Ali v Liverpool City Council

Land and Environment Court (NSW)|2009-06-26|Before: Pepper J, Mr J, Mr P

CITATION : Ali v Liverpool City Council [2009] NSWLEC 107 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Ashraf Ali PARTIES : RESPONDENT Liverpool City Council

KEY ISSUES: PRACTICE AND PROCEDURE :- joinder - Double Bay Marina order - whether appropriate for intervenor to be joined to proceedings to raise issues that would not otherwise be raised on consent orders hearing - absence of contradictor before the Court - application granted

Environment Planning and Assessment Act 1979 ss 79C and 123 Land and Environment Court Act 1979 ss 38(2) and 39A Civil Procedure Act 2005 s 56 LEGISLATION CITED: State Environment Planning Policy (Infrastructure) 2007 Sydney Regional Environment Plan No 20 - Hawkesbury - Nepean River (No 2) 1997 Liverpool Local Environment Plan 1997 Liverpool Local Environment Plan 2008

Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293 CASES CITED: Metricon Qld Pty Ltd v Tweed Shire Council [2008] NSWLEC 283 Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) 151 LGERA 394 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361 Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226 The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94

APPLICANT Mr J Ayling SC SOLICITORS HWL Ebsworth Lawyers

RESPONDENT LEGAL REPRESENTATIVES: Mr P Marincowitz (solicitor) SOLICITORS DLA Phillips Fox

INTERVENOR Mr C Leggat SC with Mr N Eastman SOLICITORS CA Legal

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

HER HONOUR : The Application 1 This is an application by way of notice of motion filed in Court on 24 June 2009, by the Federation of Hellenic Associations Limited ("the Intervenor") for an order pursuant to the Court's general power to make a 'Double Bay Marina' order under s 38(2) of the Land and Environment Court Act 1979 ("the LEC Act") (see Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314-315) in relation to Class 1 proceedings currently before the Court.

2 An order granting short service of the motion was made by the Court on 24 June 2009.

3 Originally the application was for the Intervenor to be joined as a party to the Class 1 proceedings pursuant to s 39A of the LEC Act and in the alternative, for a 'Double Bay Marina order' to be made, however, the former order was abandoned by the Intervenor at the commencement of the hearing of the motion.

4 Section 38(2) of the LEC Act states: In proceedings in Class 1…the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. 5 The Intervenor seeks an order permitting it to give evidence and make submissions as to the economic and planning impacts associated with the proposed development the subject of the Class 1 proceedings. 6 The application has been brought with a degree of urgency because the proceedings are listed for a consent orders hearing on site on 30 June 2009 before a Commissioner. 7 In support of the application the Intervenor read the affidavits of Mr Peter Souleles, sworn 24 June 2009 and Mr Ian Sinclair, sworn 24 June 2009. Mr Peter Souleles is the President of the Panarcadian Association of New South Wales and acts on behalf of the Intervenor. Mr Ian Sinclair is an experienced town planner and the principal consultant with Edge Land Planning. He is the expert engaged by the Intervenor. 8 The principal parties to the proceedings are Mr Ashraf Ali, as applicant ("the Applicant") and Liverpool City Council, as respondent ("the Council"). The proceedings have been commenced under s 97 of the Environment Planning and Assessment Act 1979 ("the EPAA"). 9 The proposed contentions of the Intervenor as set out in its Statement of Contentions (Ex A) are four-fold, viz: (a) the proposed development is not consistent with the objectives of the Rural 1(b) Zone in the Liverpool Local Environment Plan 1997 ;

(b) the proposed development is not consistent with the objectives of the Zone RU4 rural small holdings in the Liverpool Local Environment Plan 2008 ("the 2008 Plan");

(d) the proposed development is not consistent with the objective for agricultural development set out in cl 6(8) in the Sydney Regional Environment Plan No 20 - Hawkesbury - Nepean River (No 2) 1997 in that it does not give priority to agricultural development and does not sustain the long term agricultural use of the site and area. 10 The application is not opposed by the Council or the Applicant.

11 The Council read an affidavit of Mr Peter Marincowitz, the solicitor employed by the Council, sworn 25 June 2009, to the effect that while the Council could meet the Intervenor's proposed contentions 1, 2, and 4, it could not meet proposed contention number 3 at the consent orders hearing on 30 June 2009.

