Land and Environment Court New South Wales Medium Neutral Citation: Denoc Holdings Pty Ltd v Orange City Council [2016] NSWLEC 129 Hearing dates: 26 September 2016 Date of orders: 26 September 2016 Decision date: 26 September 2016 Jurisdiction: Class 1 Before: Robson J Decision: (1) The notice of motion filed by Dr Desmond Mulcahy in these proceedings on 21 September 2016 be dismissed. Catchwords: JOINDER – local objector – application for joinder – statutory tests – nature of issues proposed to be raised by applicant for joinder – issues likely to be sufficiently addressed by Local Council – public interest – joinder refused Legislation Cited: Land and Environment Court Act 1979 (NSW) Orange Development Control Plan 2004 Cases Cited: Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 Suh v Liverpool City Council (2016) 216 LGERA 84; [2016] NSWLEC 25 Category: Procedural and other rulings Parties: Denoc Holdings Pty Ltd (Applicant) Orange City Council (Respondent) Dr Desmond Mulcahy (Applicant for Joinder) Representation: Counsel: T Flaherty (Applicant) R O'Gorman-Hughes (Applicant for Joinder) Solicitors: Mills Oakley Lawyers (Applicant) Marsdens Law Group (Respondent) Campbell Paton & Taylor (Applicant for Joinder) File Number(s): 2016/00183468 EX TEMPORE Judgment 1. By motion filed 21 September 2016, Dr Desmond Mulcahy seeks an order that he be joined as a party to these proceedings commenced by Denoc Holdings Pty Ltd ('Denoc'). The primary proceedings are an appeal against Orange City Council's ('Council') refusal of a development application seeking consent for significant alterations and additions to an existing house which is a heritage item called Yallungah Mansion ('the Mansion'). The proposed development is characterised as a boutique hotel in Byng and Hill Streets, Orange. 2. There is some urgency in this application as the matter is listed before this Court tomorrow for a Conciliation Conference to be conducted in Orange pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) ('LEC Act'). 3. Mr Baird, who appears for the Council, has indicated Council neither consents nor opposes the Court making an order for Dr Mulcahy to become a party. Denoc, for whom Mr Flaherty appears, opposes the granting of the order sought in the notice of motion. Background 1. The facts may be briefly stated. The Mansion is a heritage item under the Orange Local Environmental Plan 2011 and it is within the Central Orange Heritage Conservation area. It adjoins a number of other heritage items which are referred to in the material which is before me. 2. Works associated with the proposed development include a partial demolition of the rear portions of the Mansion and significant external alterations, including the construction of a large two storey rear extension which will be attached to the Mansion and extend for some 60 metres. 3. Dr Mulcahy moves on the affidavit of Mason Richard Manwaring sworn 20 September 2016. Mr Manwaring's affidavit annexes a number of expert reports, including a detailed heritage impact report (prepared by James Nicholson) and a detailed town planning report (prepared by Andrew Saunders). Both reports, which were critical of the proposal, were prepared on behalf of Dr Mulcahy and a number of other objectors to the proposal, and were before Council when it was considering the application. I have read both expert reports attached to the affidavit. 4. The development application was advertised in September 2015 and 51 submissions were received, 5 of which were in support. The rest were received from objectors. 5. An internal Council report prepared by its town planner recommended approval of the proposal subject to a number of conditions. The Council report had also been peer reviewed by Mr Lindsay Fletcher, an independent town planner. It is also noted that Council owns a nearby property. 6. Despite the recommendation for approval, Council resolved to refuse the application on 3 May 2016 and there is evidence before the Court that the reasons for refusal were in accordance with matters raised by Dr Mulcahy's consultants. 7. In understanding Dr Mulcahy's concerns, some of the background should be noted. The matters of concern to Dr Mulcahy were set out in paragraph 17 of Mr Manwaring's affidavit, where he states that the heritage and planning reports prepared on behalf of his client raise seven discrete matters numbered (a) through to (g). 8. Dr Mulcahy's understanding was that the development application sought, amongst other things: 1. to adapt the Mansion for proposed motel type use; 2. to remove or change significant external and internal fabric of the Mansion including important internal features (being the existing central staircase and wreathed timber handrail); and 3. the construction of a large modern addition connecting to the existing dwelling that would have an impact upon the curtilage of the heritage item. 1. Another of the concerns of Dr Mulcahy's and those advising him is that it appears that Council's General Manager will have a delegation to make decisions without further input from Council proper. 2. It is relevant to record that when the Notice of Motion for joinder and the affidavit of Mr Manwaring were filed and served, Dr Mulcahy and those advising him had not received Council's Statement of Facts and Contentions which was filed on 8 August 2016, despite several requests. The views I have formed in relation to the matter, to be expressed shortly, are based upon my understanding that when the material was prepared and the motion was filed, it was unclear to Dr Mulcahy and his advisors precisely what issues Council was intending to raise. 