Land and Environment Court New South Wales Medium Neutral Citation: Roderick Morton v Woollahra Municipal Council [2016] NSWLEC 171 Hearing dates: 07 October 2016 Date of orders: 07 October 2016 Decision date: 07 October 2016 Jurisdiction: Class 1 Before: Robson J Decision: (1) The Notice of Motion filed on 5 October 2016 be dismissed. Catchwords: JOINDER – application for joinder – statutory tests – issues proposed to be raised by applicant for joinder likely to be sufficiently addressed – public interest – joinder refused Legislation Cited: Land and Environment Court Act 1979 (NSW) ss 34AA, 38, 39 Cases Cited: Denoc Holdings Pty Ltd v Orange City Council [2016] NSWLEC 129 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (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: Roderick Morton (Applicant) Woollahra Municipal Council (Respondent) Lawrence Lau (Applicant for Joinder) Representation: Counsel: J Reid (Applicant) C Campbell (solicitor) (Respondent) M Wright (Applicant for Joinder) Solicitors: Lindsay Taylor Lawyers (Respondent) Storey and Gough Lawyers (Applicant for Joinder) File Number(s): 2016/00178543 EX TEMPORE Judgment 1. By Notice of Motion filed 5 October 2016, the intervener, Dr Lawrence Lau, seeks an order pursuant to s 39A of the Land and Environment Court Act 1979 (NSW) ('LEC Act') to join the proceedings. Alternatively, Dr Lau seeks an order under s 38 of the LEC Act that leave be granted to: 1. lead evidence on visual impacts, view loss and landscape heritage assessment in relation to the proposed development that forms the subject of these proceedings; and 2. cross-examine witnesses and make submissions in these proceedings. 1. The subject development application is DA 120/2014/1, which was originally lodged on behalf of the applicant, Roderick Morton, with the respondent, Woollahra Municipal Council ('Council'), on 4 April 2014 ('DA'). The DA seeks approval for alterations and additions to the property known as 4 Fisher Avenue, Vaucluse ('subject premises') that include a third storey addition taking the form of a new roof element. The plans have gone through a number of iterations, and the roof element has decreased in size from 94 square metres in the original iteration, to 73.9 square metres which is currently the subject of the substantive Class 1 appeal proceedings. The DA was refused by Council on 14 December 2015. 2. Dr Lau is the proprietor of 22 Wentworth Road, Vaucluse ('intervener's premises'), which is across the road and has a view of Sydney Harbour over the top of the subject premises. Dr Lau alleges that Council does not intend to properly defend the substantive proceedings, and now seeks to be joined as a respondent. Both the applicant and Council oppose the joinder sought by Dr Lau. 3. I note that this matter is of some urgency, as it is listed for a conciliation conference pursuant to s 34AA of the LEC Act on 11 October 2016. Evidence Dr Lau's evidence 1. The application for joinder was supported by an affidavit of Mr Christopher Gough, solicitor for Dr Lau, sworn 4 October 2016. Mr Gough deposes to the background of the matter. In particular, he deposes that there have been a number of applications or a number of iterations by the owners of the property in the present proceedings, which have been the subject of consideration by a number of parties. 2. His affidavit also annexes a visual impact assessment report prepared by Dr Richard Lamb dated August 2014. This report is in relation to the earlier iteration of the current development, which he assesses as having a total floor area of 91.43 square metres (as opposed to the third floor addition before the Court, which is 73.9 square metres in area). Dr Lamb's report does not consider the application presently before the Court. Council's evidence 1. Council relies on the affidavit of Christopher John Campbell, solicitor for the respondent, who also deposes to the background of the matter. The affidavit of Mr Campbell also exhibits a copy of a report by Council officers recommending approval of the DA, subject to conditions, as well as a range of correspondence that passed between the parties in relation to matters subsequent to Council's refusal. Applicant's evidence 1. The applicant relies upon the affidavit of Gary Allen Shiels dated 7 October 2016, an expert town planner. Mr Shiels, like the other witnesses providing evidence in this Motion, provides a detailed background to the application, and annexes a lengthy timeline detailing the history of the proposed development. Background 1. The DA has a long history, as outlined in each of the affidavits relied upon by the parties and as summarised below. 2. Prior to lodging the present DA, a similar third floor addition was sought with a proposed additional gross floor area of 164.65 square metres. This addition was refused by Council on 27 August 2012. This refusal was upheld by this Court in the judgment of Commissioner Tour in Gergely and Pinter Architects Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1084 ('Gergely'). 3. The present DA was lodged on 4 April 2014. During the notification period, the previous proprietor of the intervener's premises, Mr Steven Clint, lodged a detailed submission objecting to the proposed development, and provided Dr Lamb's visual impact report (referred to above) to Council. Despite receiving a recommendation from Council officers to approve the DA, Council opted to refuse it on 14 December 2015 because (a) of the height, bulk and scale of the proposed development, and (b) the proposed development did not provide for adequate view sharing. 