Land and Environment Court New South Wales Medium Neutral Citation: Warriewood Vale Pty Ltd v Northern Beaches Council (No 2) [2017] NSWLEC 21 Hearing dates: 23 February 2017 Date of orders: 23 February 2017 Decision date: 23 February 2017 Jurisdiction: Class 1 Before: Pain J Decision: (1) The Intervenors' Notice of Motion is dismissed. (2) Costs are reserved. Catchwords: PRACTICE AND PROCEDURE – application by intervenors to vacate hearing dates refused Legislation Cited: Civil Procedure Act 1995 s 56 Land and Environment Court Act ss 22, 23, 38 Pittwater Local Environmental Plan 2014 cl 6.1 Cases Cited: Kioa v West (1985) 159 CLR 500 Warriewood Vale Pty Ltd v Northern Beaches Council [2016] NSWLEC 77 Category: Procedural and other rulings Parties: Warriewood Vale Pty Ltd (Applicant) Northern Beaches Council (Respondent) John Peter Gigliotti (First Intervenor) Peter Gualtieri (Second Intervenor) Teresa Gualtieri (Third Intervenor) Vincenzo Sacco (Fourth Intervenor) Representation: COUNSEL: J Reid (Applicant) E Gentle (Respondent) M Tibbey (Intervenors) SOLICITORS: Pikes & Verekers Lawyers (Applicant) King & Wood Mallesons (Respondent) LC Muriniti & Associates (Intervenors) File Number(s): 16/151186 EX TEMPORE Judgment 1. This judgment concerns a Notice of Motion filed by the Intervenors on 16 February 2017. The motion sought to vacate the hearing dates of these Class 1 proceedings (16/151186) so that this appeal could be heard at the same time (whether back to back or together) as matter 17/40390 (the Intervenors' Class 1 appeal). The hearing in this matter is imminent being set down for 27 February to 3 March 2017. In the alternative, the Intervenors proposed other orders that affect the presentation of evidence and the scope of the Intervenors' participation in the hearing. Background 1. These proceedings commenced when the Applicant lodged a Class 1 appeal on 9 February 2016 following the deemed refusal by Pittwater Council (now known as Northern Beaches Council) of its development application (DA) for 85 dwellings and related civil works at 8 Forest Road Warriewood. 2. The Intervenors own the land adjacent to the Applicant's land at 4 Forest Road Warriewood. In Warriewood Vale Pty Ltd v Northern Beaches Council [2016] NSWLEC 77 at [31] the Court granted the Intervenors permission to participate in these proceedings on the matter of dwelling density through the making of legal submissions and calling town planning evidence in the s 34 process and at any hearing on the merits to the extent that such an issue remained for consideration. 3. On 23 November 2016 the Intervenors lodged a development application (DA) in respect of 4 Forest Road. They appealed against the deemed refusal of this application on 8 February 2017 thereby commencing matter 17/40390. The first return date for the appeal is 8 March 2017. 4. Together 4 and 8 Forest Road form part of "Sector 501" (also referred to as "Sector 5") of the Warriewood Valley Release Area, as show on the Urban Release Area Map in the Pittwater Local Environmental Plan 2014 (PLEP). Clause 6.1(3) of the PLEP provides that development consent must not be granted for development on land in Sector 501 unless the proposal is for a minimum of 75 and a maximum of 94 dwellings. 5. The DA for 85 dwellings at 8 Forest Road has been revised to 81 dwellings. The Intervenors' DA proposes 28 dwellings at 4 Forest Road. The Intervenors' concern that the development potential of their land might be constrained by a decision of the Council or the Court that does not adopt a pro rata rate of density for Sector 501 was the basis of their successful application to be granted limited participation in these proceedings. Circumstances leading to this motion 1. After an expert conclave on 9 February 2017 the Intervenors became concerned that the Applicant was intending to raise issues in these proceedings concerning the viability and technical feasibility of the DA for 4 Forest Road. This purportedly included evidence from a variety of experts which the Intervenors would not have the opportunity to respond to as to do so would be inconsistent with the conditions of their participation in these proceedings. 2. The other parties' legal representatives were not aware of the outcome of the expert conclave as no final report had been received by them. Evidence 1. The Intervenors read the affidavit of Mr Muriniti solicitor for the Intervenors sworn 16 February 2017 in support of the motion. A large portion of the affidavit was submission which is summarised below at par 12. Mr Muriniti attested to the circumstances which led to the making of this motion and reiterated the concern of the Intervenors that they would be denied natural justice if these proceedings were to go ahead at the listed hearing. 2. The Applicant read the affidavit of Mr Bush solicitor for the Applicant sworn 22 February 2017. The affidavit described a timeline of events from 28 January 2016 to the present including instances of correspondence between the Applicant's solicitors and Mr Muriniti representing the owners of 4 Forest Road. A letter from Mr Muriniti to Mr Asimus of Prestige Properties Northern Beaches dated 28 January 2016 indicated that the Intervenors were intending to lodge a DA for a 32 unit development shortly. The Applicant was not given prior warning of the Intervenors' intention to seek the orders sought in the present motion until it was served upon their solicitors on 16 February 2017. Mr Bush attested to not having received a request to contribute to a joint response to a query from the parties' town planning experts in accordance with the Court's Conference of Expert Witnesses Policy at [36]. 