Land and Environment Court New South Wales Medium Neutral Citation: Warriewood Vale Pty Ltd v Northern Beaches Council [2016] NSWLEC 77 Hearing dates: 16 June 2016 Date of orders: 17 June 2016 Decision date: 17 June 2016 Jurisdiction: Class 1 Before: Pain J Decision: See par [32] Catchwords: PROCEDURE – application for joinder as party in Class 1 proceedings by owner of adjoining land – operation of density provisions in Pittwater Local Environmental Plan Legislation Cited: Land and Environment Court Act 1979 (NSW), ss 34, 38(2), 39A Pittwater Local Environmental Plan 2014 (NSW), cl 6.1 Cases Cited: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5 Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 Category: Procedural and other rulings Parties: Warriewood Vale Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: COUNSEL: M Libbey (Intervenors) M Staunton & N Hammond (Applicant) A Stafford (Respondent) SOLICITORS: LC Muriniti & Associates (Intervenors) Pikes & Verekers Lawyers (Applicant) King & Wood Mallesons (Respondent) File Number(s): 16/151186 Judgment Application for joinder as party 1. This judgment concerns a Notice of Motion dated 10 June 2016 seeking joinder by four people ("the intervenors") as parties in Class 1 proceedings pursuant to s 39A of the Land and Environment Court Act 1979 (NSW) ("Court Act"). An alternative order is sought relying on s 38(2) of the Court Act. The intervenors own 4 Forest Road Warriewood. The Class 1 appeal has been lodged by the owners of 8 Forest Road Warriewood the Applicant following the deemed refusal by Pittwater Council (now known as Northern Beaches Council) ("the Council") of its development application ("DA") for 85 dwellings and related civil works at 8 Forest Road. 2. The Court Act provides: 38 Procedure … (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, 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. … 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. Pittwater Local Environmental Plan 2014 6.1 Warriewood Valley Release Area (1) The objectives of this clause are as follows: (a) to permit development in the Warriewood Valley Release Area in accordance with the Warriewood Valley Strategic Review Report and the Warriewood Valley Strategic Review Addendum Report, (b) to ensure that development in that area does not adversely impact on waterways and creek line corridors, protects existing native riparian vegetation and rehabilitates the creek line corridors, (c) to facilitate the mitigation of odours from the Warriewood Sewage Treatment Plant on the users and occupiers of residential development in a buffer area. (2) This clause applies to the land in the Warriewood Valley Release Area. (3) Development consent must not be granted for development on land in a buffer area or sector or at an address mentioned in Column 1 of the table to this clause unless the consent authority is satisfied that the total number of dwellings shown opposite that buffer area, sector or address in Column 2 of that table will be erected. Column 1 Column 2 Buffer area, sector or address Number of dwellings to be erected … … Sector 5 Not more than 94 dwellings or less than 75 dwellings … … (4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the proposed development will not have any significant adverse impact on any of the following: (a) opportunities for rehabilitation of aquatic and riparian vegetation, habitats and ecosystems within creek line corridors, (b) the water quality and flows within creek line corridors, (c) the stability of the bed, shore, and banks of any watercourse within creek line corridors. (5) In this clause: buffer area means land identified as "buffer area" on the Urban Release Area Map. creek line corridor means land identified as "creek line corridor" on the Urban Release Area Map. sector means land identified as "sector" on the Urban Release Area Map. Warriewood Valley Release Area means the land identified as Warriewood Valley Release Area on the Urban Release Area Map. 1. The Pittwater Local Environmental Plan 2014 ("PLEP") specifies in cl 6.1 in relation to the Warriewood Valley Release Area a dwelling limit on units in the 501(5) sector of 75 to 94 dwellings. The only properties in sector 501 are 4 and 8 Forest Road. If developed on a pro rata rate of 32 dwellings per hectare the Applicant's land would have 67 dwellings and the intervenors' land would have 27 dwellings. 2. The topics identified in the Council's Statement of Facts and Contentions ("SFC") filed in the Class 1 proceedings are failure to amalgamate and disproportionate dwelling density (contention 1), inappropriate access provisions and road design (contention 2), inadequate water management (contention 3), unacceptable design, built form and resultant amenity for the residential flat buildings and the town houses (contentions 6 and 7), inadequate provision of essential services (contention 8) and inadequate consideration of bushfire safety measures and unreasonable impacts on existing vegetation (contention 9) inter alia. 3. The Class 1 appeal was filed on 9 February 2016. A s 34 conciliation conference held on 23 May 2016 was stood over to 14 June 2016. The intervenors' Notice of