Land and Environment Court New South Wales Medium Neutral Citation: Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194 Hearing dates: 27 November 2018 Date of orders: 28 November 2018 Decision date: 29 November 2018 Jurisdiction: Class 1 Before: Robson J Decision: See orders at [55] Catchwords: JOINDER – application for joinder – statutory tests – whether issues proposed to be raised by applicant for joinder likely to be sufficiently addressed – public interest – joinder ordered Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 8.15 Land and Environment Court Act 1979 (NSW) s 39A Uniform Civil Procedure Rules 2005 (NSW) r 36.17 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Avalon Beach Property Pty Limited ACN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council [2017] NSWLEC 130 Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11 Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087 M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 13 Suh v Liverpool City Council [2016] NSWLEC 25; (2016) 216 LGERA 84 Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161 Category: Procedural and other rulings Parties: Huajun Investments Pty Ltd (Applicant) City of Canada Bay Council (Respondent) Al Maha Pty Ltd (Applicant for Joinder) Representation: Counsel: P Tomasetti SC with J Doyle (Applicant) S Kondilios, solicitor (Respondent) J Lazarus (Applicant for Joinder) Solicitors: Colin Biggers & Paisley Lawyers (Applicant) Hall & Wilcox (Respondent) Project Lawyers (Applicant for Joinder) File Number(s): 2017/00131433 Judgment Introduction 1. By notice of motion filed 26 November 2018, Al Maha Pty Ltd ('Al Maha') seeks to be joined as a respondent to these Class 1 proceedings and, if successful, seeks a consequential order that the hearing, set down for one day on 5 December 2018, be vacated. Al Maha is the owner of land adjoining the development site relevant to the Class 1 appeal. 2. The applicant in the proceedings, Huajun Investments Pty Ltd ('Huajun') lodged a development application ('DA') with the respondent, City of Canada Bay Council ('Council') in relation to a parcel of land which it owns at 38-42 Leicester Avenue, Strathfield. The DA seeks approval to demolish existing structures on the land and replace them with an eight-storey residential apartment building. 3. Huajun and Council previously reached an agreement with respect to the DA in a s 34 conference which the Court purported to approve in Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087 ('conciliation decision'). That agreement involved constructing a driveway on the land owned by Al Maha in the absence of owners' consent. This was attempted to be rectified by way of an amendment to the orders pursuant to the slip rule (r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR')). 4. Al Maha sought judicial review of the Court's decision in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 ('CA decision'). The Court of Appeal made orders quashing the conciliation decision and declaring the development consent invalid. Relevantly for present purposes, the Court of Appeal held that the conciliation decision was invalid in the absence of owners' consent and that the purported amendment pursuant to r 36.17 of the UCPR was ultra vires. 5. Subsequently, Huajun sought and obtained leave to amend the DA to delete "all references to any access now or in the future over [Al Maha's] land". 6. Al Maha submits that the consequence of the amendment to the DA is that access to the proposed development will now be required to be over an adjacent street, Leicester Avenue, which it says Council and Roads and Maritime Services ('RMS') objected to in the original proposal. 7. Shortly stated, Al Maha submits that Council's revised Statement of Facts and Contentions ('SOFAC'), filed on 22 November 2018, abandons without explanation numerous planning contentions that were in issue in its SOFAC dated 18 December 2017 (which was itself an amendment to an earlier SOFAC) which have not been resolved by amendments to the proposal. Al Maha submits that the abandonment of many of these issues is directly contrary to the opinions expressed by experts retained by Council in reports filed earlier in the proceedings. 8. According to Al Maha, the current position in relation to access is that RMS requires further information in relation to whether to support the amended DA and its proposed access over Leicester Avenue. Notwithstanding this, it says that Council consented, on 23 November 2018, to the matter being expedited and set down for a one day hearing on 5 December 2018. 9. Al Maha says that it is clear from the exchange between the parties before the Registrar on 23 November 2018 (when leave was given to rely on amended plans and the appeal was expedited and set down for hearing for one day on 5 December 2018) that the hearing is anticipated by Huajun and Council to be a consent orders hearing occupying less than a day. Al Maha submits that, despite protestations to the contrary from Council's solicitor, as the matter currently stands, there will be no proper contradictor at the hearing. 