3. Having now considered the Notice of Facts and Contentions, Dr Mulcahy's concerns reflected by the expert evidence he has marshalled, and by submissions made today, primarily relate to: 1. the impact on heritage items (especially the loss of the Mansion's important internal items); 2. the loss of landscaping; and 3. to a slightly lesser extent, the adequacy of parking. 1. Dr Mulcahy contended that these issues would not have been or will not be properly before the Court unless he becomes a party to the proceedings, as Council will not adequately raise these issues, and there is the prospect that there may be an agreement reached at the Conciliation Conference tomorrow without specific reference to his concerns. Section 39A of the LEC Act 1. The manner in which the Court deals with applications for the joining of parties is now well understood and depends upon s 39A of the LEC Act. Section 39A of the LEC Act 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. In Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802, Preston ChJ observed at [201]: [42] I note at the outset that s 39A is facultative in the sense of enabling the Court to join a person to proceedings under the Environmental Planning and Assessment Act of the types listed in s 39A of the Land and Environment Court Act who would not otherwise have a right to be a part to such proceedings. Under the Environmental Planning and Assessment Act, persons who object to development proposed in a development application or to a modification of a development consent, have no right to be joined as a party to proceedings unless the development is classified as designated development. … [43] This is relevant to note because the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation, including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering exercising the power under s 39A. The power under s 39A is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to appeals under ss 96, 96AA, 96A and 97 by dissatisfied applicants for or holders of development consent. Rather, the circumstances in which the Court may order a person to be joined as a party to proceedings of the types listed in s 39A are limited to the circumstances set out in paragraphs (a) and (b) of s 39A. … 1. Those principles have been considered on a number of occasions including the recent decision of Moore J in Suh v Liverpool City Council (2016) 216 LGERA 84; [2016] NSWLEC 25 ('Suh'). Were Dr Mulcahy's concerns sufficiently addressed? 1. Dealing with the two limbs set out in Section 39A of the LEC Act, I first deal with whether Dr Mulcahy's concerns raise issues that will not be sufficiently addressed if he were not joined. Submissions 1. It is put in submissions today by Mr O'Gorman-Hughes, who appears for Dr Mulcahy, that the two primary issues which remain are the heritage impact resulting from the internal changes to the Mansion and the landscaping. Mr O'Gorman-Hughes has drawn my attention particularly to various references in the expert heritage report dealing with the effects upon the internal configuration of the building. 2. Mr O'Gorman-Hughes submitted that the heritage impact of the changes to the internal configuration (in particular to the loss of the staircase) is not sufficiently raised in the Statement of Facts and Contentions. Mr O'Gorman-Hughes submits that if Dr Mulcahy is not permitted to be a party, and is therefore unable to call independent expert witnesses, there is a real likelihood that the issue of the significant loss of much of the interior of the heritage item will not be sufficiently addressed. 3. Mr Flaherty submitted that both matters raised both today as well as the matters summarised in the affidavit of Mr Manwaring have been adequately attended to and properly raised in the Statement of Facts and Contentions. 4. Mr Flaherty addressed each of the seven matters raised in paragraph 17 in Mr Manwaring's affidavit (to which I referred earlier) and has provided to the Court a short table responding to each of the sub-paragraphs. Consideration 1. Adopting Mr Flaherty's tabular formation and comparing the specific concerns in Paragraph 17 of Mr Manwaring's affidavit and the Statement of Facts and Contentions, the following is clear: 1. paragraph (a) – lack of adequate consideration of the heritage significance of the Mansion including its association with surrounding heritage items is raised in contention 2 and particulars (a), (b) and (e); 2. paragraph (b) – inadequate consideration of the impacts of the proposal on the heritage significance of the Mansion (including demolition of parts of the built form, removal of fabric and removal of curtilage) is raised in contention 2 and particulars (c), (d), (e) and (g); 3. paragraph (c) – heritage and planning impacts of bulk, scale and visual impact is raised in contention 1 and particulars (i), (j), (l) and (n), and contention 3 and particulars (a), (b), (c), (d), (e), (f) and (g); 4. in paragraph (d) – the incompatibility of the modern-style addition in terms of heritage and streetscape within the most intact and densely populated heritage precincts in Orange is raised in contention 1 and particulars (a), (b), (h), (i), (j), (k), (l), (n), and (o), and in contention 3 and particulars (b) and (f); 5. in paragraph (e) – the glare and reflectivity impacts is raised in contention 1 and particular (k), and contention 3 and particular (f); 6. in paragraph (f) – the loss of landscaping and the adequacy in terms of outlook is raised in contention 3 and particular (h), and contention 9; and 7. in paragraph (g) – insufficient parking is raised in contention 4 and particulars (c), (d), (e), (g), (h), and (l), and contention 5 and particulars (a) and (b). 