Land and Environment Court New South Wales Medium Neutral Citation: Ozone Cronulla Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1078 Hearing dates: 22 February 2019 Date of orders: 25 February 2019 Decision date: 25 February 2019 Jurisdiction: Class 1 Before: Froh R Decision: The Notice of Motion is dismissed. Catchwords: JOINDER: Application for joinder – Statutory tests Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802 Suh v Liverpool City Council [2016] NSWLEC 25 Category: Procedural and other rulings Parties: Ozone Cronulla Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Andrew Brien (Applicant on the motion for joinder) Representation: Counsel: T Hale SC (Applicant) J Farrell (Applicant on the motion for joinder) S Nash (Respondent) Solicitors: Mills Oakley (Applicant) BCP Lawyers & Consultants (Applicant on the motion for joinder) Sutherland Shire Council (Respondent) File Number(s): 2018/260778 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. Mr Andrew Brien, by Notice of Motion filed 13 February 2019, seeks to be joined as a respondent to Class 1 proceedings instituted by Ozone Cronulla Pty Limited (Ozone) in respect of the refusal of Sutherland Shire Council (Council) to a development application for 5, 7 and 9 Ozone Street, Cronulla, for the demolition of existing structures and the construction of a 9 storey residential flat building containing 30 apartments (the DA). 2. In the alternative to an order for joinder, Mr Brien seeks an order pursuant to s 38(2) of the Land and Environment Court Act 1979 (the Court Act) to participate in the hearing of the matter in the terms set out in the Notice of Motion, being: "to participate in the proceedings on contentions regarding view loss through the making of legal submissions and calling town planning evidence at the hearing, including through the participation of a town planner in any joint conference of experts in town planning that is the subject of directions made by the Court pursuant to r31.20 of the Uniform Civil Procedure Rule 2005" 1. The Motion is opposed by Ozone, the applicant in the substantive proceedings, and the Council neither consents to nor opposes the Motion. 2. The hearing is currently adjourned, and is listed for a third and final hearing day in two days' time on Wednesday, 27 February 2019. 3. The Court has power to make an order for joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). Section 8.15(2) states: 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. At the hearing of this Motion, Mr Brien submitted that he be joined on all bases, being that: 1. he is able to raise an issue that would not be adequately dealt with if I do not to make an order for joinder; and 2. it is in the interests of justice and the public interest. 1. The questions for my consideration are, firstly, whether there is any issue identified by the applicant for joinder that ought to be raised in the proceedings that would not be adequately dealt with if I was not to make an order for joinder. The second question in this case is whether it is in the interests of justice or the public interest that I make an order for joinder. The third question concerns whether, if I am satisfied that any one of the limbs within s 8.15(2) has been satisfied, I ought to exercise my discretion in favour of making the order for joinder. First Limb 1. Although Council has adopted a neutral position in respect of this Notice of Motion, the difference between the Council's contentions and the evidence proposed to be led by Mr Brien is required to be considered as part of the first test under s 8.15(2) of the EPA Act. 2. The Council's Amended Statement of Facts and Contentions state at Contention 4: "The application has not properly considered the impact of view loss on neighbouring development and has not demonstrated a correct application of the Tenacity view sharing principles, which are adopted in Council's planning controls. Particulars The view loss assessment provided does not consider the proposal's impacts to existing view corridors from the nearby residential buildings such as: "Breeze" at 19 Gerrale Street or "The Begrave" at 31-33 Gerrale Street." 1. If Mr Brien's application for joinder was successful, the contention he proposes to raise is: "The proposed development should be refused, because it involves a severe or devastating loss of highly valuable water views from the units in 19- 21 Gerrale Street, Cronulla including Unit 603, and a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours." 1. Counsel for Mr Brien submitted that the contention he proposes differs from that before the Court as it is expressed as a reason for refusal and not as an insufficient information contention. 