Land and Environment Court New South Wales Medium Neutral Citation: Fetherston v Wollongong City Council [2016] NSWLEC 1258 Hearing dates: 16 June 2016 Date of orders: 23 June 2016 Decision date: 23 June 2016 Jurisdiction: Class 1 Before: Registrar Gray Decision: See [32] Catchwords: Application for joinder; Dual occupancy; Applicant for joinder seeks to raise issues regarding the impact of coastal processes on the site; No evidence of site specific assessment of this impact; Issue not likely to be addressed without joinder; Discretion to order joinder; Discretion not exercised; Double Bay Marina order made. Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Ali v Liverpool City Council [2009] NSWLEC 107 Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74 Humphrey & Edwards Architects Pty Ltd v Council of the City of Sydney [2008] NSWLEC 329 Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293 Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27 Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256 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 Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 Category: Procedural and other rulings Parties: Michelle Carr (Applicant for Joinder) Adrian Fetherston (Applicant) Wollongong City Council (Respondent) Representation: Counsel: Mr To (Applicant for Joinder) Ms Pearman (Applicant) Solicitors: Mr Shaw, Swaab Attorneys (Applicant for Joinder) Mr Mantei, Planning Law Solutions (Applicant) Mr Reilly, Wollongong City Council (Respondent) File Number(s): 152821 of 2016 JUDGMENT 1. In these proceedings an application has been made by way of Notice of Motion filed on 4 May 2016 for Ms Carr ('the applicant for joinder') to be joined as a party to the proceedings pursuant to s39A of the Land and Environment Court Act 1979. The proceedings concern an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 against the refusal by the respondent, Wollongong City Council, of a development application made by the applicant, Mr Fetherson. 2. The development application is for a two storey dual occupancy on land at Stanwell Park Beach. The land is separated from the coast by a narrow access road, Kallaroo Avenue, which provides vehicular and pedestrian access to the land. Ms Carr's property adjoins the subject property to the South West, and has views to the beach over the subject land. The subject land has a realigned watercourse that has been the subject of a number of development consents. Background 1. The development application was originally lodged with Wollongong City Council ('the Council') on 1 September 2014. Following some amendments to the application and a second period of notification, in December 2014 the application was called up to the Independent Hearing and Assessment Panel (IHAP). The application was referred to an IHAP meeting on 25 March 2015 with an assessment report that recommended approval of the application subject to conditions. IHAP deferred the application and made a number of recommendations regarding the bulk and scale of the proposal, as well as raising issues regarding amenity impacts, the size of the garages, landscaping and street character. Further amendments were made to the application and it was referred again to an IHAP meeting on 8 December 2015. The referral was again accompanied by a Council report recommending approval of the application. Notwithstanding this, the IHAP was not satisfied with the amendments to the proposal and recommended refusal of the application, citing unacceptable bulk and scale as one of the reasons for refusal. An appeal against the refusal of the application, which is the subject of these proceedings, was then commenced by the filing of a Class 1 Application on 17 February 2016. 2. The proceedings, being an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 for development for the purpose of a dual occupancy, fall within the provisions of s34AA(1). As such, the Court is required to fix the proceedings for a s 34 conciliation conference. Further, if the proceedings do not resolve in the conciliation phase of the conference, the Commissioner is required to immediately proceed to a hearing and determination. The process is designed to be a quick and simple one. To achieve this, the Practice Note – Residential Development Appeals applies and provides at paragraph 23 that: "At the first directions hearing, the residential development appeal will be fixed for the final hearing which will involve a conciliation conference and hearing under s 34AA of the Land and Environment Court Act. This final hearing will usually be not more than 6 weeks after the first directions hearing." The Practice Note also provides (at paragraph 40) that leave to amend the plans is not ordinarily given where to do so would result in the vacation of the dates for conciliation and hearing. 1. Consistent with the practice note, a date was fixed for the conciliation and hearing of the proceedings at the first directions hearing on 14 March 2016. However, on 22 April 2016 the applicant filed and served a notice of motion seeking leave to rely on amended plans, which came before the Court on 3 May 2016. In anticipation that those amended plans would improve certain aspects of the development, and that additional time would be required to prepare supporting documentation, the dates previously fixed were vacated. The proceedings were then listed, and remain listed, for a conciliation and hearing under s34AA on 1 and 2 August 2016. 2. In its Amended Statement of Facts and Contentions, the respondent raises a number of issues for the Court's consideration. These include the impact of the proposal in light of its bulk and scale, and the suitability of the site given its constraints including: the characteristics of the access road, the existence of the watercourse, and the prominent location of the site when viewed from the public beach area and surrounding properties. The Council also contends that the development is not consistent with the objectives of the coastal zone as a result of its bulk, scale and visual impact, and that the proposal is inconsistent with a number of the controls in and objectives of the Wollongong DCP 2009. Present Application 1. The application for joinder is made pursuant to s39A of the Land and Environment Court Act. That section provides: 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. 