12 The parties and the Intervenor therefore submitted that the best course for the Court to follow was to make the 'Double Bay Marina' order sought, vacate the hearing date for the consent orders and relist the matter before the Registrar for consequential orders. The estimate of any future hearing was two to three days. Factual Background

13 The factual background to this application is set out in the affidavit of Mr Sousleles. It is largely not in dispute.

14 The Intervenor owns a parcel of vacant land having an area of 41.30 ha which was purchased by it on or about 27 July 1997 in Gurners Avenue, Kemps Creek.

15 On or about June 2008 the owners of the property located nearby in Gurners Avenue ("the proposed development site") lodged a development application ("the DA") with the Council for the construction of an education facility. The DA was for the staged development of an educational establishment consisting of a primary school (360 students) and a high school (240 students) with associated facilities including car parking, library, multi purpose hall and sporting fields. 16 The Council originally rejected the DA and the owners of the proposed development site subsequently lodged an appeal to this Court. After the appeal was lodged, the Council, however, changed its mind.

17 Mr Souleles states in his affidavit that the surrounding lands comprise rural and residential properties, various poultry farms - including a poultry farm located approximately 250 m from the proposed development site, various market gardens located in reasonably close proximity to the proposed development site and an electricity substation located at the entry point of the Intervenor's land. 18 Mr Souleles states that the Council advised the Intervenor of the DA on or about 31 July 2008, and approximately a month later on 21 August 2008, the President of the Intervenor wrote to the Council outlining its objections to the DA. 19 On 4 September 2008, a meeting was held with the Council and objections were again put forward by the Intervenor in respect of the proposed development site. The objections primarily concerned: (a) the limited access to the Federation's property;

(b) that local infrastructure would be affected if the proposed development were to proceed; and

(c) the increase in traffic in the area as a result of the number of students and staff attending the school. 20 On or about 4 June 2009, Mr Souleles received a letter from the Council dated 2 June 2009. The letter was the first notification to the Intervenor that the Council now approved the proposed development. In the letter, the solicitors for the Council stated that the reasons for the Council's reversal of its opposition to the DA were three-fold, namely, that: (a) it had taken into account the 2008 LEP under which the proposed development was prohibited in circumstances where the 2008 LEP had a saving provision which applied to the relevant DA, the effect of which was that the proposed development was in fact permissible;

(b) shortly after the application was refused by the Council, the State Environment Planning Policy (Infrastructure) 2007 was amended to permit private schools in the zone in which the proposed school was to be located; and

(c) "the merits of the application". 21 A meeting was convened on or about 10 June 2009 to discuss the letter received from Council. At the meeting it was agreed that the Intervenor would continue to raise its objections to the DA. The Intervenor sought legal advice in respect of its concerns on or about 11 June 2009. The Intervenor then engaged the services of an expert, Mr Sinclair, to undertake a site inspection of the proposed development and to provide it with a town planning report. The purpose of the report was to enable the Intervenor to provide information in respect of its objections to the DA to the Council. 22 In the meantime, Mr Souleles attended the Council on 15 June 2009 to request access to the Council's file concerning information about the DA. Immediate access was not granted by the Council. On 17 June 2009, Mr Souleles together with Mr Ian Sinclair again attended the Council seeking access to the file. Again none was given by Council. On 18 June 2009, Mr Souleles instructed a solicitor to deal with the Council in relation to the Intervenor's attempts to obtain access to documentation. 23 On 19 June 2009, Mr Souleles yet again attended the Council together with his legal representative and Mr Sinclair. On this occasion, however, access to the file was granted and copies of documents located in the file were requested.

24 There then appears to have been a delay in the provision of the copies requested. Mr Souleles contacted the Council on 24 June 2009 and spoke to Mr Ian Lacey of the Council who told him, "I am not aware where they [the copies] are, if they have been done or whether they have been done and I will call you back". 25 On 23 June 2009, Mr Sinclair provided the Intervenor with his report in respect of the impact of the proposed development on the surrounding properties. As a consequence of the receipt of this report, Mr Souleles instructed the Intervenor's legal representatives to make an application to join it as a party to the proceedings as the Intervenor believed that it had sufficient grounds to oppose the DA. 26 In his report prepared for the Intervenor dated June 2009 entitled Report on Investigations into Liverpool Council DA 492/208 - Educational Establishment 600 Students Primary and High School and Associated Facilities…Gurner Avenue, Austral, Mr Sinclair stated that the Intervenor was concerned about the impact that the proposed school would have on future development plans the Intervenor had for their property.