10. It is in those circumstances that Al Maha seeks to be joined to the proceedings as a contradictor. If successful in its joinder application, Al Maha seeks the vacation of the expedited hearing date on 5 December 2018 in order to marshal expert evidence. Legal principles 1. The legal principles in relation to joinder are well understood. Such applications are governed by s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'), which reflects the former s 39A of the Land and Environment Court Act 1979 (NSW). Section 8.15(2) provides: 8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act) … (2) On an appeal under this Division, 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 ('Morrison Design'), where his Honour stated at [42]-[43]: [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 39A… 1. At [57] of Morrison Design, in a passage relied upon by Al Maha, Preston J said: This is not a case where the Court would be deprived of meaningful assistance if the Owners Corporation were not be joined. Sometimes, by reason of agreement being reached between an applicant for development consent and the consent authority, there may be no meaningful contradictor and important issues that the Court needs to consider in order to give a proper and lawful decision, will not be available to the Court. 1. To similar effect, Preston J said in Avalon Beach Property Pty Limited ACN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council [2017] NSWLEC 130 ('Avalon Beach') at [10]: It is true that the Court can of its own volition raise any issue apart from the issues raised in the statements of facts and contentions by both the consent authority and an applicant to an appeal. However, for a contention such as the one raised by the neighbour as to the proper characterisation of the purpose of the development, the Court's consideration of that issue would be inadequate. It is necessary to have the party making the case that the proper characterisation of the development is one which would cause the development to be prohibited. If neither the applicant nor the consent authority is raising that contention, there will be no contradictor. The matter will simply be raised but the Court will have inadequate argument about the issue. There is no other way in which this issue can be properly put before the Court than allowing the joinder of the neighbour. 1. The principles in relation to joinder have been more recently considered by this Court in Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161 and M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101. Issues sought to be raised by Al Maha 1. Al Maha says that it wishes to raise the following issues which it says are not otherwise addressed, or not sufficiently addressed, in the Council's SOFAC: 1. In relation to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development ('SEPP 65'): 1. Setbacks on the western side from non-compliant storey seven should be seven metres according to Council's own planning expert Mr Giaprakas. In addition, units GF08, 1.11 and 2.09 should have been deleted but have not been; and 2. Object 4B-3 of the Apartment Design Guide ('ADG') requires at least 60% of apartments to be naturally cross-ventilated for the first nine storeys of a building. Only 24 of the 62 apartments appear to achieve natural cross-ventilation (or 38%); 1. Overshadowing impacts, including on Al Maha's land; 2. "Strathfield Triangle DCP and other planning issues" – Al Maha says there are numerous relevant provisions that have not been addressed by Council at all or that were raised but have been deleted in the revised SOFAC: 1. Control C.1, Part 3.5 – Setbacks of the Strathfield Triangle Development Control Plan ('STDCP'), which requires that the minimum building setbacks are to be provided in accordance with those shown in Map 3; 2. Control C.6, Part 3.5 – Setbacks of the STDCP, which requires the minimum upper level building setbacks are to be provided in accordance with those shown in Map 4; 3. Control C.4, Part 3.6 – Vehicular and Pedestrian Access of the STDCP, which notes that vehicle access points are to be provided generally in accordance with those identified in Map 6. Al Maha submits that the map indicates that the building access point should be positioned in alignment with the proposed laneway which runs parallel to Leicester Avenue, contrary to the DA; 4. Control C.3, Part 5.4.1 – Open Space and Landscape of the STDCP, which requires a minimum of 50% of the front setback area to be planted. Al Maha submits that the DA indicates non-compliance with this requirement; 5. Control