1. It is well established that, by virtue of the word "may", the exercise of the Court's power under s 39A is discretionary. The Court must first be satisfied that one of the elements of sub-ss (a) or (b) are met. If so, the Court must then consider whether it is appropriate to order joinder in the circumstances. In considering whether the Court's discretion should be so exercised, it is relevant to have regard to the over-riding principle of achieving the "just, quick and cheap" resolution of the real issues in the proceedings (s 56 of the Civil Procedure Act 2005). 2. The notice of motion is supported by the affidavit of Mr Shaw sworn 4 May 2016 together with the exhibits to that affidavit, as well as an email from Mr Grant Harlow. The applicant for development consent opposes the application for joinder, and relies on the affidavits of Mr Mantei sworn 16 June 2016 and Mr Debnam sworn 25 May 2016. The Council does not oppose the application. Submissions 1. The applicant for joinder submits that there are a number of issues that are not likely to be adequately addressed if she were not joined as a party to the proceedings. The two main issues identified by the applicant for joinder are the impact of coastal processes on the site, and view loss. The force of the submissions was concentrated on the issue of coastal processes and their impact on the site, particularly in light of the watercourse and its role in stormwater management. Further, although the submissions made concerned only these two main issues, in the evidence in support of the application Ms Carr indicates an intention to also raise issues and rely on expert evidence in relation to traffic and parking, geotechnical site stability and 'civil engineering requirements' for the proposed structure. 2. The applicant for joinder submits that whilst the Council has assessed the impact of the proposal on coastal processes, there has been no assessment of the impact of coastal processes on the land. Further, the applicant says that, having regard to the evidence, the assessment of the flood risk was limited to the flood levels and the assessment of the impact of coastal processes on land was limited to the general maps of ocean inundation and the zone of reduced foundation capacity. The applicant therefore submits that the specificities of the site, including the existence of the water course, have not been properly considered in making an assessment of the impact of coastal processes on the site. 3. The applicant for joinder submits that the issue is a real one. In support of this, the applicant for joinder draws to my attention the notation proposed by the Council (in its report to IHAP) to be placed on the conditions of consent to notify an owner of any potential risks. That notation is proposed to be "The applicant is advised that the property may be at risk from Coastal Geotechnical Risk/Ocean Inundation/ Reduced Foundation Capacity. It is in the applicant's interest to take all necessary precautions to minimise the risk of property loss and/or damage." The applicant for joinder says that such a notation is inadequate and a proper assessment ought to be required and carried out. 4. The applicant for joinder also points to the fact that the risk regarding coast processes has been identified by the Council generally in relation to the coastline. As a result, the Council has gone to great expense to have a coastal zone study carried out and to commence management planning for the preliminary identified inundation and stability risks. That it has been identified by the Council as a real risk generally for the coastal areas means that, on the applicant for joinder's submission, the impact of those coastal processes on the specific site ought to be properly considered. The applicant for joinder says that it intends to engage an expert to give evidence on this issue, and therefore submits that without her being joined as a party to the proceedings, the issue will not be considered at all. 5. In relation to the issue of view loss, the applicant for joinder says that the Court will be assisted by technical comparisons of view loss that can be given on her behalf and ought to be considered in the proceedings. The applicant for joinder stands to lose much of the view of the land and water interface of Stanwell Park Beach. The applicant for joinder submits that the issue of view loss will not be adequately addressed without a technical comparison of the views with and without the proposed development. 6. The applicant for joinder submits that, as the issue regarding coastal processes and flooding has not been considered by the Council, s 39A(a) is satisfied in that the issue is not likely to be sufficiently addressed absent joinder; and s39A(b)(ii) is satisfied because it is in the public interest that these issues be before the Court for consideration. 7. Further, the applicant for joinder submits that the residual discretion should be exercised in favour of the applicant for joinder because of a real concern about the prospect of instructions being given to the Council to reach an agreement in the conciliation phase of the s34AA process. This concern arises from the fact that the Council twice recommended approval of the development application. The applicant for joinder says that if they are not joined as a party to the proceedings, they will not be able to comment on the outcome of the conciliation. 8. The applicant for joinder also submits that if joinder is ordered, a timetable for preparation for the hearing can be accommodated whilst retaining the current dates for the conciliation and hearing, although says that the coastal issue may lengthen the hearing. 