Motion was filed on 10 June 2016. The parties advised the Court that the s 34 conference is ongoing and has been stood over to 5 August 2016. Evidence 1. The intervenors read the affidavit of Mr Muriniti (the intervenors' solicitor) sworn 9 June 2016 on the motion. A large portion of Mr Muriniti's affidavit was written as submissions. In his affidavit Mr Muriniti attests to the intervenors' ownership of 4 Forest Road, an area of land comprising 9,712m2 and zoned R3 Medium density under the PLEP. Mr Muriniti states that the intervenors seek to be joined in the proceedings on the basis that if the DA the subject of the substantive proceedings were approved it would seriously and deleteriously impact on the intervenors' ability to develop their land and also adversely impact on the amenity of their land and the surrounding area. The intervenors seek to be joined as the impact on their land far exceeds the impact on any other adjoining property. 2. Mr Muriniti states that the proposed number of dwellings greatly exceeds the pro rata dwelling density prescribed for 8 Forest Road by the "Strategic Review Report and Strategic Review Addendum". These documents envisage that 8 Forest Road be developed in conjunction with 4 Forest Road to achieve an appropriate dwelling yield in a manner consistent with desirable planning principles. The disproportionate commercial impact on 4 Forest Road should be taken into account in assessing the DA. The DA unreasonably limits the development potential of 4 Forest Road. Although the Council in the SFC takes issue with the uneven distribution of the proposed development, the intervenors nevertheless seek to squarely argue for a pro rata number of dwellings across the two sites, the only party to do so. The present DA would lead to an undesirable planning outcome as the ingress and egress from 4 Forest Road is arguably far superior to that for 8 Forest Road. 3. Annexure A to Mr Muriniti's affidavit is a letter dated 1 June 2016 from the solicitors for the Council which indicates that the Council is not arguing solely for a pro rata yield. Extracts follow: In defending the appeal, Council understands that argument with respect to the various site constraints impeding development of No 4 or No 8 may translate to a suitable division of density on the ground that does not meet a strict calculation of the pro-rata yield for each site. Council's key concern is arriving at an appropriate planning outcome, which may not be consistent with the commercial impetus of the interested parties. We note that Contention 1 particulars (c) and (e) of the Statement of Facts and Contentions filed by Council on 16 March 2016 were intended to flag that the proposal unevenly distributes dwelling density on one part of Sector 5 (the planning purpose for which has not yet been justified to Council). These particulars were not intended to suggest that Council would be arguing that No 4 and No 8 are necessarily strictly bound by pro-rata dwelling yields. 1. The contribution of the intervenors would be both unique and important. Mr Muriniti submits that it is in the public interest to permit their joinder as there would be a deleterious impact on the local community if the DA were approved. The ingress and egress restrictions may give rise to serious risks to the public in the event of fire or other emergency, which was of concern to other objectors at the s 34 conference. These risks are particularly high due to the bushfire prone, flood prone and slip affected site. Mr Muriniti also raises issue with the appearance and amenity of the buildings on a very dense site. 2. The Applicant read the affidavit of Mr Bennett (the Applicant's solicitor) sworn 16 June 2016 on the motion. Mr Bennett's affidavit annexes numerous documents including the Warriewood Valley Strategic Review Report 2013 ("Strategic Review") which is referred to in cl 6.1(1)(a) of the PLEP. Correspondence from Mr Muriniti seeking consent from the Applicant to permit the intervenors to participate in the onsite s 34 conference as objectors was annexed and an extract of a note prepared by Mr Bennett in relation to the s 34 conference outlining the evidence given on behalf of the intervenors. 3. The written submission prepared by Mr Tony Robb (planner) of Evolution Planning Pty Ltd on behalf of the intervenors and provided to the parties at the conference was also annexed to Mr Bennett's affidavit. In that submission Mr Robb states that his submission should not be seen as an objection to the DA but that his clients the intervenors support the development of sector 5 in a comprehensive rationalised manner, with the development potential of the land shared equitably and appropriately. The submission quotes comments made by the Council in response to an earlier subdivision application for 4 Forest Road, relevantly that "[t]he proposal for 18 lots is inconsistent with the minimum pro-rata dwelling yield for the site…" Mr Robb outlines the intervenors' issues with the DA being the dwelling density and land release provisions, the traffic issues with ingress and egress, the impacts on neighbouring properties and non-compliance with the height variation clause in the