4. With regard to Council's consideration of view sharing issues, I note that these dealt primarily with another neighbouring property, 1 Fisher Avenue, Vaucluse. Council did not specifically raise a concern relating to the views from the intervener's premises. 5. Dr Lau only became the proprietor of the intervener's premises in late 2015. Prior to becoming the proprietor of that property, he was aware that Mr Clint had objected to the DA as outlined above. 6. The applicant commenced Class 1 proceedings against Council's decision on 10 June 2016. Council thereafter determined to defend the proceedings, and continued to oppose the proposed development. 7. However, on 6 September 2016, Dr Lau became aware that Council no longer sought to defend the proceedings, and intended to enter into an agreement with the applicant which would have the effect that the appeal was upheld. The reason given by Council for this decision was that, given it had received an initial recommendation from its officers to approve the DA; the Council would need expert evidence to support its ultimate decision not to approve the DA. However, the Council had been unable to locate an expert willing to provide this opinion, and therefore was no longer seeking to defend the proceedings. Legal principles 1. The legal principles in relation to these matters are well understood. Such applications are governed by s 39A of the LEC Act, which 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 principles have been often referred to and considered by this Court. Of particular relevance is the judgment of Preston CJ of LEC in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802, where his Honour stated: [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 party 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 paras (a) and (b) of s 39 A… [emphasis added] 1. These principles have more recently been considered by Moore J in Suh v Liverpool City Council (2016) 216 LGERA 84; [2016] NSWLEC 25 at [21]-[30] and last week in Denoc Holdings Pty Ltd v Orange City Council [2016] NSWLEC 129 at [16]-[18]. Intervener's application 1. Dr Lau took the position that because there was no proper contradictor, he should be allowed to join the proceedings because it would be in the interests of justice, and would allow an issue to be raised that would not otherwise be sufficiently dealt with in the absence of a proper contradictor. 2. Dr Lau submits that if he is not joined, there would be no meaningful assistance given in evaluating his concerns, particularly in relation to his view loss. He submits that he should therefore be either joined to the proceedings, or be allowed to call expert evidence and participate in the hearing and/or conciliation. Whilst his expert evidence was not before the Court and had not been prepared, it was submitted that it would take substantially the same form as that contained in Dr Lamb's report. 3. Dr Lau further submits that whilst conciliations held pursuant to s 34AA of the LEC Act allow objectors such as him to attend and make their views known to the Court, this would be of limited utility given that Council intends to settle the matter and allow the development to proceed. This, it is submitted, would deprive him of putting proper material before the Court, and potentially lead to injustice. Consideration 1. I accept that Council has formed the view that it will seek to settle the matter and allow the development to proceed at the conciliation conference pursuant to s 34AA of the LEC Act next week. I also accept that if the development were to go ahead, there would be some impact upon Dr Lau. However, the manner in which these matters proceed cannot be predetermined and would not be predetermined. 2. The question is whether or not that concern is sufficient, combined with other matters, for the Court to make an order that Dr Lau become party. This is to be determined with reference to the requirements under s 39A of the LEC Act. However, before proceeding on this point, the Court should first consider the conduct of Council in more detail. Council's conduct 1. In most circumstances, it is of little relevance for the Court to consider what historical steps have been taken by a council in preparing for a matter. However, in a case such as this where Council sought to oppose the DA until 6 September 2016, approximately a month before the conciliation conference pursuant to s 34AA of the LEC Act, I consider that this evidence does carry some weight. 2. Both Council and the applicant rely on evidence that suggests that Council, despite originally opposing the DA, has reversed its position. Given that it had not followed the report from its officers recommending approval, Council therefore sought to have its position supported by the opinion of independent experts. However, the evidence before the Court is that whilst Council approached three experts, none were able to support its decision to refuse the DA. That evidence is unchallenged and relatively compelling. To date, four experts approached by Council (including its original report assessing the DA) have supported the development. If one includes Mr Shiels, the expert relied upon by the applicant, this means that five experts have opined that the development should proceed. Will a further issue be raised, that would not otherwise be raised? 1. It was submitted by the applicant that the requirement that there be some proper concern that an issue would not be sufficiently addressed does not arise in the current situation, and that the discrete issues raised by Dr Lau would be addressed without him being joined to the proceedings. In particular, the applicant noted that there have been a number of detailed occasions in the past where objectors have been able to articulate their concerns, and that Mr Clint (the previous owner of the intervener's premises) had taken advantage of this procedure. 