9. The applicant for development consent submits that there is nothing raised by the applicant for joinder that is 'special' or 'additional' that warrants an order for joinder. Rather, the applicant for development consent submits that Council has had regard to the issues relating to coastal processes and is satisfied that it didn't warrant being raised as an issue for IHAP's consideration or as a contention in these proceedings. The applicant for development consent points out that each of the issues of flood risk and coastal processes are reported in the Council's assessment as being issues that were referred to the appropriate officers for consideration and ultimately considered to be issues that did not warrant refusal. 10. Further, the applicant for development consent says that the issues regarding flood risk and coastal processes were also raised and adequately resolved in the Council's consideration of a previous development application to re-align the water course on the site. In considering that application and subsequently granting consent, the applicant for development consent submits that on the evidence all of those issues were considered. The applicant for development consent submits that the mere fact that the Council has considered these issues and come to the conclusion that they do not warrant refusal of the present application does not mean that s39A(a) has been satisfied when that same issue is then raised by an objector in the appeal proceedings. As such, the applicant for development consent submits that it is not appropriate for joinder to be ordered to enable the issue to continue to be raised. 11. The applicant for development consent submits that it is sufficient that the applicant for joinder will have an opportunity to make submissions at the commencement of the conciliation and hearing process. It was therefore submitted that the applicant for joinder has an opportunity to be heard in relation to her concerns. 12. The applicant for development consent also submits that the provision of technical comparisons to assist in the issue regarding view loss is not an appropriate basis upon which to make an order for joinder. 13. The applicant for development consent also submits that there are a number of discretionary reasons as to why joinder ought not be ordered. In particular, the applicant submits that if joinder was to be ordered then the hearing will not complete within the 2 days allocated, and that various other issues are likely to be raised by the applicant for joinder. The applicant for development consent submits that if there is to be any involvement of the applicant for joinder in the proceedings, it should be limited in some way or limited to a Double Bay Marina order for participation in relation to a defined issue only. Consideration 1. A body of case law has developed over time in relation to the Court's application of s39A. Some of the applicable legal principles were summarised by Pain J in Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27 as follows (at [13]-[14]): 13 The 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. 14 The 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]. 1. Turning to the first stage in what Pain J describes as a two stage process, I am satisfied that s39A is met. The dispute between the parties to the notice of motion is largely a factual one as to whether the issue of the impact of coastal processes on the site is one that has been considered or assessed, and if so whether that was done adequately or whether it should be raised as an issue in these proceedings. 2. In the breadth of evidence tendered on the application I consider that there is no evidence of an assessment of the impact of coastal processes on the site in light of features specific to the site, including the flow of stormwater from other areas across the site through the water course. The affidavit of Mr Debnam and its annexures demonstrate that in relation to coastal processes, flooding, stormwater and site stability the following issues have been either considered by the Council or addressed by the applicant: * The impact of the development on coastal processes; * Geotechnical stability of the site, particularly in light of the presence of the water course and the location of the site within an area of potential landslip; * The potential impacts relating to coastal risk by reference to the maps of 2050 and 2100 coastal geotechnical risk, risk of ocean inundation and zone of reduced foundation capacity; * The flood risk to the site having regard to flood levels; and * The adequacy of stormwater drainage from and over the site. 1. However, other than the assessment of the geotechnical stability of the site, there is no evidence that there has been any consideration of the site-specific impact of coastal processes on the site, particularly in relation to flood risk and coastal erosion and inundation. It is clear that the Council has identified coastal processes as an issue generally concerning the coastal area. However, there is no evidence of any assessment, either in the current development application or in the consideration of the earlier consent, in relation to the impact of those processes on the specific site, particularly given the location of the watercourse. In light of the fact that the applicant for joinder wishes to raise this as an issue in the proceedings and engage an expert to give evidence on this issue, I am satisfied that this issue would not be adequately addressed without any involvement by the applicant for joinder. The other issues raised by the applicant for joinder, such as view loss and vehicular access, are all raised in the proceedings through the Council's Amended Statement of Facts and Contentions. Further, on the evidence, the issue of geotechnical stability has been considered by the Council and I accept need not be an issue raised again in the proceedings. As such, I am of the view that s 39A is satisfied only in relation to the issue of the impact of coastal processes on flood risk on and coastal erosion and inundation of the site. 2. Having been satisfied that s 39A has been met, I now turn to whether the exercise of discretion in favour of making an order for joinder is warranted. Some of the case law on the question of joinder was discussed in my consideration of an application in Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256. In paragraph 16 I summarised some of the principles as follows: Three of these principles are that (1) the practice of the Court is to limit the number of expert witnesses on any issue and to prevent the duplication of evidence (Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63; Homemaker Hub Pty Ltd v Strathfield Council) ; (2) A written objection may be sufficient to bring the issues of an objector before the Court (Humphrey & Edwards Architects Pty Ltd v Council of the City of Sydney); and (3) In considering whether to make an order for joinder, the Court is required to balance the need for efficiency with the need to have all relevant matters before the Court for the consideration of the development application (Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195). 