This is an application by a next door neighbour to be joined as a party to an appeal in class 1 of the Court's jurisdiction against the refusal of a development application for a childcare centre. The appeal has been with the Court for some time. The original proposal the subject of the appeal was for a larger childcare centre, both in terms of built form and in terms of the number of children that were to be accommodated in the childcare centre.
There has been a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) in respect of that original proposal. Although agreement was not reached at the conciliation conference and it was terminated, the applicant resolved to amend the proposal in a number of aspects: first, to reduce the built form, particularly the number of levels; second, to reduce the number of children to be catered at the childcare centre; and third, to change the nature of the care to be provided to the children. It is that third aspect of change that has prompted the neighbour to apply to be joined to the proceedings.
The neighbour moves under s 39A of the Court Act. That provision gives the Court power to join a person to proceedings in certain circumstances. The first is if 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 (s39A(a)). The second is if it is in the interests of justice or it is in the public interest that the person be joined as a party to the appeal (s 39A(b)).
The neighbour contends that both limbs of s 39A are engaged in the circumstances of the case. The neighbour seeks to raise five issues, one legal issue and four merit issues. The legal issue is concerned with the characterisation and hence permissibility of the proposed childcare centre. This issue, which I will explain shortly, has not been raised by the Northern Beaches Council (the Council) in its amended statement of facts and contentions that it filed in response to the amendment to the proposed development by the applicant.
The characterisation question is as follows. In the relevant zone R2 Low Density Residential, under Pittwater Local Environmental Plan 2014, certain nominated uses are permitted with consent. Amongst the nominated uses permitted with consent are centre-based childcare facilities as well as health consulting rooms. The land use table for the R2 zone prohibits development that is not specified as being permitted with consent or that is permitted without consent.
The neighbour contends that the changes in the way in which the centre is to be run cause the proposed development to no longer be characterised as being for a childcare centre, but rather for a medical centre or a health services facility. Either purpose of use would be prohibited, not being a use specified as being permitted with or without consent. Alternatively, the neighbour contends that if it is possible to characterise the proposed development still as being for a childcare centre, it should also be characterised as being for an independent purpose, such as medical centre or health services facility. In this circumstance too, the proposed development would be prohibited. It matters not that one of the purposes for which the development would be carried out is permissible, if another of the purposes for which the development is carried out is prohibited; the development would still be prohibited.
As I said, this characterisation issue has not been raised by the Council. The neighbour submits that it is an issue that should be considered in relation to the appeal. The neighbour submits that unless he is joined to the appeal, the issue would neither be raised by the existing parties nor considered by the Court.
The applicant for development consent submits that it would not be necessary for the Court to join the neighbour in order for the Court to consider that issue. The applicant submits that the neighbour's contention that the development is prohibited is contained in various submissions that the neighbour has made to the Council. In the usual course, the Council would prepare a bundle of documents which would be tendered at the hearing of the appeal. That bundle of documents would include all submissions, including submissions made by the neighbour. The applicant submits, therefore, that the Court would have available the neighbour's submissions that the development is prohibited. Under those circumstances, the Court could take into account the issue raised by the neighbour that the development is prohibited. It is not necessary, the applicant submits, to join the neighbour in order for the Court to be able to consider that issue.
I consider that the issue would not be sufficiently raised unless the neighbour is joined to the proceedings and is able to press that contention.
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.
The other four issues that the neighbour seeks to raise are planning issues. Three of the planning issues concern compliance with controls in the Pittwater Local Environmental Plan or the Pittwater 21 Development Control Plan 2014.
The first alleged non-compliance is with the height control in cl 4.3 of Pittwater Local Environmental Plan. The height control is a development standard. The neighbour contends that the height of the amended development at the rear will be 8.7 metres. The maximum height prescribed by the height control in Pittwater Local Environment Plan is 8.5 metres. There therefore would be an exceedance of the height control by 0.2 of a metre. At present, the applicant has not made application pursuant to cl 4.6 of Pittwater Local Environmental Plan seeking a variation from the height development standard.