2. Apart from the earlier material of Dr Lamb, there is no evidence supporting Dr Lau's position of the significance or otherwise of any effect on his property, or to counter the evidence that the proper concerns of the neighbours – and I use the term generally – in relation to bulk and scale, and indeed, view interference, have not been the subject of consideration thus far. In those circumstances, I cannot form a view that there is an issue that would not be properly raised or would not have been properly raised. 3. Put briefly, the Court needs to be satisfied that the intervener 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. 4. In my opinion, that does not mean that the Court is blind or disregards what has happened in the past. It appears that the concerns of the neighbours, and in particular, the concerns of the occupiers or owners of Dr Lau's residence at 22 Wentworth Road, have been the subject of consideration on a number of occasions, and indeed, at the time at which Council was considering the current application, so it is not as if these concerns have not been raised. 5. The question then is whether or not, to use the expression of Mr Wright, Council's "capitulation" provides a springboard for the intervener to say that Council having come to an opinion, he is now, in effect, locked out. In my opinion, that is not the case here. Dr Lau's "issue", in my opinion, has been at the forefront of Council's consideration for some time. 6. I do not criticise Dr Lau for not having his expert evidence before the Court, because he has only relatively recently been informed of Council's position, and since that time, has had to seek certain advice of experts, including legal advice and the like. He brings his application today, albeit late, only because the conciliation conference is proceeding next week. 7. Based upon the material before me, I am not comfortable that the position of Dr Lau is such that the issue in relation to the effect of the DA upon him would not be sufficiently addressed if Dr Lau was not made a party. The Council earlier expressed concerns in relation to height, bulk and scale, and view sharing, and Council did seek a number of expert town planners to support its position. Now it has adopted its present position, albeit late and albeit different to what it had adopted earlier, in my view, in such a manner that it does not appear to be appropriate for Dr Lau to participate as a party to the proceedings. 8. I have been referred to an earlier decision of Commissioner Tuor in Gergely, decided on 17 May 2013, which sets out certain concerns and findings in relation to the effect of the earlier development application upon 22 Wentworth Road. Although I do not place significant weight upon this because it is a different application, and as I indicated earlier, historical considerations undertaken by Council and indeed the courts, of some applications are of little assistance in considering amended or new plans, I note the finding of Commissioner Tuor that the view lost to the living areas of both 22 Wentworth Road and 1 Fisher Avenue was minor, although she did go on to indicate that the impact on the open-space area was somewhat more significant. However, I do not consider that decision is determinative in the matter before me, except to note that it is clear that the concerns of the neighbours have been before Council for some significant period of time, and indeed, it is in fact a matter which would have been at the forefront of Council's consideration. 9. In relation to the interests of justice, I find that the interests of justice do not require the joinder in the circumstances of this case as, despite the conduct of Council and despite Dr Lau being caught, albeit late, in relation to Council's present position; he will be able to attend and participate in the conciliation conference next week. He will be able to make his position clear. Public interest/interests of justice 1. Although the public interest is a discrete matter apart from the interests of justice, in my opinion, it does not require the joinder in the circumstances of this case because there has been, as far as I can see, compliance with the appropriate protocols and procedures to allow consideration to be given to concerned residents and objectors. 2. In these circumstances, I am conscious of my enduring obligation for just, quick and cheap resolution of proceedings, and I am conscious of the fact that there may be or is likely to be an abandonment or vacation of the hearing of the matter, and/or an expansion of the issues should I make an order. I hasten to add that that aspect has not played significantly upon my consideration of the matter, and I have considered the matter in light of the interest of justice and the public interest, and indeed, the fact that the issue has already been the subject of some significant consideration, more so than the fact that the making of the application may lead to an abandonment of next week's conciliation conference and the widening of the issues. 3. I am not satisfied that the intervener has placed sufficient material before me for him to be made a party to the proceedings (or for an order as per Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313), I am comforted in that by the material and submissions now before me, and I am of the view that Dr Lau will be able to participate appropriately and properly in the conciliation conference next week. In those circumstances, I dismiss the Motion. Orders 1. The Court orders that: 1. The Notice of Motion filed on 5 October 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: 17 March 2017