C.1, Part 5.4.3 – Private Open Space and Landscape of the STDCP, which requires a minimum area of private open space at ground level of 25 square metres for each ground level dwelling. Al Maha submits that only one of the nine ground floor dwellings meets this threshold; 6. Control C.6, Part 5.4.3 – Private Open Space of the STDCP, which requires a minimum area for balconies of eight square metres. Al Maha submits that this control is not met by three apartments on level 1; 7. Control C.1, Part 5.6.4 – Through-site Links of the STDCP, which requires pedestrian access to be provided between Hilts Road and Leicester Avenue. Al Maha submits that where this is not possible, Huajun would need to propose and agree with Council on a suitable alternative; 8. Page 16 of the Canada Bay Development Contributions Plan indicates land that is required for dedication in lieu of development contributions. Al Maha says Map 3 indicates the requirement for a land dedication being 9.5 metres wide along the western boundary of the land to which the DA relates; and 9. Huajun's revised cl 4.6 objection does not deal with the issue that part of the proposed development has a height of 12.5 metres where the maximum building height at that point is 0 metres. 1. Clause 101 of the State Environmental Planning Policy (Infrastructure) 2007 ('Infrastructure SEPP') requires that, where practical, vehicular access to the land be provided by a road other than Leicester Avenue (it being a classified road). Al Maha is concerned that the cl 101 issue will not be properly or adequately addressed absent its joinder; 2. A new BASIX certificate is required as the removal of a 63rd unit suggests that the current proposed development differs in a material respect form the description contained in the current BASIX certificate. Al Maha says this is potentially a jurisdictional requirement, with reference to SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [15]; and 3. Access and property rights. Al Maha submits that it wishes to raise issues in relation to the impact and adequacy of access via Leicester Avenue and its specific impact on its property at 36 Leicester Avenue. 1. Al Maha submits that many of the issues it wishes to raise directly concern the impacts on its land. Evidence 1. Al Maha relies upon an affidavit of Maysaa Parrino, a solicitor acting for Al Maha, dated 26 November 2018, and tendered two folders comprising exhibits thereto. Ms Parrino affirms that Peter Giaprakas, a town planner retained by Council, expressed views in a joint town planning report filed in the proceedings dated 18 January 2018 to the effect that the then proposed development does not satisfy the requirements of SEPP 65; the proposed development will result in additional overshadowing impacts on adjoining private and public properties; and the proposed development does not comply with the STDCP and associated planning documents. 2. Further, while she notes that for the moment Council is pressing its contention that the proposed development fails to satisfy cl 101 of the Infrastructure SEPP, she deposes that the fact that Council has agreed to a one day hearing means that Council envisages a "consent orders" hearing on the basis that the contention will not be pressed. She opines that Council appears to be departing from the view of its own experts without explanation. 3. Ms Parrino also notes that RMS previously refused to grant concurrence to the proposed development when access was envisaged from Leicester Avenue and that in the absence of more recent correspondence between RMS and Council, whether RMS maintains that position is unknown. 4. Ms Parrino also notes Al Maha's concern that the existing BASIX certificate does not cover the development as it is now proposed and opines that in all of the circumstances she has outlined the interests of justice are served by Al Maha's joinder to the proceedings and a consequent vacation of the hearing date. Ms Parrino raises each of the issues noted at [16] above which she says should be but have not been sufficiently addressed and are not likely to be sufficiently addressed unless Al Maha is joined. 5. Huajun reads the affidavit of Peter Yong Sheng Chen affirmed 2 November 2018 which was also read in Huajun's application for expedition. Mr Chen deposes that he is a director and general manager of Huajun and gives evidence as to the background of the matter including details of the development application, original Class 1 proceedings, Huajun's reliance upon the development consent earlier granted, details of the proceedings in the Court of Appeal, the amended plans prepared subsequent to the CA decision, and costs involved in applications for construction tender documents. He also gives evidence of the fact that Huajun has spent approximately $13 million thus far on purchasing the subject land, obtaining development consent, and further costs in relation to preparation to start the works, and impacts of any further delay. Huajun also reads parts of the affidavits of Katherine Patricia Edwards affirmed 5 and 7 November 2018 and tenders an exhibit thereto comprising the plans which have been recently amended and pursuant to which the hearing will be conducted. 