1. In carrying out the balancing exercise referred to in (3) above, I am of the view that in the circumstances of these proceedings the Court's discretion should not be exercised in favour of making an order for joinder. Although the force of the applicant for joinder's submissions related to the issue of the impact of coastal processes, the applicant for joinder has not indicated that she intends to restrain herself to this issue. Nor has the applicant for joinder prepared a draft Statement of Facts and Contentions in support of the present application to outline the precise issues to be raised. Indeed, the submissions in support of the application also raised issues in relation to the adequacy of the Council's consideration of view loss. Similarly, in the evidence filed in support of the application, the applicant for joinder indicated her intention, through her solicitor, to raise issues regarding traffic and parking, and geotechnical site stability. All of these issues have either been raised in the Amended Statement of Facts and Contentions or dealt with in material before the Council. 2. I therefore accept the submission made by the applicant for development consent that if joinder was ordered, there would be an unnecessary duplication of experts in relation to areas already to be dealt with by experts in the proceedings, and it would allow the applicant for joinder to continue to agitate issues that have already been considered by the Council. It would not be consistent with what is "just, quick and cheap" to allow a party to be joined to the proceedings in these circumstances and to do so would lead to proceedings that are costly and lengthy, disproportionate to the intention of s34AA and to the nature of the development itself. In relation to the issues other than the impact of coastal processes (that is, view loss, geotechnical site stability and traffic/parking) the applicant for joinder's submission will be before the Court in the Council's bundle of documents and has already been summarised in the Amended Statement of Facts and Contentions. Any technical analysis of the view loss can also be provided to the Council for inclusion in the bundle of documents and can be given by the applicant for joinder in support of any submission made or evidence given as an objector at the commencement of the conciliation or the hearing. 3. Further, the mere fact that there may be discussions at the conciliation conference that could lead to an agreement, or instructions given to the Council to reach an agreement, does not warrant the exercise of the Court's discretion in favour of making of an order for joinder. The applicant for joinder's concerns in relation to the giving of such instructions are speculative only. In any event, the applicant for joinder will have the opportunity to make submissions at the commencement of the conciliation. It generally then falls to the Council to ensure that genuine concerns relating to the proposal will be the subject of discussions in the conciliation. 4. However, I am of the view that it is appropriate for an order to be made to allow the issue concerning the site specific impact of coastal processes to be properly before the Court for consideration. This can be done through what is often described as a Double Bay Marina order, named after the decision of the Court in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. The power is now exercised pursuant to s 38(2) of the Land and Environment Court Act 1979 (see, for example, Ali v Liverpool City Council [2009] NSWLEC 107). Such an order will allow the applicant for joinder to raise the issue for the Court's consideration through submissions and through engaging an expert to prepare a report for the Court. To accommodate this order, I also consider it appropriate to make directions in relation to the filing of an individual expert report by Mr Daniel Martens, any individual expert report in reply, and a joint report following a conference of those experts. I am of the view that the dates for the conciliation and hearing can be retained, and that the raising of the additional issue can be accommodated in the two days allocated and does not warrant the vacation of those dates. If I am ultimately wrong and the conciliation and hearing is not concluded in the two days allocated, then the hearing can be stood over part heard following the conclusion of the second day. 5. Accordingly, I make the following orders: 1. Pursuant to s 38(2) of the Land and Environment Court Act 1979, leave is granted to Michelle Carr to make submissions and instruct Mr Daniel Martens to provide an expert report to the Court in relation to the site-specific impact of coastal processes on flood risk and coastal erosion and inundation. 2. Any expert report prepared by Mr Daniel Martens in accordance with order 1 above is to be filed and served by 1 July 2016. 3. Any individual expert report in response is to be filed and served by 15 July 2016. 4. If individual expert reports are filed in accordance with orders (2) and (3) above, the experts are to confer and file and serve a joint report by 25 July 2016. 5. The exhibits to the affidavits of Mr Debnam sworn 25 May 2016 and Mr Shaw sworn 4 May 2016 be returned. Joanne Gray Registrar 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 June 2016