1. I have recorded the particulars in some detail because it is clear to me that when the material was marshalled to support the Motion, the Statement of Facts and Contentions was not available to Dr Mulcahy or those advising him. It is my view that the manner in which the contentions have been articulated go a significant way to addressing the concerns of Dr Mulcahy and those advising him. It should also be noted that Council has retained three independent experts to advise it in support of the decision to refuse the application. These experts have expertise in relation to heritage, town planning, and traffic and parking respectively. Findings 1. It is clear that the Statement of Facts and Contentions squarely raises heritage concerns. Both contentions 1 and 2 of the Statement of Facts and Contentions are under the heading "Heritage". The first contention states unequivocally that the development application should be refused because the proposed development would not conserve the heritage significance of the item and the other items in the vicinity. It then provides detailed particulars which, if read as a whole and with an understanding of each of the relevant particulars, indicates that Council raises each of these matters. 2. The second contention, which relates to the development application not containing sufficient information to adequately assess the impact of the proposed development on the heritage item and other heritage items, also assists me in forming the view that the matters of concern to Dr Mulcahy will be adequately raised. Contention 2, particular (g), subparticulars (i) - (iv) of the Statement of Facts and Contentions state specifically that insufficient detail has been provided in relation to the removal of the timber stairs. I find that the removal of the timber stairs is adequately raised. 3. The second matter raised by Mr O'Gorman-Hughes dealt with the loss of landscaping. I find that the loss of landscaping (as well as the inadequacy in terms of outlook and adjoining owners) has been adequately raised as a proper issue and that the bulk and scale of the proposed building is a significant matter raised in the contentions. 4. The loss of vegetation is also put on the basis in the reports relied upon by Dr Mulcahy as the loss of curtilage. I note contention 3 of the Statement of Facts and Contentions states the development application should be refused because the proposed development is of excessive bulk and scale, and is of a modern design that is incompatible with the surrounding neighbourhood character, including the existing dwelling. That, combined with references to the various objectives in the Orange Development Control Plan 2004, raises matters in relation to landscaping. In particular, contention 3, particulars (b) and (h) of the Statement of Facts and Contentions raise landscaping as a discrete issue in relation to side boundaries and other particulars, including contention 3, particulars (c), (d), (e), (f) and (h) of the Statement of Facts and Contentions, all deal with the visual bulk and scale, the overall length of the building and other matters in relation to the size, scale and design of the building. These particulars all raise issues which are of concern to Dr Mulcahy. 5. I consider that all of the matters raised by Mr O'Gorman-Hughes have also been adequately raised in the Statement of Facts and Contentions, and find that each is likely to be sufficiently addressed by Council. Is joining Dr Mulcahy in the interests of justice or public interest? Submissions 1. Mr O'Gorman-Hughes alternatively submitted that it was in the interests of justice and the public interest that he be joined, pursuant to s 39A(b) of the LEC Act. This raises four matters which he submits support a finding that is in the interest of justice for Dr Mulcahy to be joined. First, he points to the fact that Dr Mulcahy has had a lengthy involvement with the matter, and far greater involvement than a typical objector. Secondly, he raises a concern in relation to the General Manager having a delegation to make decisions without the input and oversight of the Council proper. Thirdly, he notes that Council's conduct in delaying the provision of the Statement of Facts and Contentions. Fourthly, there will be significant personal impacts upon Dr Mulcahy (and his residence) in a manner similar to that which was dealt with by Moore J in Suh. Findings 1. In relation to those matters, I find that none, either on its own or in combination with the others, is sufficient to raise the interests of justice and/or public interest. The interests of justice and public interest require somewhat more and I look at those matters in the light of the facts that the Statement of Facts and Contentions does raise significant and detailed issues, and that Council has retained independent experts. 2. Though not specifically raised by Mr O'Gorman-Hughes, there also appears to be an implied allegation that Council may act inappropriately and not in accordance with the decision of Council in its meeting in May this year. I am of the opinion that if this was a concern it is no longer warranted, and I find that there are now no issues raised by Dr Mulcahy which I believe will not be sufficiently addressed by Council. I am of the view that there is nothing in the material to indicate that Council would in any way inappropriately conduct itself at the Conciliation Conference or any hearing. 3. In those circumstances, I am of the view that the Motion should be dismissed. Orders 1. The Court orders that: 1. The notice of motion filed by Dr Desmond Mulcahy in these proceedings on 21 September 2016 be dismissed. ********** 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: 05 October 2016