6. The affidavits of Ms Edwards detailed the amended plans for which leave has been granted. In addition, the Court received a letter of 13 February 2017 from Al Maha to the City of Canada Bay Council setting out six matters of concern responding to the original DA, and a further letter from Mr Giaprakas (senior town planner with Council). Submissions Al Maha's submissions 1. Al Maha submits that the proposed development involves "a litany of egregious breaches of the relevant planning controls", referring to the matters outlined above at [16]. It says that if it is not joined to the proceedings, those matters will not be addressed or will not be sufficiently addressed. 2. Further, Al Maha submits that the interests of justice favour the joinder because: 1. Al Maha is the owner of the neighbouring property and is directly affected by the issues which have not been raised or sufficiently addressed; 2. The parties (meaning Huajun and Council) have previously demonstrated that they have acted unlawfully in respect of the DA leading the Court astray in advancing a conciliation agreement which was defective by proposing development on Al Maha's land without its consent and further by seeking to remedy this default by way of r 36.17 of the UCPR; and 3. The conduct of Council reveals that it cannot be trusted to be a contradictor in the requisite sense. Al Maha says its conduct represents "a wholesale abandonment of its own planning controls, without any explanation and on numerous occasions contrary to the opinions of its own experts engaged for the purposes of the proceedings". 1. Al Maha submits that if it is joined to the proceedings, the dictates of procedural fairness require that the hearing not proceed on 5 December 2018. It submits that it requires sufficient time to adduce evidence in support of its opposition to the DA and advises that it proposes to call evidence from town planning and traffic experts. Al Maha submits that a short timetable ought to be prepared setting the matter down for hearing over two or three days. Council's submissions 1. Council neither consents to nor opposes the application for joinder. Mr Kondilios, who appeared for Council, advised that those matters articulated in its revised SOFAC dated 22 November 2018 (in respect of which Al Maha makes its complaints) were those which it intends to press at the hearing, but that Council does not consider that it will be a consent orders hearing and the matters about which it continues to harbour concern are independent grounds which would justify the refusal of the DA. Huajun's submissions 1. Huajun opposes Al Maha's application for joinder. It emphasises that even if the threshold matters required by s 8.15(2) of the EPA Act are met, the Court has residual discretion to determine whether or not the applicant for joinder should be joined to the proceedings: Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11 at [25]. 2. Huajun submits that Al Maha has failed to articulate any basis for joinder when regard is had to the fact that it has the opportunity to put its views to the Court as an objector. Huajun says that Al Maha has been afforded ample opportunity to be heard in relation to its objections and remains entitled to make written and oral submissions as an objector at the hearing. 3. On this basis, Huajun submits that there is "no need" for Al Maha's joinder. In this regard, it also refers to the decision of Sheahan J in Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 13 ('Newcastle Muslim Association'), particularly his Honour's comment at [20]: I have concluded that it is not necessary to make the order sought in this case in order for all EVCARES's concerns to be properly ventilated and considered at the hearing. I am satisfied that Council has demonstrated it has put the relevant concerns before the court. The capacity of the Commissioners and Judges who deal with such cases as this ought not be underestimated. It is common for the material before them to be more voluminous and detailed than that before the consent authority at the time of refusal. The test for the making of the orders under ss 38(2) or 39A requires something "special" or "additional" to be made available to the court only through such an order, and it has not been satisfied in this case. 1. In relation to the status of the proceedings, Huajun notes what Preston CJ of LEC, with whom Basten and Leeming JJA agreed, said at [282] of the CA decision: The effect of the Court setting aside the Commissioner's