27 Mr Sinclair noted that the Austral area had traditionally been an agricultural area containing market gardens and poultry farms. This was evident today with a market garden adjacent to the proposed development site and a poultry farm consisting of six sheds approximately 250 m from the proposed development site on the southern side of Gurner Avenue. In addition, there were existing rural residential areas. 28 The essential issues raised by Mr Sinclair in his report were that: (a) the pollution laws in New South Wales were "not for intensive agricultural use and if a complaint is made about the agricultural use the Council can require the use to cease or reduce the impact";

(b) the assessment report by the Council acknowledged that there were market gardens in the immediate locality but failed to note their distance (135 m and 100 m) from the proposed development site and failed to note the presence of a large poultry farm 250 m away. With respect to the latter, the New South Wales Meat Chicken Farming Guidelines refered to the need to separate poultry farms from sensitive land use and the Council's Living and Working in Rural Areas document recommended a 100 m separation distance from poultry farms and schools;

(c) there were a number of agricultural uses in the area and a more accurate description of the land than that given by the Council of "predominantly rural residential" ought to be "a mixture of agricultural and rural residential uses";

(d) it was therefore necessary for the Council to assess the impact of the proposed use on the surrounding agricultural uses, which it had not done;

(e) the assessment report advised the Council of the objectives of the zone but provided "scant assessment" of how the proposal satisfied these objectives;

(f) the assessment report did not provide adequate information on how the DA met the objectives of the zone given that the objectives clearly stated that agriculture was a significant use in the locality;

(g) the assessment report did not assess how the proposed development was consistent with the objectives, and in particular, how a proposed school would help to protect agriculture in the area when it was anticipated that the school would conflict with the agriculture in the area;

(h) the regional context for surrounding uses of the land had not been taken into consideration. That agriculture was a significant use in the zone should have been addressed in the report and had not been;

(i) the assessment report assumed that the area would be urban in the future, and therefore, there was no need to consider the existing agricultural uses, however, the area was not likely to be developed for at least a decade because of the need to construct two major sewerage pumping stations as well as the fragmented nature of ownership of the land. There was, therefore, a need to ensure that the current uses were able to operate without land use conflict being exacerbated;

(j) it was doubtful that a school would be compatible with an industrial/employment zone; and

(k) detailed local planning had not been undertaken for the precinct and thus the approval of the school in the area was premature. 29 In short, Mr Sinclair stated that the inadequate nature of the assessment report that the Council had relied upon to make its original determination could ground an appeal under ss 79C and/or 123 of the EPAA. Mr Sinclair accordingly recommended that the Intervenor: …get the commissioner to delay any determination on the application until the court has had the sufficient time to properly hear submissions dealing with the proper assessment of the DA prior to determination… if the court relies on information provided by the Council in its assessment of the application it would not be carrying out a proper assessment that looks at all of the impacts of the proposed development on the surrounding land and considers the full extent of the relevant EPIs that apply to the land.

The Principles Applicable to Joinder 30 The applicable principles in relation to joinder applications in Class 1 proceedings have been stated in a number of decisions of this Court, albeit primarily in the context of applications under s 39A of the LEC Act. However, as was stated by Jagot J in Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 (at [5]): While s 38(2) is not similarly constrained, the types of consideration that are set out in s 39A no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order.