3. In addition to Mr Bush's affidavit the Applicant filed Exhibit TCB-1. The exhibit included various documents related to the Class 1 appeal. A letter from Evolution Planning to Mr Muriniti dated 31 March 2016 considered the merits of lodging a DA in respect of 4 Forest Road at that time given the progress that had been made in the Applicant's Class 1 appeal. Evolution Planning thought that the lodgement of a DA would not influence the outcome of the Applicant's appeal. The exhibit also included transcripts of the application to join the Intervenors to the proceedings before Pain J on 16 June 2016 and an appearance before Registrar Gray on 16 September 2016. Intervenors' submissions 1. The Intervenors submitted that if arguments were advanced and considered by the Court in these proceedings which concern their DA they could be severely prejudiced in their Class 1 appeal and could potentially be denied natural justice or procedural fairness, citing Kioa v West (1985) 159 CLR 500 at 582, 609 and 619. There would be a "de facto hearing" of the Intervenors' appeal in which it would not be able to lead appropriate evidence and may result in findings that pre-empt matters that the Court would be asked to consider in the course of determining their appeal. In these circumstances there is a risk that findings in the 8 Forest Road appeal preclude a full and proper consideration of the appeal in respect of 4 Forest Road. The Court could also deliver judgments in both matters that contain conflicting findings. 2. It was not envisaged at the time the Intervenors were granted leave to intervene that evidence other than town planning evidence would be led by the Applicant in relation to dwelling density. They did not know until after the expert conclave on 9 February 2017 that the Applicant intended to lead non-town planning evidence that concerned their DA and Class 1 appeal. 3. The Intervenors submitted that the Court has power under the Land and Environment Court Act 1979 (NSW) (Court Act) to address this situation and make the orders sought. Section 22 of the Court Act provides that the Court should consider what needs to be done including all available remedies in order to determine the matter completely and finally and avoid multiplicity of proceedings. The Court also has a general power to make such orders, including interlocutory orders, as it thinks appropriate under s 23. Proceedings in Class 1 of the Court's jurisdiction are also to be conducted with as little formality and technicality as the relevant statutes and matter at hand permit under s 38(1). Applicant's submissions 1. The Court has no power to make the orders sought in the Notice of Motion as the Intervenors are not parties in these proceedings. The Applicant relied on the letter from Evolution Planning to Mr Muriniti dated 31 March 2016 to suggest that the Intervenors made a strategic decision not to lodge a DA at that time. The Intervenors had several other opportunities to do so and even indicated to the Court on 16 September 2016 that they would lodge a DA later that day but did not do so until 23 November 2016. In this context the motion to vacate the hearing dates was made late. The Intervenors have had ample opportunity to raise their concerns with respect to evidence outside the scope of town planning and did not do so until the week prior to the hearing of these proceedings. 2. It would be contrary to s 56 of the Civil Procedure Act 1995 (NSW) to grant this order considering substantial preparation including evidence has occurred in anticipation of a five-day hearing commencing 27 February 2017. To stay these proceedings would cause serious prejudice to the Applicant who has holding costs on 8 Forest Road. Council's submissions 1. The Council neither consented to nor opposed the orders sought in the motion to vacate the hearing dates or expand the conditions of participation of the Intervenors to permit them to make submissions and call evidence from experts other than town planners in relation to density. The Council opposed the order that proposed restricting the scope of the evidence permitted at the hearing of the Applicant's appeal in respect of 4 Forest Road. No power to make order for vacation of proceedings 1. This matter can be dealt with briefly. The Court does not have power to make the order sought by the Intervenors to vacate the hearing dates in the Applicant's Class 1 appeal. Section 22 of the Court Act refers to "parties" and remedies to which they may be entitled necessary to determine matters completely and finally. A non-party does not have the legal capacity to seek the vacation order sought regardless of what is in ss 23 and 38 of the Court Act. Had I the power to make the order for vacation sought I would have declined to do so for the reasons given by the Applicant. This application is made far too late when the history of the Intervenors' DA is considered. It was lodged with the Council in November 2016 and the Intervenors' Class 1 appeal was filed in the Court on 8 February 2017. The Applicant's DA has been before the Court since February 2016 and the hearing date is imminent. 2. It is not appropriate to make orders constraining the admission of evidence in the Applicant's appeal as requested by the Intervenors. The Intervenors did not ultimately press for the alternative order sought allowing them to call additional experts as the hearing dates were so close. The alternative orders proposed by the Intervenors could be brought to the attention of the Commissioner hearing the proceedings. Orders 1. The orders of the Court are: 1. The Intervenors' Notice of Motion filed 16 February 2017 is dismissed. 2. Costs are reserved. ********** 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: 07 March 2017