The second alleged non-compliance concerns the control in cl D 1.14 of Pittwater 21 Development Control Plan for the minimum landscaped area. That control specifies that the minimum landscape area should be 60%. The neighbour contends that the proposed development as amended will have a landscaped area of 55.7%. This is less than the minimum landscaped area prescribed by the control.
The third alleged non-compliance concerns the building site setback requirements in cl D 1.9 of Pittwater 21 Development Control Plan. Under those controls, there needs to be certain specified setbacks from the side boundaries for the development, at least 2.5m for one side and 1.0m for the other side. The neighbour contends that the proposed development as shown on the plans has setbacks less than the minimum setbacks prescribed by the controls, being 1.99m on one side and a variable setback of 1.74m to 2.3m on the other side.
These alleged non-compliances with controls in Pittwater Local Environmental Plan and Pittwater 21 Development Control Plan are not raised as issues by the Council in the amended statement of facts and contentions. It is true that the Council does raise planning issues in that amended statement of facts and contentions, but those planning issues do not include any alleged non-compliance with the controls that I have mentioned.
The neighbour contends that these non-compliances with the controls are issues that should be considered in relation to the appeal. The first non-compliance is, relatively speaking, of more importance than the second and third non-compliances. This is because the alleged non-compliance with the height control in the Pittwater Local Environmental Plan would preclude development consent being granted to the proposed development unless the applicant makes a written request under cl 4.6(3) of Pittwater Local Environmental Plan justifying the contravention of the height development standard and the Court is satisfied as to the matters in cl 4.6(4). As I have noted, at the moment, no such request has been made by the applicant pursuant to cl 4.6 of Pittwater Local Environment Plan.
Again, the applicant for development consent submits that it is not necessary, in order for these planning issues to be raised, for the neighbour to be joined. Each of these issues has been raised in submissions by the neighbour, including in a report of a town planner commissioned by the neighbour. The applicant submits that this report would be included in the bundle of documents tendered at the hearing by the Council. The Court can have regard to that report and can ask the parties' planners to address the issues raised in the neighbour's planner's report.
I consider that it is necessary to have the neighbour joined in order to raise these planning issues. As I said, in relation to the characterisation issue, unless the neighbour is joined, there will not be a sufficient contradictor to the contentions put by the applicant and the Council. As I have noted, the Council has not raised, in its amended statement of facts and contentions, any of these three non-compliances with Pittwater Local Environment Plan or Pittwater 21 Development Control Plan.
True, the Court could ask the planners called by the applicant for development consent and the Council for their view as to whether there has been or whether there will be any non-compliances in those respects and, if so, whether those non compliances are acceptable. However, this would require the planners on the run to determine, first, the question of fact of whether there are non-compliances and, secondly, whether those non compliances are satisfactory or not. It also would not provide an adequate opportunity to address the question of whether there should be a written request under cl 4.6 of Pittwater Local Environmental Plan to justify any non-compliance with the height control in Pittwater Local Environmental Plan. It is preferable that these issues be raised well in advance of the hearing and the parties have an adequate opportunity to address the alleged non compliances.
The fourth issue the neighbour seeks to raise is the alleged adverse shadow impacts on the neighbour's property. The neighbour seeks to contest the acceptability of the shadow impacts, including whether they are consistent with the relevant provisions in cl C 5.10 of Pittwater 21 Development Control Plan dealing with solar access. The applicant for development consent submits that the development plans include a plan showing the overshadowing of adjoining properties. In those circumstances, the applicant submits that it is not necessary to join the neighbour to consider the overshadowing of the neighbouring property.
The fact that there may be shadow diagrams which show the overshadowing at certain times of year and the extent of overshadowing at those times of year is not determinative of the issue of the acceptability of overshadowing of the neighbour's property. The shadow diagrams are only part of the evidence needed to address the contention that the overshadowing on the neighbouring property is unacceptable. I do not know whether the neighbour wishes to take issue with those overshadowing diagrams. It may be the neighbour does not. But in any event, the issue raised by the neighbour is the acceptability of whatever is the overshadowing of the neighbouring property. That is something which is not at the moment adequately explored in the evidence. The neighbour should be able to put forward his view as to the acceptability of the overshadowing that will occur by reason of the proposed development.