31 In Metricon Qld Pty Ltd v Tweed Shire Council [2008] NSWLEC 283 Sheahan J conveniently set out the legal principles to be applied in an application of this nature (at [23]-[24]). For the sake of efficiency his Honour's work is repeated here: 23 In Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSLWEC 205 ("Bongiorno"), Jagot J dealt with a joinder application in "shopping centre" circumstances different from those in the present case but, as usual, her Honour concisely summarised the relevant principles to be applied (at [5], [6] and [9]): 5 Under s 39A of the Land and Environment Court Act , the Court may only exercise the power to join a person as a party to these proceedings if it forms an opinion either 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 that it is in the interests of justice or the public interest that the person be joined as a party to the appeal. While s 38(2) is not similarly constrained, the types of consideration that are set out in s 39A no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order. 6 I should also say, consistent with the observation of Lloyd J in Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226, the mere fact that the Court forms an opinion within the meaning of s 39A is not sufficient. The Court retains a discretion as to whether or not an order for joinder should be made and would take into account such matters as the delay in the application, the likely strength of the issues sought to be raised and any other issue of potential prejudice in the proceedings…. 9 I accept that there are concerns about a multiplicity of parties being involved in proceedings. It is not the case that s 39A or indeed s 38(2) of the Land and Environment Court Act were intended to encourage a multiplicity of parties in circumstances where the Court could be satisfied that the relevant issues would otherwise be appropriately and sufficiently ventilated in proceedings between the applicant for consent and the relevant consent authority. Accordingly, it is necessary to weigh up this consideration about multiple parties, although it seems to me that this concern is more relevant in the second step under s 39A, namely the exercise of discretion (rather than the first step, at least insofar as subs (a) is concerned, about whether the person can raise an issue that should be considered but would not be likely to be sufficiently addressed). 24 Her Honour formed the opinion envisaged by s 39A(a), and then turned her attention to discretionary considerations, which she listed (in [11]) as: · the context in which the application is brought by Ritchies Stores to which I have already referred; · the limited nature of the issue on which Ritchies Stores seeks to call evidence and be heard; · the capacity through case management to ensure that there is not inappropriate duplication between Ritchies Stores' evidence and that of the Council insofar as the Council's evidence goes; and · the fact that the application has been brought in a timely manner to enable those case management procedures to be effectively implemented.

32 To the above should be added the following: (a) the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think sufficiently important does not automatically warrant an order for joinder under ss 39A or 38(2) of the LEC Act ( Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293 at [36] and The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 at [14]);

(b) not only is a multiplicity of parties to proceedings undesirable, so too is a multiplicity of experts. Both undermine the efficient conduct of litigation and practice of the Court ( Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 at [15]); and

(c) it is not sufficient for an applicant merely to establish the matters contained in s 39A or s 38(2) of the LEC Act, the Court must also consider the nature of the issues which an applicant for joinder seeks to raise in the context of the overriding objective of the "just, quick and cheap" resolution of the proceedings (see s 56 of the Civil Procedure Act ("CPA"), Azzure-Blacktown at [16] and Sabian at [14]).

33 The Intervenor argued that the orders it sought ought to be made for the following general reasons: (a) first, because it wished to put before the Court "significant" evidential and legal issues that would not otherwise be agitated by the parties to the proceedings;

(b) second, that even if it could agitate some or all of these "significant" issues at the consent orders hearing on 30 June 2009, this would have the practical effect of the matter not concluding within the allocated hearing time of one day; and

(c) third, that the most important element in the overriding purpose provision of s 56 of the UCPA was that of the need to be "just" and justice in the present case compelled joinder of the Intervenor so as to ensure that the Court made the correct order.

34 The following specific reasons were given by the Intervenor in the context of the proposed statement of contentions: (a) first, in relation to proposed contention 1 - the Council had neither properly, or at all, considered the impact of the poultry farms on the proposed development nor whether the proposed development would be consistent with the objectives of the zone as set out in the 2008 LEP. This would necessitate expert evidence and legal submissions being advanced by both the Council and the Intervenor in order to meaningfully assist the Court;

(b) second, in relation to proposed contention 2 - the Intervenor stated that because, in its view, the Council had failed pursuant to s 79C(1)(e) of the EPAA to have regard to the public interest in its consideration of the objectives of the zone contained in the 2008 LEP, the Court would have no contradictor to the Council's foreshadowed argument that such interest was in fact considered. Therefore, the Intervenor would seek to put submissions both as to law and fact on the zone objectives of the 2008 LEP;

(c) third, in relation to proposed contention 3 - expert evidence was required from both the Council and the Intervenor as to whether the proposed development would create an unacceptable economic impact in the locality, particularly with respect to the impact on the operation of the poultry farms; and

(d) fourth, in relation to proposed contention 4 - the Intervenor submitted that Council had failed to take into account mandatory considerations contained in the Sydney Regional Environment Plan No 20 - Hawkesbury-Nepean River (No 2) 1997 , and moreover, was not proposing to put this instrument before the Court at the consent orders hearing. Again the Intervenor emphasised that if it were not permitted to adduce evidence and put submissions to the Court on this issue, there would be no contradictor before the Court to assist it in this regard.

