography makes them particularly vulnerable to impacts from the introduction of a new pub. 1. The solicitor for the Community Group had provided two affidavits in support of the motion, both of which were read on 7 March 2016. Relevantly, annexed to the second of those affidavits (at folio 122) was a draft Statement of Contentions. This document set out those contentions proposed to be pressed by the Community Group if its application for joinder was successful. The relevant portion of the document was in the following terms: 1 The intervener contends that the Development Application should be refused for the following reasons: a. The degree of infiltration of alcohol-related harms and disturbances within surrounding communities and suburbs arising from the proposed development, beyond a one kilometre radius from that development will have an unacceptable social impact; b. The proposed development will cause an increase in the incidence of health-related problems caused by alcohol, including sexually transmitted infection, liver cirrhosis, alcohol use disorders, and injuries from assault and motor vehicle accidents; c. The mitigation measures and Plan of Management proposed by the applicant to mitigate against the social impacts of the development including alcohol-related harm are inadequate; d. Responsible service training is ineffective to mitigate alcohol-related harms; e The traffic impacts of the development will be unacceptable. 1. Although there was some discussion of the necessity to reframe their contentions if the Community Group was joined (with that reframing not needing to be canvassed here), the differences between these contentions and, as described below, the potentially significant difference in the nature of the evidence proposed to be led concerning these contentions required to be considered against the tests in s 39A of the Court Act. The anticipated differing evidentiary approach 1. The development application lodged with the Council included a social impact assessment that had been prepared by BBC Planners, a firm of consultants retained by the Applicant. The development application documents were Exhibit M on the motion. This social impact assessment is in an uncontroversial form and traverses what might broadly be expected to be issues covered by such a document and does so in what might be considered, generally, conventional terms. 2. The Council has retained Dr Judith Stubbs as its social impact assessment expert. The Community Group had been advised of Dr Stubbs' retainer and a copy of Dr Stubbs curriculum vitae was in evidence on the motion (Supplementary Affidavit of Jacquie Svenson, 4 March 2016, Annexure L, folio 65). Dr Stubbs is well known to me and other members of the Court as a person who is regularly used as a social impact expert in merit proceedings. However, Dr Stubbs' primary academic qualifications are outlined in the Community Group's submissions in support of the joinder application at [14]: … Dr Stubbs' curriculum vitae states that she has or holds the following positions, among others: Principal of Judith Stubbs & Associates, a social research and planning practice from which she conducts research and publishes on a wide range of matters including urban social justice; urban renewal; community participation in urban and community planning; affordable housing research and policy; social and economic impacts of diverse projects, policies and programs; gaming and alcohol impacts; natural resources; and impacts of an aging population on urban design and development. Appointed Senior Visiting lecturer (previously Senior Visiting Research Fellow) at City Futures/Australian Housing and Research Institute, University of NSW (January 2006 to 2015), in recognition of research and publication in the areas of urban renewal; community participation and social inclusion; gaming and alcohol impacts; housing, labour market and urban issues; accommodation and service issues for seniors and those with a disability; and affordable housing policy. … Independent advisor to the NSW Office of Liquor and Gaming and Racing on the social and economic impacts of Electronic Gaming Machines, and Member of the State Government's Social Impact Assessment Review Panel, which conducted peer review on all Class 2 Gaming SIAs prepared by industry; undertook peer review of Category B Community Impact Statements in relation to the granting and transfer of liquor licenses; and assisted with the drafting of guidelines and legislation (2002 to 2009). 1. The Community Group proposes, if joined, to adduce expert evidence from two experts. Those experts are proposed to be: 1. Professor Kypros Kypri; and 2. Professor Peter Miller 1. The curriculum vitae of each of these experts is in evidence on the joinder application (Affidavit of Tony Brown, 3 March 2016, Tab 10 at page 111 and Tab 8 at page 66). The s 39A tests and this application 1. I have earlier set out s 39A of the Court Act. It sets out three tests with the questions posed being in the alternative and not being cumulative. The first of those tests is whether, in this instance, the matters raised by the Council in its social impact contention will provide a sufficient and appropriate vehicle for the testing of the issues of the nature proposed by the Community Group in its contention on this topic. This test is intended to avoid unnecessary repetition and duplication in a fashion that would be contrary to the objectives set by s 56 of the Civil Procedure Act 2005. 2. The approach to be taken to this test was discussed by Preston CJ in Morrison Design Partnership Pty Ltd v North Sydney Council and the Director-General of the Department of Planning [2007] NSWLEC 802; (2008) 159 LGERA 361, where his Honour observed (at [44] to [47]) as follows: 44 In relation to the first limb in paragraph (a), I am not satisfied that the issues proposed to be raised by the Owners Corporation (and set out above as raised by Mr Pugh) would not be likely to be sufficiently addressed if the Owners Corporation were not joined as a party to the proceedings. Each of these issues has been raised repeatedly before the Council, are discussed in the Council officer's reports, and are addressed in the submissions of the Owners Corporation and in the reports of the experts engaged by the Owners Corporation (including the reports to which Mr Pugh referred). 