In these circumstances, I consider that the neighbour is able to raise issues, being the one legal and four merit issues that I have described, that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the neighbour were not joined as a party. That is to say, I am satisfied that the first limb of the power under s 39A is satisfied. It is unnecessary to determine whether the second limb would also be satisfied.
I consider the appropriate course would be to join the neighbour as a party to the proceedings. I should note, however, that the basis for the joinder is that the neighbour only raise the five issues that I have described and that were the basis for the application for joinder. I can make directions that the neighbour, once joined, file its statement of facts and contentions which identify those five contentions.
Once a person is joined as a party, they have all of the rights of a party. In one sense, this could include raising other issues than the five issues that I have articulated. However, the neighbour would require leave to advance any further issues. As happened in Manderrah Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 115, the Court may decline to allow any issues to be raised other than the five issues which were the basis for the joinder. I am not precluding any application being made in the future but merely indicate that the basis for the joinder is the five issues that have been raised.
The applicant for development consent also sought that a condition be imposed on the order for joinder that the neighbour not make an application for costs in the future. The neighbour contended that the Court may not have power to so condition an order for joinder. The neighbour indicated that at present, it has no intention to make such an application for costs. However, it contended that the Court should not make an order that there be no application for costs at this stage.
I agree that at the moment it is inappropriate to impose a condition on the order for joinder that no application be made for costs in the future. Any order for costs in a class 1 appeal is governed by r 3.7(2) of the Land and Environment Court Rules 2007, which says that the Court should not make any order for the payment of costs in class 1 proceedings unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. The question of whether it will be fair and reasonable in the circumstances will depend upon what happens in the conduct and outcome of the proceedings. It is premature to determine now what that conduct and outcome will be. Hence, it is premature to determine whether there could ever be circumstances in which it would be fair and reasonable to make an order for costs.
The matter has been fixed for hearing on 7, 8 and 9 November 2017. I consider that if the neighbour is joined as a party to the proceedings, those dates are not in jeopardy. The issues that I have identified are discrete. The legal issue is unlikely to require much, if any, evidence beyond what will already be put before the Court. It is essentially a question of the characterisation of the purpose of the development. This will be gleaned from the description of the development in the development application, the management plan and the plans. However, it may be that the applicant wishes to put on additional evidence to describe how the development will be carried out to assist the characterisation exercise.
The four merit issues are discrete. Three of them concern alleged non compliances with identifiable controls. The evidence will essentially be based upon the plans and calculations from those plans. A planner may be required to set forth those calculations. There is also then a question, if there are non-compliances, as to the acceptability of the non-compliances. A planner will need to address those issues of acceptability of any non-compliances. The question of overshadowing will essentially be based upon, firstly, the overshadowing diagrams and, secondly, an assessment of the acceptability of that overshadowing as shown. A planner can address those issues.
Currently, the planners called by the applicant for consent and the Council have been directed to confer and prepare a joint expert report by 22 September 2017. It will be necessary to vary that direction so as to include the neighbour's town planner in the joint conferencing process, and to extend the time by which the joint expert report should be filed and served.
Because the four matters that are proposed to be raised are reasonably discrete, I do not consider that a great deal of time will be required in order to address those four issues. Nevertheless, it will be necessary to extend the time beyond 22 September 2017. But even if one extends that for a couple of weeks, there still will be adequate time before the hearing between 7 and 9 November 2017.
I therefore consider that the joinder of the neighbour will not jeopardise the orderly preparation and timing of the hearing in this matter.
For those reasons, I make the following orders:
1. Join Matthew Durden as a party to these proceedings.
2. Vacate direction 5 made by the Court on 11 July 2017.
3. Under rules 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005, make the following directions regarding expert evidence: Kate Fleming, Tyson Ek-Moller and Vivienne Albin are to confer in relation to town planning issues under Uniform Civil Procedure Rules 2005 r 31.24 and prepare a joint expert report, and the joint expert report is to be filed and served by 12 October 2017.
4. Direct Mr Durden to file and serve a statement of facts and contentions by 15 September 2017.
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Decision last updated: 29 September 2017
Parties
Applicant/Plaintiff:
Avalon Beach Property Pty Limited ACN 609856224 as Trustee for the Avalon Beach Property Trust