development consent decision and the slip rule decision and the development consent would be that the Commissioner would need to re-exercise the function under s 34(3) of the Court Act to decide whether or not to dispose of the proceedings in accordance with the parties' decision that had been reached in the s 34 agreement. If evidence of Al Maha's consent as owner to the application is not forthcoming, the Commissioner will be precluded from disposing of the proceedings in accordance with the parties' decision, as it is not a decision that the Commissioner can make in the proper exercise of the Court's function. If the circumstances do not otherwise change, such as Huajun seeking leave to amend its application for development consent to no longer carry out development on Al Maha's land or the parties' reaching agreement as to the terms of a different decision, the Commissioner would need to terminate the conciliation conference under s 34(4) of the Court Act. The hearing of the proceedings, which has been adjourned, could then continue. Accordingly, there is utility in this Court setting aside the Commissioner's decisions and the development consent. The Commissioner will not make the same decision or orders that the Commissioner made on 26 February 2018. 1. Huajun submits that the narrow compass of the present proceedings is a consequence of the fact that the only alterations which have been made to the DA are to simplify the proposal and address the concerns the Court of Appeal expressed at [282] of the CA decision. Further, the Court would accept that the earlier concerns expressed by Council have been addressed to Council's satisfaction. 2. In that regard, Huajun submits that Council has not simply "abandoned" the contentions it pressed in its original SOFAC but that certain matters have been resolved through the ordinary process of the DA's assessment. In that regard, it says Council has turned its mind to the provisions of the STDCP and satisfied itself that the relaxation of the guidelines is appropriate. 3. Huajun submits that there is no procedural requirement for Council to identify why it has narrowed its issues and says that such narrowing is common where the processes of the Court allow for the formal and informal conferral of witnesses. Further, Huajun submits that, whether or not Al Maha is joined to the proceedings, the Court is able to review such matters. 4. In relation to the specific complaints of Al Maha, Huajun submits: 1. In relation to SEPP 65, the DA is supported by professional statements and has been involved in a conclave process which, in any event, does not bind the Court. Moreover, Huajun "strongly asserts" that the DA complies with SEPP 65 and the ADG; 2. In relation to the height of the proposed development, it has not increased since the DA was lodged and has been considered by Council and its expert. Huajun submits there is "nothing exceptional" in Al Maha's submissions in this regard; 3. In relation to cl 101 of the Infrastructure SEPP, Al Maha has not identified a way in which it says access onto Leicester Avenue will affect its property and that it has been considered and will continue to be considered by the experts retained for Council and Huajun. Huajun further says that RMS has been provided with the amended plans and its comments consolidated into the revised SOFAC; 4. In relation to the BASIX certificate, Huajun commits to providing an updated BASIX certificate prior to the hearing but says that Al Maha's interests are not affected by this issue. 1. Huajun notes that Council is satisfied that the cl 4.6 objection request provided in respect of the DA is appropriate and justifies the breach of the relevant height development standard. It submits that the Court has complete discretion and all necessary powers to review the Council's position. 2. Huajun also submits that it has been put at great financial disadvantage by the protracted length of these proceedings. It notes that the Registrar granted expedition on this basis and calls in aid the overriding purpose of civil proceedings: the "just, quick and cheap resolution of the real issues in the proceedings" as mandated by s 56 of the Civil Procedure Act 2005 (NSW). It says to grant joinder and allow the vacation of the hearing date would not accord with the just, quick and cheap resolution of the matter. 3. In this regard, it notes that Al Maha wishes to call further expert evidence and that this will require the marshalling of expert evidence in response and a lengthening and delay of the hearing. 