45 These Council reports, submissions and expert reports are all contained in the Council documents. Such material would be provided to the Court on any appeal and would be considered by the Court in determining the appeal. The current parties, Morrison Design Partnership, North Sydney Council and the Director-General of Planning, have agreed to representatives of the Owners Corporation and its experts attending the forthcoming s 34 conciliation conference and addressing each of the issues about which the Owners Corporation is concerned and which it wishes to agitate on the appeal. 46 Accordingly, the issues will be addressed at the forthcoming s 34 conciliation conference. If the matter proceeds to a hearing, representatives of the Owners Corporation and their experts may also be called by the Council at that hearing. This would be so even if the hearing becomes a consent order hearing. It is the practice of the Court, as set out in the Practice Note Class 1 - Development Appeals, that on a consent order hearing, the consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. The consent authority is required to demonstrate that it has given reasonable notice to all persons who objected to the proposed development and advise them that will have an opportunity to be heard before the Court: see paragraph 36. 47 Each of these matters support a conclusion that the issues sought to be raised by the Owners Corporation are likely to be sufficiently addressed even if the Owners Corporation was not to be joined as a party. 1. On this point, I initially observe that Mr Eastman had submitted that it was premature to contemplate joinder as the expert evidence (particularly from Dr Stubbs) was not yet available. The clear inference to be drawn from this submission is that, when received, the evidence from Dr Stubbs might well traverse precisely those areas of expertise proposed to be dealt with by the Community Group's experts. I am unable to accept this submission. 2. I reach this conclusion for two reasons. The first is what might be described as a quantitative one, whilst the second is certainly appropriate to be described as a qualitative one. 3. The first difference arises from the difference between how the Council and the Community Group characterise the impact areas of the proposed development. The Council characterises the primary impact zone as being of a one-kilometre radius around the site, whilst the Community Group does not do so and proposes to contend that a differing and likely less uniformly shaped area of primary impact extending, at least in part I infer, beyond the one-kilometre radius. 4. The secondary impact zone pleaded by the Council is the remainder of the Liverpool Local Government Area, whilst the Community Group proposes to press a different area (whether broader because of the proximity of the freeway system or, perhaps, alternatively framed because of the presence of competing hotels (one located 1.82 kilometres to the north and the second located 2.3 kilometres to the south)). 5. The second significant difference, I am satisfied can be reasonably anticipated is between the matters proposed to be raised by the Community Group and those presently the subject of the earlier set out contentions of the Council and the particulars pleaded in support and the nature of the evidence proposed to be adduced by the Community Group. 6. I have earlier indicated that I have in evidence the curriculum vitae of each of the experts proposed by the Community Group. It is appropriate, for each of them, to provide a very short summary of the matters with which each is proposed to deal. This should be seen in the context of the way the Community Group initially proposed to particularise its primary contention (as earlier set out). 7. Although it will be necessary, after joinder, for the Community Group to reframe its particulars for reasons discussed in the hearing, this does not detract from the fact that, in qualitative terms, the approach proposed to be taken by the Community Group can reasonably be expected to have a very significant (if not radically different) flavour to that which can be expected on behalf of the Council by its retaining of Dr Stubbs on social impact issues. In saying this, I am not to be taken to be reflecting on Dr Stubbs' professional competence, merely upon what is well known to be her approach to such matters as reflected in earlier court proceedings in which she has given evidence and in matters known from her curriculum vitae. 8. The relevant summary information concerning the Community Groups proposed expert witnesses is set out below: 1. Professor Kypri is proposed to give evidence concerning the first and second elements - (a) and (b) - of the primary contention of the Community Group whilst 2. Professor Miller is proposed to give evidence with respect to the third of those elements - (c). 3. The fourth and fifth elements – (d) and (e) - although proposed to be shared between these two experts are either irrelevant - (d) - or required to be reparticularised - (e) as part of (b). Consideration of the first of the s 39A tests 1. Although I have earlier set out the full terms of s 39A, it is appropriate for consideration of whether any of the tests there provided are satisfied, to consider each of them in turn. 2. The first matter to which I turn is whether I should form the opinion "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" so that the Community Group should be joined as a party to the appeal. 