PLEP. In conclusion Mr Robb states: For the reasons outlined in this submission we are of the view that consent should not be granted to the proposed development in its current form. To achieve the optimal planning outcome for Sector 5 as a whole and to mitigate what we consider to be entirely avoidable adverse traffic, bushfire safety and amenity impacts, we respectfully request that Council recommend that the JRPP refuse the current application and instead facilitate a coordinated approach to the development of Sector 5 between the land owners of 4 and 8 Forest Road so that both their development aspirations, and those of Council and the State government, may be satisfactorily achieved. … 1. Mr Bennett attests to the expenses incurred by the Applicant in preparing for and attending the s 34 conference which involved engaging 10 expert consultants at a cost of approximately $40,000. Mr Bennett states that the Council has engaged an external traffic engineer and flood consultant and internal town planning and heritage experts. The representatives of the intervenors remained outside the room in which the s 34 conference was being conducted and engaged in without prejudice discussions with the Council's legal representatives. According to Mr Bennett the parties have agreed that the substantive issues in the proceedings are likely to be dwelling density (contention 1), access (contention 2) and APZ/tree removal (contention 9). As a consequence of the s 34 conference on 23 May 2016 the Applicant prepared further information and plans at a cost of approximately $72,000. In response to the issues identified in Mr Muriniti's affidavit Mr Bennett states that they are all issues raised by the Council in its SFC and in its assessment of the DA. 2. The Strategic Review is a lengthy document jointly prepared by the Department of Planning and Infrastructure and the Council. The main body of the Strategic Review outlines the background to its preparation, the outcomes of consultants' studies, makes recommendations for residential densities and the southern buffer and outlines matters relating to the provision of infrastructure and services. It contains the following information: 1. Table 3 "Summary of Urban Design Study Outcomes for Residential Sectors" in Chapter 7 states that the recommended density for 4 Forest Road is four dwellings per hectare of two storeys with a total of four dwellings. For 8 Forest Road the recommended density is 42 dwellings per hectare of 2-4 storeys with a total of 90 dwellings. 2. Chapter 8 headed Recommendations for Residential Dwellings states that where appropriate density should be increased to 32 dwellings per hectare, and that with the exception of sector 501 the "sector-based" approach should be relinquished to allow undeveloped sectors to be developed as separate parcels. A footnote states, "[s]ector 501 consists of two properties that have completed masterplanning process and established water management, road and built form arrangements and therefore should be developed as a sector". Table 4 states that the recommended density across sector 501 is 32 dwellings per hectare with a recommended yield of 94 dwellings. 3. Appendix 5 is a table outlining recommendations for residential densities. The "comment" for sector 501 states "[r]ezoning to be progressed to enable sector to develop at 32/HA (any urban form, however need to develop as whole sector to achieve density)". The table in Appendix 5 relates to the two lots in sector 501 both being developed pro rata with density of 32 dwellings per hectare. Appendix 5 is not referred to anywhere else in the Strategic Review. 1. The Applicant provided copies of numerous plans to the Court which were marked for identification. The first was an A1 sized map of 4 and 8 Forest Road and the surrounding area. A bundle of plans that accompanied the DA was also provided which showed the original layout of the proposed development for 85 dwellings in a mix of residential flat buildings and town houses. The third was a revised plan of the proposed development amended subsequent to the s 34 conference with a reduced number of 80 new dwellings and one existing dwelling in total. Submissions of intervenors 1. In terms of s 39A(a) the intervenors will contribute to the debate on the proper approach to planning under the PLEP and the Strategic Review to the effect that pro rata development is the best planning outcome across both sites. Further, the present proposal if approved would lead to a substantial loss of value in 4 Forest Road as it could have a maximum of nine dwellings only. That is an unreasonable limit of the development potential of 4 Forest Road. The Council in its letter of 1 June 2016 appears to no longer support a pro rata distribution across the two sites but rather to achieve the best planning outcome. Related to density are amenity issues of the built form proposed. 