4. Moreover, Huajun says that its desire for the resolution of the matter does not necessarily mean a resolution in its favour. It says the hearing will not be a fait accompli and that it will be required to demonstrate to the satisfaction of the Court that the matters articulated by Al Maha do not present sufficient bases for the refusal of the DA. Al Maha's submissions in reply 1. Al Maha submits that there will be no further work required to be undertaken by Huajun's retained experts in the event that it is joined. It also observes that no limitations were imposed on the remitter of the case in the CA decision and that [282] of the judgment does not prevent it from being joined to the proceedings. 2. Al Maha notes that several contentions have been wholly deleted from the SOFAC in its latest form and that they relate to matters about which it harbours significant concern and which will directly affect it as an adjoining landowner. In those circumstances, it submits that it is appropriate it be joined to the proceedings. Consideration 1. In my view, Sheahan J's reference to something "special" or "additional" in Newcastle Muslim Association was merely his Honour's restatement in summary form of the statutory test. I do not understand his Honour to be saying that once the statutory test is met it is then necessary to find something special or additional in relation to the material sought to be raised by the party seeking joinder. The question is resolved by attention to the statutory text, whilst noting the Court retains residual discretion. 2. With that in mind, I consider that Huajun's submissions that Al Maha has not shown that its interests are sufficiently affected by the DA are beside the point. There is no statutory requirement that a party seeking joinder demonstrate that its interests will be affected by the matters its seeks to raise. Nor do I consider that it is helpful to consider whether the matters sought to be raised are "special" or "additional" insofar as these questions are asked in isolation from the statutory test. Newcastle Muslim Association is not authority for such an approach. 3. Further, I note that whilst Huajun is correct to submit that the Court is able to reach an independent state of satisfaction with respect to the cl 4.6 request (and indeed, as Preston J noted at [203] of the CA decision, the Court is required to reached an independent state of satisfaction), the correct question is whether there are any issues in that respect which are not likely to be sufficiently addressed absent joinder. As Preston J observed in Avalon Beach at [10], whilst the Court can raise issues of its own volition, it will be assisted by proper argument which requires a contradictor. 4. The legal principles in relation to joinder, as noted above, are well understood and do not require repetition. Despite this, it is clear that the "sting in the test" (to quote the words of Moore J in Suh v Liverpool City Council [2016] NSWLEC 25; (2016) 216 LGERA 84 at [35]) are the words "sufficiently addressed" in s 8.15(2)(a). This "test" is frequently considered when the application is founded upon issues which may already have been raised by the consent authority and on an application for joinder the applicant desires to supplement those issues. 5. Whilst I consider there is force in Huajun's submissions, having considered the evidence and received detailed submissions, I am of the view, albeit with some reluctance, that joinder should be ordered with the consequence that the hearing date set down for next week must be vacated. I will shortly state my reasons however before doing so, I note that I do not accept certain submissions made on behalf of Al Maha where there is a less than veiled criticism of the conduct of Council and Huajun in language that is more flamboyant than necessary. This includes a suggestion that there is a "litany of egregious breaches" of the relevant planning controls and reliance upon a suggestion that Council and Huajun acted "unlawfully" in relation to the earlier approval of the development application. I note this because whilst I accept that the Court of Appeal has properly found legal error in the manner in which the earlier conciliation decision was reached, it cannot be suggested, as Al Maha suggests, that Council's conduct to date "reveals that it simply cannot be trusted to be a proper contradictor in the requisite sense". 6. Accepting that Council neither consents nor opposes the joinder, I am conscious that the SOFAC dated 22 November 2018 amends significantly the earlier statement of facts and contentions dated 18 December 2017. The revised document, being in marked-up format, distinctly shows the significant amendments made to the earlier SOFAC. It is clear that the amendments were a result of amended plans which I assume went some way to addressing Council's concerns. Having considered the SOFAC, it appears the remaining matters of concern to Council are: 1. Vehicular access considered with respect to cl 101 of Infrastructure SEPP, the City of Canada Bay Local Environmental Plan, and the STDCP; 2. Exceedance of the maximum height of buildings development standard in Canada Bay Local Environmental Plan 2013 ('CLEP') and a concern that an amended written request pursuant to s 4.6 of the CLEP for dispensation in relation to development standard is required to address the revised plans; 3. Concern in relation to the re-notification of the more recently revised plans; and 4. Concerns regarding the access to the development generally, compliance with BCA and RMS requirements (seeking a revised traffic report) as well as concerns regarding onsite (and offsite) waste storage and management, stormwater management, and some civil engineering concerns. 