Land and Environment Court New South Wales Medium Neutral Citation: Woodside Properties Pty Ltd v Wingecarribee Shire Council [2016] NSWLEC 133 Hearing dates: 11 October 2016 Date of orders: 11 October 2016 Decision date: 11 October 2016 Jurisdiction: Class 1 Before: Pepper J Decision: Application for joinder refused. Catchwords: JOINDER: local objector – application for joinder – applicable legal principles – issues raised by applicant for joinder likely to be raised and addressed by council – no public interest – joinder refused. Legislation Cited: Bundanoon Development Control Plan 2010 Land and Environment Court Act 1979, s 39A State Environmental Planning Policy (Exempt and Complying Developments Codes) 2008 Wingecarribee Local Environmental Plan 2010 Cases Cited: Denoc Holdings Pty Ltd v Orange City Council [2016] NSWLEC 129 Fenwick v Woodside Properties Pty Ltd [2016] NSWLEC 104 Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27 Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361 Suh v Liverpool City Council [2016] NSWLEC 25; (2016) 216 LGERA 84 Category: Procedural and other rulings Parties: Ms Christine Fenwick (Applicant for joinder) Woodside Properties Pty Ltd (First Applicant) Rochester Estate Pty Ltd (Second Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: Ms C Fenwick (in person) (Applicant for joinder) Mr P Rigg, solicitor (First and Second Applicant) Mr C McFadzean, solicitor (Respondent) Solicitors: Ms C Fenwick (in person) (Applicant for joinder) Mr P Rigg (First and Second Applicant) Swaab Attorneys (Respondent) File Number(s): 16/235027 Publication restriction: Nil Ex Tempore Judgment Ms Fenwick Seeks to Join Class 1 Proceedings as a Party 1. By notice of motion filed on 4 October 2016, Ms Christine Fenwick, a local objector, seeks to be joined as a party pursuant to s 39A of the Land and Environment Court Act 1979 ("the LEC Act") to the applicants', Woodside Properties Pty Ltd and Rochester Estate Pty Ltd ("the applicants"), Class 1 appeal against the deemed refusal by the council to approve their modification application. 2. In addition to the applicants, the respondent, Wingecarribee Shire Council ("the council"), also opposes the joinder of Ms Fenwick to the appeal. 3. In my opinion, the arguments raised by Ms Fenwick, to the extent that they are relevant, will be sufficiently canvassed during the Class 1 appeal, including during any on-site s 34 conciliation conference, and in the absence of sufficient public interest or the interests of justice warranting her joinder, her application must be dismissed. The Nature of the Development and the Proposed Modification 1. Some of the background to this application can be found in Fenwick v Woodside Properties Pty Ltd [2016] NSWLEC 104, wherein Ms Fenwick enjoyed success in her Class 4 judicial review challenge to earlier modification approvals granted by the council, principally on the basis that the council had failed to publically notify the modification applications. 2. The present modification application is, in effect, an attempt by the applicants to remedy the invalidity of the modifications the subject of Fenwick. 3. In short, on 20 April 2006 the council approved a 32 lot residential subdivision on Old Wingello Road, Bundanoon ("the consent"). 4. On 23 June 2016, during the Class 4 proceedings, the applicants lodged modification application 04/0353.06 which sought to delete conditions 16(a), 40(a)(ii) and 40(a)(iii) from the consent ("the modification application"). 5. On 4 August 2016 the applicants commenced the current Class 1 appeal. 6. At the joinder hearing, however, the applicants told the Court that they were abandoning the appeal insofar as it related to the deletion of condition 40(a)(ii) and (iii). That is to say, the applicants now seek only the deletion of condition 16(a) of the consent. 7. Condition 16(a) of the consent states as follows: 16. Section 88B Instrument – Various The plans of subdivision shall be accompanied by a Section 88B Instrument, which requires: (a) Dwelling houses to be single storey only with a maximum 1.2m from natural ground level to floor level. 1. The proposed subdivision is contentious amongst certain sections of the Bundanoon community. It was not in dispute that the council has received approximately 33 submissions opposing the development, one of which was from Ms Fenwick. Applicable Legal Principles Relating to Joinder of an Objector 1. Section 39A of the LEC Act deals with the joinder of an objector to Class 1 appeals. It provides that: 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. 1. The correct approach to be taken in determining whether or not an objector in the position of Ms Fenwick ought to be joined to the proceedings was articulated by Preston J in Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; (2007) 159 LGERA 361, where the Court observed that (at [44]-[47]): 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. In Manderrah Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 27 Pain J further adumbrated that (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. See also the most recent exposition of the legal principles in Suh v Liverpool City Council [2016] NSWLEC 25; (2016) 216 LGERA 84 (at [21]-[45] per Moore J) and Denoc Holdings Pty Ltd v Orange City Council [2016] NSWLEC 129 (at [16]-[34] per Robson J). Ms Fenwick's Concerns Will Be Sufficiently Addressed at the Hearing 1. Overwhelmingly, Ms Fenwick's evidence (contained in her affidavit affirmed 29 September 2016) and submissions, were directed to the removal of the drainage conditions in condition 40(a)(ii) and (iii), which are, to reiterate, no longer the subject of the Class 1 appeal. 