Land and Environment Court New South Wales Medium Neutral Citation: Rod Zoabi t/a ZTA Architects v Georges River Council [2019] NSWLEC 1106 Hearing dates: 12 March 2019 Date of orders: 12 March 2019 Decision date: 12 March 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 Category: Procedural and other rulings Parties: Rod Zoabi t/a ZTA Architects (Applicant) Georges River Council (Respondent) Louie Saravinovski (Applicant on the motion for joinder) Representation: Counsel: L Beange (Applicant on the motion for joinder) Solicitors: S Shneider, Houston Dearn O'Connor (Applicant) A Berry, Georges River Council (Respondent) File Number(s): 2018/234703 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. REGISTRAR: Mr Louie Saravinovski, by Notice of Motion filed 7 March 2019, seeks to be joined as a respondent to Class 1 proceedings instituted by Rod Zoabi t/as ZTA Architects (Mr Zoabi) in respect of the refusal of Georges River Council (Council) to a development application for 7 Wharf Road, Kogarah Bay for an attached dual occupancy (the DA). 2. In the alternative to an order for joinder, Mr Saravinovski seeks an order pursuant to s 38(2) of the Land and Environment Court Act 1979 (the Court Act) for a Double Bay Marina order and be permitted to participate in the s34AA conciliation and hearing. 3. The Motion is opposed by Mr Zoabi, the applicant in the substantive proceedings, and the Council neither consents to, nor opposes the Motion. 4. The s34AA conciliation and hearing is listed to commence on site tomorrow on Wednesday, 13 March 2019 at 9.30am. 5. 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 Saravinovski submitted that he be joined on the basis 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. 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 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. Mr Saravinovski has not provided a written outline of the contentions he would propose to raise if his application for joinder was successful, but his Counsel has made submissions this afternoon outlining that the contentions Mr Saravinovski proposes to raise and lead evidence on. These proposed contentions are as follows: 1. The validity of the survey plan provided to Council as part of the DA; 2. The adequacy of the BASIX commitments; 3. The adequacy of the concept stormwater plan; and 4. The impact on his views. 1. Council has adopted a neutral position in respect of this Notice of Motion, but has made submissions to the Court this afternoon confirming that it will seek to tender the email between Mr Saravinovski and Mr Estephan dated 11 March 2019 and tendered as an exhibit in the hearing of this Motion and marked "C". This email concerns the survey plan that has been provided to the Council as part of the DA. As that email will be before the Court, it will open to the Commissioner to make findings on that issue, I also note as well that the Council has raised contentions regarding the surveying of the site of the proposed development at Contention 12(a), (b), (c) and (d). As such, I consider this issue capable of being sufficiently addressed and I make no further findings on it. 2. With regards to the adequacy of the BASIX Commitments, BASIX commitments are listed in a BASIX certificate and the Council has raised the Applicant's compliance with BASIX at Contention 9 of its Statement of Facts and Contentions (SOFC) and also as an insufficient information contention at Contention 12(k). As such, I consider the adequacy of the BASIX commitments to be an issue before the Court and capable of being sufficiently addressed. 3. With regards to the adequacy of the concept stormwater plan, the Council has raised this as a concern at Contention 11 of its SOFC and also as an insufficient information contention at Contention 12(l). As such I consider the adequacy of the concept stormwater plan to be an issue before the Court and capable of being sufficiently addressed. 4. With regards to the impact of the DA on Mr Saravinovski's views, the SOFC does raise the inappropriate bulk and scale with resultant amenity impacts to neighbouring properties. The SOFC also specifically identifies the impacts of the proposed development on Mr Saravinovski's property, including contending that "an imposing largely three storey built form that will be unacceptably dominant for the neighbour to the north" (being Mr Saravinovski's property). The privacy impacts of the proposed development on Mr Saravinovski's property are also articulated. It is also contended by Council that the proposal's site and rear setbacks do not "respond to site features and cross views of neighbouring properties" at Contention 4(e)(ii). As such, I consider this contention squarely before the Court and capable of being sufficiently addressed. 5. The first limb of the test for joinder is whether the issues proposed to be raised by the party seeking joinder are sufficiently addressed. 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 SOFC filed in these proceedings, I am satisfied that Mr Saravinovski's proposed contentions are 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 Saravinovski also relies upon the second test for joinder, being the interests of justice to support his joinder application. 2. In respect to the interests of justice, Mr Zoabi's solicitor 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 Saravinovski to the proceedings as Mr Saravonovski has been given numerous, meaningful opportunities to be heard through the DA process and has made submissions to Council objecting to the proposed development and that these submissions are before the Court, having been included in Council's bundle. 3. As an objector to the development, Mr Saravinovski will continue to be afforded that opportunity at the conciliation and hearing by being able to make submissions to the presiding Commissioner, outlining his objections on the matters he wishes to raise. 4. Given the involvement of Mr Saravinovski in the DA process to date and the opportunity he will have to put his concerns before the Court, I am not satisfied that it is in the interests of justice for him to be joined. 5. 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 Saravinovski 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 Saravinovski'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 Saravinovski 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: 19 March 2019