1. In the circumstances of the amendment (and deletion of earlier contentions), Al Maha wishes to raise the matters referred to in par [16] above. Whilst I accept that Al Maha would in the ordinary course of events, be entitled to raise its concerns, and be heard, as an objector, I am of the view that in the unusual events that have occurred and the understandable speed with which the matter has more recently progressed, I am comfortably satisfied that some of the matters sought to be raised by Al Maha would not be sufficiently addressed if Al Maha was not joined as a party. I refer in particular to issues noted above in [16] (1), (2) and (3) only. 2. Thus, I am of the view that, given the unusual background to this matter, it is in the interests of justice that those issues that Al Maha wishes to raise which are confined to application of SEPP 65 (particularly in relation to setbacks, cross-ventilation and the like), matters regarding the effect upon Al Maha's land such as overshadowing and consideration of the STDCP controls, are ventilated. Further, I am of the view that this ought to be facilitated by Al Maha being joined to the proceedings. 3. Although it does not need to be said, I express no view in relation to the strength of the matters sought to be raised by Al Maha. I also note that a number of the issues and concerns which were previously raised by Mr Giaprakas in the joint planning report (highlighted in the evidence of Ms Parrino) were also the subject of expert comment (generally in favour to the proposal) by two other experts, Jon Johannsen and Dr Gary Shiels, in the joint town planning report. 4. Whilst it is unfortunate that Al Maha's success in the joinder application requires the vacation of the hearing date, I consider that the matter continues to be deserving of expedition. The ability of the Court to accommodate a relatively expeditious hearing either on 10 and 11 December 2018 or 24 and 25 January 2019, satisfies me that there is a proper balance between the interests of the parties. 5. In the circumstances, based upon the evidence and submissions, I am satisfied that Al Maha is an interested adjoining neighbour and in the circumstances of the history of the DA, is able (and entitled) to raise these discrete issues articulated above at [16] (1), (2) and (3) and that these issues should be considered in relation to the appeal but would not likely be sufficiently addressed if Al Maha were not joined as a party. As such, I find that it is in the interests of justice as well as the public interest that Al Maha be joined and that to the extent that inconvenience would be caused to Huajun (and possibly to Council), this can be met by a relatively expedited hearing with an appropriate timetable to be either agreed between the parties or ordered by the Court. 6. I also note that although Al Maha has already been afforded an opportunity to be heard in relation to its objections (and as noted above would be heard as an objector next week if it had not been successful in its application), I consider that the short time available between now and the hearing next week, even considering that Al Maha had some knowledge of the hearing date being allocated since 23 November 2018 (when the Registrar made the orders), does not amount to sufficient time properly to marshal evidence in support of its position. 7. For the reasons above, I made orders on 28 November 2018 joining Al Maha as a party and vacating the hearing on 5 December 2018. Orders 1. On 28 November 2018, the Court ordered that: 1. Pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW), Al Maha Pty Ltd is joined to the proceedings as a respondent in relation to the issues identified in my reasons for judgment which will be published tomorrow morning. 2. The hearing date of 5 December 2018 is vacated. 3. The matter is stood over for directions at 9.30am on 29 November 2018. 4. The parties are directed to prepare agreed Short Minutes of Order for the further preparation of the matter, allowing for a hearing date for two days on either 10 and 11 December 2018 or 24 and 25 January 2019. 5. If agreement is unable to be reached, orders will be made on 29 November 2018 accordingly. ********** 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: 30 November 2018