2. Summarising her written material, including her submissions, and her oral arguments, Ms Fenwick contended that if she is not joined, the following matters she wishes to raise in favour of the retention of condition 16(a) will not be ventilated (in no particular order): 1. that the imposition of condition 16(a) by the council in 2006 in granting consent was a recognition of the steep topography of the land and to limit the visual prominence of the development, and in this regard, nothing has changed; 2. that the council "unlawfully" approved a two storey dwelling in 2016 within the subdivision and that it is likely that it will continue to approve such dwellings in the future; 3. that a two storey development will be contrary to the Bundanoon Development Control Plan 2010 ("the DCP"); 4. that the council is not complying with condition 22 of the consent (the requirement for the council's geotechnical engineer to provide a site classification); 5. that her land adjoins the subdivision and that she will be directly and immediately affected by any development on it, especially with respect to an adverse impact on her amenity and privacy; 6. that she was successful in the Class 4 proceedings and that if she is not joined, there will be no one in the present proceedings who will ensure that the council "does the right thing" (she does not "trust" the council in this regard); 7. that there have been several breaches of the conditions of the 2006 consent; 8. that to remove the condition would adversely affect the amenity and character of the area; 9. that the council has not consulted with WaterNSW in respect of the deletion of condition; 10. that the construction of a two storey dwelling would increase stormwater runoff; 11. that adjoining properties would be required to construct and maintain stormwater facilities at their expense and that the adjoining landholder's titles and s 88B instruments would have to be altered to accommodate the requirements of condition 13; and 12. that there is remnant native vegetation on her land that would be impacted by the removal of the condition. 1. Ms Fenwick gave no indication that she was intending to rely upon any expert evidence at the appeal. She has no recognised expertise or qualifications in town planning matters. 2. The council conceded at the hearing that it would, consistent with its Statement of Facts and Contentions, consent to the removal of condition 16(a). Nonetheless, this did not mean, it submitted, that Ms Fenwick's concerns, to the extent that they were relevant, would not be addressed at the appeal or the s 34 conciliation conference. This was because (also in no particular order): 1. the impact of the proposed deletion of the condition on her amenity and the amenity of the surrounding residents would be taken into account by the Court acting in its capacity as the consent authority; 2. her submissions and the submissions of the other 32 putative objectors would, in any event, be taken into account by the Court; 3. it was the Court, as the consent authority, and not the council, that would be making the merit determination regarding the deletion of the condition; 4. even if the condition was removed, each proposed two storey dwelling would have to be assessed by the council on its merits to obtain approval under the local environmental plan. Moreover any decision made by the council to grant consent could always be challenged in Class 4 proceedings in the Court; 5. the two storey dwelling that had been approved by the council and was the subject of trenchant criticism by Ms Fenwick, enjoyed the benefit of a valid consent. No attempt by Ms Fenwick, or any other person, had been made to challenge its validity; 6. conditions 13 and 22 were not the subject of the modification application and would remain conditions of the consent. Likewise, in light of the retention of condition 40(a)(ii) and (iii), all of the stormwater and other drainage obligations remained untouched and had to be complied with by the applicants; 7. the deletion of condition 16(a) would have no impact on the easement burdening Ms Fenwick's land. No additional drainage obligations would be imposed on Ms Fenwick (or any other landholder) by its removal; 8. the building of a two storey dwelling would not increase stormwater runoff; 9. WaterNSW had been notified of the modification application and had not raised any concerns with its consent; 10. any alleged breach of the conditions of consent ought properly be dealt with by Class 4 proceedings. They could not form the basis of this Class 1 appeal; 11. Ms Fenwick's earlier success in Class 4 proceedings did not entitle her to be joined in the Class 1 appeal; and 12. the remnant native vegetation on Ms Fenwick's property would not be directly affected by the construction of any dwellings, two storey or otherwise, and if indirectly impacted, this was a matter that the Court could take into account in its determination of the appeal. 1. The council also tendered a letter that it had sent to the applicants dated 3 August 2016. In the letter, the council indicated that it would consent to the release of the s 88B instruments by way of the deletion of condition 16(a) because: 2.1 Since the time of the original consent, Wingecarribee Local Environmental Plan 2010 (LEP) and the Bundanoon Town Plan DCP (DCP) have come into force. Both documents were subject of extensive community consultation prior to coming into force. 2.2 The LEP does not set height standards. Sections C1.5 and C2.9 of the DCP establishes a two storey height limit for dwellings. Under the DCP, proposed building heights are subject to an assessment against height objectives which include matters such as a low scale domestic residential character, overshadowing, views and privacy. 