2. In terms of s 39A(b) it is in the interests of justice and the public interest to join the intervenors as uneven development impacts on a variety of matters which were ventilated strongly by other objectors particularly safety in relation to bushfire and flooding problems. Ingress and egress is also problematic as the most appropriate access is through 4 Forest Rd not across a small bridge on Jubilee Avenue. There is great benefit in 4 and 8 Forest Road being developed in tandem so that ingress and egress from 4 Forest Road would be available to dwellings on 8 Forest Road as well. 3. The Notice of Motion was not delayed and was prompted by the letter from the Council's solicitor dated 1 June 2016 extracted above in par 8 which identified for the first time that the Council would not be pursuing a purely pro rata approach to density as the SFC identified. Submissions of Applicant for development 1. Joinder is opposed as the Notice of Motion of the intervenors was delayed and should have been pursued much earlier. The intervenors participated in the s 34 conference on 23 May 2016 on site. The Applicant has spent considerable sums in the s 34 process with multiple experts attending and amendment of the plans at substantial cost. Joinder of the intervenors may place this expenditure at nought if additional evidence is brought on all the issues already identified and discussed with the Council in the s 34 process. A multiplicity of parties and experts is discouraged as this is against the just, quick and cheap resolution of the issues. The power of joinder should be used sparingly and not as an alternative path for objectors to development. There is no evidence that the intervenors intend to call any expert evidence which will contradict the Council's experts. 2. The Council's SFC adequately identifies the same issues as those relied on by the intervenors but perhaps for dwelling density in contention 1. Limiting of expert evidence and cost is an important consideration. Additional parties will add to the cost and the complexity of the issues when a number of less substantive issues are being resolved in the s 34 process which is ongoing. 3. As objectors the intervenors and their town planning consultant already have and will be able to continue to address these issues in the course of the proceedings. The intervenors will be able to make oral submissions at the hearing and any written submissions will be before the Court. 4. In the exercise of discretion the Court should look at any delay in the application, the likely strength of the issues sought to be raised and any other issue of potential prejudice in the proceedings. Council's position 1. The Council neither supports or objects to the orders sought in the Notice of Motion. Its legal representative was helpful in clarifying the Council's position in relation to the Strategic Review pointing out that the document deals with density of dwellings in the 501 sector in different ways. The only place where a pro rata rate of 32 dwellings per hectare across the two lots is recognised is Appendix 5 which is not mentioned anywhere else in the document. Finding 1. A number of cases have considered principles relevant to the application of s 39A. An often quoted decision is that of Preston J in Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 at [54], [57]-[59]. [54] 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 a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit 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 interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings. … [57] This is not a case where the Court would be deprived of meaningful assistance if the Owners Corporation were not be joined. Sometimes, by reason of agreement being reached between an applicant for development consent and the consent authority, there may be no meaningful contradictor and important issues that the Court needs to consider in order to give a proper and lawful decision, will not be available to the Court. [58] It was this desire to obtain meaningful assistance that led to the Court allowing persons to be heard on an appeal under s 38(2) of the Land and Environment Court Act in what came to be known as a Double Bay Marina order after the name of the case in which such an order was first made: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. Subsequently, the Land and Environment Court Act was amended to include s 39A which expressly allows the joinder of parties. [59] One of the purposes of s 39A, particularly reflected in paragraph (a), is to allow the joinder of a person as a party to enable issues to be sufficiently addressed and hence to inform the Court so that it can give proper consideration to the issues. … 1. In Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5 at [14] Craig J stated that the Court should be reluctant to allow additional parties to participate in the hearing of a development appeal in relation to non-designated development particularly where a proposed intervenor does not intend to call any expert evidence contradicting the evidence of another party. Justice Craig noted that similar considerations operate in relation to the application of s 39A and utilitarian orders under s 38(2) known as "Double Bay Marina" orders (see Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313). 