35 Both the Council and the Applicant, while not accepting the correctness of the Intervenor's submissions for the purpose of any ultimate consent orders hearing, nevertheless adopted them for the purpose of the joinder application. In addition both parties submitted that: (a) it was only as early as 24 June 2009 that they were apprised of the matters raised by the Intervenor in its proposed statement of contentions;

(b) the contentions raised by the Intervenor were both "significant" and "complex". For example, if the proposed development was not consistent with the objectives of the zone as alleged, then this would need to be carefully considered by the Council;

(c) expert evidence would be needed to meet some of the contentions raised. For example, in relation to the intersection between the proposed development and the poultry farms, an odour expert would need to be engaged by the Council; and

(d) even if the order were not made and the Intervenor put the contentions to the Court as an objector, the matter could not in any event conceivably conclude in one day.

36 Notwithstanding that the vacation of hearing dates, particularly at such a late stage, should be, wherever possible, avoided given the overriding purpose set out in s 56 of the CPA, I am nevertheless persuaded that the orders sought ought to be made for the reasons given below.

37 First, I find of considerable moment the fact that all three parties before me on the motion concurred that the contentions raised by the Intervenor were of real substance and merited further consideration. Having heard the submissions of the parties on this point, I agree.

38 Second, no criticism can be (nor was) made of the Intervenor in bringing this application at such a late stage. The evidence demonstrates that the Intervenor acted in a reasonably timely fashion in attempting to obtain documents from the Council and in engaging an expert in order to assess if this application was warranted.

39 Third, the Council and the Applicant stated that they would, in effect, be prejudiced by the raising some of these contentions at the consent orders hearing as they required expert evidence to meet them.

40 Fourth, while I endorse existing statements of the Court that a multiplicity of parties and experts is undesirable, in the present proceeding, in relation to many of the proposed contentions I agree that because of the substantive nature of the contentions raised by the Intervenor, the Council will not be able to properly fulfil the role of contradictor and thereby provide meaningful assistance to the Court (see Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) 151 LGERA 394 at [8]-[9]). Furthermore, there are presently no experts before the Court in circumstances where, at least on the issue of the economic impact of the proposed development on the poultry farms, for example, it would, in my view, be desirable for the Court to have this assistance.

41 The words of Preston CJ in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361 are presently apposite. In that case his Honour noted (at [57]) that: 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.

42 Fifth, because on any view it is unlikely, in light of the matters that the Intervenor seeks to agitate, that the consent orders hearing will conclude in a day, further case management procedures would, in any event, be necessary and the vacation of the hearing date will not therefore cause any additional material procedural inefficiencies in the finalisation of the proceedings.

43 Taking all of these considerations into account, I am therefore satisfied that it is an appropriate exercise of the Court's discretion for the consent orders hearing to be vacated and for a 'Double Bay Marina' order to be made in relation to the participation of the Federation of Hellenic Associations Limited in the proceedings.

44 Accordingly, I grant leave pursuant to s 38(2) of the LEC Act to the Intervenor to adduce evidence and make submissions as to the economic and planning impacts associated with the proposed development the subject of the proceedings.

45 The orders of the Court are that: (a) leave be granted pursuant to s 38(2) of the LEC Act to the Federation of Hellenic Associations Limited to adduce evidence and make submissions as to the economic and planning impacts associated with the proposed development the subject of the proceedings;

(b) the consent orders hearing date listed on 30 June 2009 be vacated;

(d) the exhibits be returned, except Ex A which will remain on the file.

17/08/2009 - Legislation reference error - Paragraph(s) Cover sheet - legislation, paras 32c and 36

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(2003) 127 LGERA 293

(2007) 151 LGERA 394

(2007) 159 LGERA 361

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