2.3 Also implemented since the original approval is State Environmental Planning Policy (Exempt and Complying Development Codes ) 2008 inclusive of the General Housing Code. The General Housing code permits, as complying development, one and two storey dwellings to a maximum height of 8.5m. 2.4 The minimum allotment size applicable to the site under the LEP IS 700m². The size of the approved lots, excluding the large homestead lot, varies from 789.9m² to 1000m². All lots are considerably above the minimum lot size which affords additional opportunity to ameliorate any potential impacts deriving from a building height greater than that contemplated by condition 16(a). 2.5 The height restriction contemplated by condition 16(a) is not essential in my opinion to achieve a satisfactory town planning outcome in terms of height, bulk, scale, character, streetscape and amenity impacts for neighbours in terms of privacy, overshadowing, visual mass, views etc. I form this opinion notwithstanding assessment commentary made in relation to the assessment of the original development application. 2.6 A possible and indeed likely consequence of permitting two storey development (subject of course to that form of development satisfying applicable town planning controls and warranting approval), as opposed to development in the form contemplated by condition 16(a), is that the a [sic] smaller building footprint would result. That consequence has environmental benefits in terms of minimising stormwater runoff. 1. At the hearing, the Court was taken to the relevant environmental planning instruments to establish the veracity of the opinions expressed in the letter. 2. The applicants raised arguments similar to those agitated by the council. 3. In my opinion, and for the reasons given by council, I accept that the matters raised by Ms Fenwick founding the basis of her joinder application are either not relevant, or will be sufficiently dealt with by the parties to the proceedings and the Court, either during any final hearing or the s 34 conciliation conference. 4. Ms Fenwick's principal contention is, understandably, the amenity impact on her property and, more generally, on the character of Bundanoon by the construction of up to 32 two storey dwellings resulting from the deletion of condition 16(a). This will, however, be a matter that the Court will have regard to in its capacity as the consent authority determining the appeal. 5. Further, to the extent that Ms Fenwick is, again, understandably, concerned that her contentions will not be raised if the matter does not proceed to a final hearing, the council volunteered to file, in advance of the s 34 conciliation hearing, its bundle of documents, including Ms Fenwick's comprehensive affidavit, together with all submissions received by it objecting to the modification application. The applicants have indicated that they will not object to this material being before the Court. 6. It must also be recalled that the s 34 conciliation conference is listed to commence on-site, which will further afford Mr Fenwick the opportunity, as an objector, to raise the matters that she has raised today and any other matter to the determination of the appeal. 7. I therefore find that Ms Fenwick's concerns will be sufficiently raised at any hearing or conciliation conference at which she is not present as a party. Joining Ms Fenwick is Not in the Interests of Justice or in the Public Interest 1. Ms Fenwick repeated the arguments above to submit that her joinder would be either in the public interest or in the interests of justice. Again, she relied, in particular, on her success in the Class 4 proceedings and the fact that because the council had acted improperly earlier (thereby giving rise to the Class 4 proceedings) it could not be trusted to act properly during the Class 1 appeal. 2. Again and at the risk of repetition, it is the Court, and not the council, who is the consent authority for the purpose of the Class 1 appeal. In addition, there is nothing in the material before me that would indicate that the council would conduct itself in any way inappropriately or unlawfully at the conciliation conference or any final hearing. 3. Further, as the council observed, the town planning controls have not remained static in the decade since the consent was granted. In that time, a new local environmental plan (Wingecarribee Local Environmental Plan 2010) and a new DCP have come into effect. Both instruments now permit two storey dwellings. They were the subject of extensive community consultation prior to promulgation. In addition, the State Environmental Planning Policy (Exempt and Complying Developments Codes) 2008 has come into force. It also allows for two storey developments. 4. As unwanted as these statutory changes are by Ms Fenwick, who naturally desires to preserve the amenity of her property and her rural lifestyle against an ever encroaching urban development, they cannot sound in her joinder in these proceedings. This is so notwithstanding the enormous emotional and financial sacrifice that Ms Fenwick has, to her credit, made in successfully bringing the earlier Class 4 proceedings and in endeavouring to participate in these Class 1 proceedings. Her intention in doing so is genuine. 5. Nevertheless, for the reasons given earlier, I do not find that it is in the interest of justice or the public interest to permit Ms Fenwick to join the Class 1 appeal as a party. To do so would, in my view, unnecessarily extend the length of the proceedings and add to its costs. Orders 1. For the reasons given above, the Court orders that: 1. the notice of motion filed by Ms Christine Fenwick on 4 October 2016 be dismissed; 2. five days prior to the hearing of the s 34 conciliation conference, the council is to file all documents upon which it seeks to rely at the hearing of the appeal, such bundle is to include the submissions received by the council during the notification of the modification application and the affidavit of Ms Fenwick affirmed 29 September 2016; and 3. the exhibits are to be returned. ********** 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: 12 October 2016