2. Apart from density, the issues identified in Mr Muriniti's affidavit of access, amenity and built form, site suitability given bushfire and flooding risk are all addressed in the Council's comprehensive SFC and I understand that the Council has external or council officer experts in these matters. No information is provided in the intervenors' application of what additional expert evidence the intervenors would seek to call and whether that would be any different from the Council's experts on any matters relied on. That is significant given the large number of issues identified in the SFC about which the parties have been in discussion with their experts for some time through the s 34 conference process. Other than possibly in relation to dwelling density (contention 1) which I will consider separately there is no basis for finding that s 39A(a) applies to matters the intervenors wish to address. 3. Considering the issue of density, the application of the Strategic Review on the matter of density in sector 501 is likely to be challenging at any final hearing of this matter. The summary of the provisions above in par 13 highlights that the issue of density has a different emphasis in relation to sector 501 in different places, being identified as across the whole sector or within each lot in different tables. At the final hearing issues of construction of the Strategic Review are likely to be dealt with by way of submission and, separately, issues of town planning merit in relation to the application of the density provisions of the Strategic Review in the context of the PLEP to the present DA. 4. The PLEP and the Warriewood Valley Release Area controls for sector 501 envisage development across two lots which happen to be in different ownership. These controls give rise to the possibility of "first in best dressed" in terms of one owner obtaining greater dwelling density than the other lot owner if a DA is approved which allows a greater density on one lot than if the same pro rata rate of density is distributed across the two lots. If the Council and ultimately the Court at hearing does not adopt a pro rata rate or very similar to dwelling density across the two lots there will be potentially substantial planning and development implications for 4 Forest Road. I make these observations without forming any view on what the most appropriate development across the two lots is as I am not aware of any of the merit considerations which would apply in such an analysis. 5. Intertwined with their desire for pro rata density across the two lots in sector 501 is the understandable desire of the intervenors to maintain the value of their land through maximising its development potential. The decision in this Class 1 appeal does have potentially substantial economic implications for the intervenors. Such matters are generally not considered to be relevant in merit appeal proceedings which are focussed on achieving an acceptable planning outcome in a given situation and there is caselaw to that effect. Whether considered on a planning or economic basis the consideration of the Applicant's DA has potentially substantial implications for the intervenors or future owners developing the land at 4 Forest Road. 6. The Council's position as disclosed in the SFC was to advocate the same pro rata rate of density across the two lots. That position has been modified given the contents of the solicitor's letter dated 1 June 2016 which suggests that the best planning outcome will be sought which may or may not include a strict pro rata approach. As I understand Mr Stafford's submissions the Council will not oppose a pro rata rate across the two lots but that is not its primary position at this stage. The intervenors wish to contend for the same pro rata rate across both lots, a slightly different approach to the Council. Section 39A(a) applies on that issue but I should also determine whether in the exercise of my discretion an order is warranted. The interests of justice (s 39A(b)) in this case do suggest an order to enable participation ought be made given the implications of the Applicant's DA on 4 Forest Road. At issue is the extent of meaningful assistance the intervenors can provide to the Court. 7. The intervenors have made known their views through the s 34 conference process to date and can participate through the giving of written and oral submissions at the hearing. The usual court practice in Class 1 proceedings enables that participation. What may additionally be sought in future is the opportunity to call expert town planning evidence on the application of the density provisions in the Strategic Review, or at least submissions to that effect were made by the intervenors' counsel. 8. These factors lead me to conclude that I should make a "Double Bay Marina" order as provided by s 38(2) of the Court Act which enables the intervenors to participate on the matter of dwelling density (contention 1) through the making of legal submissions and calling town planning evidence in the s 34 conference process to the extent such an issue remains for consideration (it may not at this stage) and also at any hearing on the merits. 9. A draft order will be provided to the parties for comment before being finalised. ********** 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: 20 June 2016