2. It was also submitted to me that the height of the proposed development and other nearby developments have not been accurately depicted in the material before the Court. As such, the height of these developments and the degree of impact on Mr Brien's views in respect of the horizon line is uncertain. Counsel for Mr Brien submitted that this may lead the Commissioner into an error of fact. 3. In respect of Mr Brien's proposed contention, Counsel for Ozone submitted that the contention proposed to be raised by Mr Brien has already been raised by the Council in its Amended Statement of Facts and Contentions and have been sufficiently addressed in the Council's Development Assessment Report and the joint report filed by the two town planning experts. Counsel for Ozone further submits that the specific issues proposed to be raised by Mr Brien have already been raised by Mr Brien through the DA process and that both Mr Brien and Mr Brien's town planner have each had the opportunity to separately make submissions to the Court at the onsite view of the hearing, including raising issues about view loss and the horizon line. 4. The first limb of the test for joinder is whether the issues proposed to be raised by the party seeking joinder are sufficiently addressed. 5. In respect of Mr Brien's proposed contention, I consider this contention to be squarely within the Council's Amended Statement of Facts and Contentions regarding view loss. 6. The test for joinder is not whether the issues are expressed or being argued in the way and manner the applicant for joinder would like, but whether the issues are sufficiently addressed. 7. Based on the evidence currently before me and the Amended Statement of Facts and Contention filed in these proceedings, I am satisfied that Mr Brien's proposed contention is before the Court and capable of being sufficiently addressed. 8. In light of this, I do not find that the test for the first limb has been satisfied. Second Limb 1. Mr Brien also relies upon the second test for joinder, being the interests of justice or public interest to support his joinder application. To this end, the applicant for joinder relies on the decision of Moore J in Suh v Liverpool City Council [2016] NSWLEC 25 ('Suh'). 2. In that case, Moore J observed: "I have always understood that this limb, in effect, potentially provided a vehicle for joinder in circumstances where a development proposal was likely to have a significant impact on the specific circumstances of the party seeking joinder. Instances of this nature might arise, for instance, when questions of view analysis, view-sharing and general matters discussed by then Senior Commissioner Roseth in the planning principle in Tenacity Consulting v Warringah [2004] NSWLEC 140 were to be engaged." 1. In respect to the interests of justice and public interest, Ozone's Counsel relied on Preston CJ's observations in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802 at [48]-[54], and submitted that it is not necessary to join Mr Brien to the proceedings as Mr Brien has been given numerous, meaningful opportunities to be heard through the DA process and throughout these proceedings. 2. Furthermore, Ozone's Counsel submits that as there has been adequate opportunity for Mr Brien to make objections, and that those objections have been addressed by Council and, accordingly, can be addressed by the Court. It is not in the interests of justice or the public interest to join Mr Brien to these proceedings so he can continue to make those objections. 3. Although the case of Suh may appear to provide clear grounds for the joinder of Mr Brien to the proceedings, I am of the view that as Mr Brien has been afforded a number of opportunities to put his views to the Council and the Court. 4. Indeed Mr Brien's concerns have been sufficiently addressed by the Council in its Amended Statement of Facts and Contentions and in the filed joint town planning report. Furthermore, throughout the hearing of this matter Mr Brien and his town planner have also been given the opportunity to make submissions to the Court about view loss and the accuracy of the material before the Court. 5. As such, given the involvement of Mr Brien in the proceedings and the DA process to date, I am not satisfied that it is in the interests of justice or the public interest to join Mr Brien. 6. Accordingly, the test for joinder fails. Is a Double Bay Marina order is appropriate? 1. As I have determined that it is not appropriate for an order for joinder to be made, I am required to consider a final question concerning whether it is appropriate for an order to be made pursuant to s 38(2) of the Court Act, allowing Mr Brien to participate in the proceedings in some limited manner. 2. I am not satisfied that there are any issues in these proceedings that are not likely to be sufficiently addressed in the absence of some special order being made for Mr Brien's involvement in the proceedings. 3. In these circumstances, I am not satisfied that it is appropriate to make an order under s 38(2) of the Court Act. 4. For the above reasons, this is a not a proper case to order the joinder of Mr Brien as a party to the proceedings or to make an order under s 38(2) of the Court Act. Orders 1. The Notice of Motion is dismissed. ……………………………… S Froh Registrar of the Court ********** 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: 27 February 2019