3. First, although the words "raise an issue" might be read as requiring a distinct and differently expressly pleaded issue outside the range of matters already pleaded by the consent authority, I do not consider that such an interpretation, if appropriately available, provides a barrier to joinder for the Community Group. I have so concluded because, despite the general similarity between the Council's fourth, fifth and sixth contentions and the contention proposed by the Community Group, it is clear that, at least with respect to those matters of particularisation other than those appertaining to the definition of the primary and secondary areas of impact, that which will arise from revised pleadings on behalf of the Community Group will require consideration of matters not specifically arising from or necessarily to be addressed through the Council's contentions and attendant particularisation. 4. The nature of the expert evidence that can reasonably be anticipated on behalf the Community Group will, as I have earlier indicated I have concluded, very significantly differ in its approach from that which can be expected to be adduced by the Council. 5. If, however, as has been generally the practice in the past, the sting in this test is to be regarded as coming from the words "sufficiently addressed" rather than identification of a new issue, the nature of the matters that can reasonably be anticipated as being dealt with by the Community Group's experts should be regarded as addressing the question of social impact in a sufficiently differently focused fashion that would be likely to be complementary to, but not duplicating of, matters reasonably expected to be dealt with by Dr Stubbs. 6. Indeed, in my experience of licensed premises' matters that I have dealt with in the past, I am satisfied that it is likely that the matters able to be expected to be dealt with by the Community Group's experts may well bring an added dimension to the consideration of this application for approval of a new hotel when compared to material that has conventionally been presented on such matters in the past. 7. Having identified the nature of the matters (subject to the necessary repleading) that the Community Group's experts propose to address, it would seem to me that there is an adequate basis upon which to conclude, the Community Group's issues having been identified within the overall social impact scope, that significant aspects will not be addressed sufficiently if the Community Group is not joined as a party to the proceedings. 8. Whilst, in itself, this conclusion provides a proper basis for joinder being ordered, it remains appropriate, in my view, to address the other two bases provided for in s 39A of the Court Act. Joinder in the interests of justice 1. It does not seem to me that this element of s 39A of the Court Act is engaged by this application. I have always understood that this limb, in effect, potentially provided a vehicle for joinder in circumstances where a development proposal was likely to have a significant impact on the specific circumstances of the party seeking joinder. Instances of this nature might arise, for instance, when questions of view analysis, view-sharing and general matters discussed by then Senior Commissioner Roseth in the planning principle in Tenacity Consulting v Warringah [2004] NSWLEC 140 were to be engaged. Those circumstances clearly do not arise in this instance. 2. Mr Drury informed me that, as is set out in the Council's Statement of Facts and Contentions (Exhibit 1 on the Motion) that there were approximately 1,000 objections received to the proposed development and some of those might well press objections relating to the specific interests of affected property owners, that is not the nature of the application made for joinder by the Community Group. 3. I am satisfied that there is no basis to permit the Community Group to be joined in reliance on the second test contained in s 39A of the Court Act. Is joinder in the public interest? 1. It is well settled that the Court can enquire broadly about matters of the public interest (see Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWLEC 36; 129 LGERA 195). Indeed, having regard to the public interest is a mandatory manner for consideration (under s 79C(1)(e) of the Environmental Planning and Assessment Act 1979) in the assessment of development applications. 2. On balance, therefore, given the apparently likely widening of expert approach to the consideration of social impact issues of licensed premises arising from the evidence proposed to be adduced by the Community Group if it is joined as a party to the proceedings, I am also satisfied that it would be in the public interest to do so. As a consequence, the third of the tests in s 39A of the Court Act is also satisfied. Conclusion 1. I have concluded that the application by the Community Group to be joined as a party to the proceedings should be granted. I have reached this conclusion because, for the reasons earlier set out, I am satisfied that the first and third criteria in s 39A of the Court Act are satisfied (even though, as they are in the alternative, satisfaction of only one of them would have been sufficient). 2. I have also concluded that the second of the tests in s 39A is not satisfied. However, this failure has no bearing on the outcome of the Motion. Orders 1. It therefore follows that the order of the Court is: 1. The Casula Community Group for Responsible Planning Inc is joined as a party to proceedings No 11174 of 2015. Directions 1. In order to ensure that, in light of joinder being granted, an appropriate timetable is set to enable the hearing dates of 16 and 17 May 2016 being held, I make the following directions: 1. The parties are to confer on an appropriate revised timetable, including: 1. The timing of service of expert evidence; and 2. Joint conferencing of experts and preparation of joint expert reports; 1. If the parties are able to agree on such a timetable by the close of business on 1 April 2016, Short Minutes of Order reflecting the timetable are to be emailed to my Associate and those orders will be made in chambers; 2. If the parties are unable to agree on a timetable by the date specified in (2), the matter is set down for further directions before the Registrar on 5 April 2016; and 3. Liberty to relist before the Registrar on two days' 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. Decision last updated: 23 March 2016