159 LG ERA 361
Category: Principal judgment
Parties: Basscave Pty Limited (Applicant)
Marshall Rural Pty Limited (Applicant for joinder)
Source
Original judgment source is linked above.
Catchwords
159 LG ERA 361
Category: Principal judgment
Parties: Basscave Pty Limited (Applicant)
Marshall Rural Pty Limited (Applicant for joinder)
Judgment (5 paragraphs)
[1]
Solicitors:
Doyle Wilson Solicitors (Applicant)
Pikes & Verekers Lawyers (Respondent)
File Number(s): 11052 & 11053 of 2014
[2]
extempore Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Marshall Rural Pty Limited (Marshall) seeks to be joined as a party in two development appeals which are presently listed for an onsite s34 conciliation conference tomorrow.
To that end, Marshall has filed two notices of motion dated 13 February 2015 seeking orders for joinder under s39A of the Land and Environment Court Act 1979 (the Act). Each motion is supported by an affidavit prepared by Marshall's lawyer Mark C Wilson and dated 13 February 2015 (Exhibit A1).
The affidavits which are read, subject to relevance, record that Marshall owns the property adjacent and contiguous with the land the subject of one of the development appeals and is an objector in both appeals.
The development appeals are matters numbered 11052 and 11053 of 2014. They concern two development applications lodged with the Hawkesbury City Council (Council) by Basscave Pty Limited (Basscave) for alterations and additions to two barns erected on land at Richmond Lowland. The proposal is to use each of the barns, which are known as the "Polo Barn" and, the "Sunnybrook Barn", as a restaurant with a seating capacity for 120 people.
The Council resolved to refuse its consent to both applications on 3 February 2015. The notice of determination in respect of the Polo Barn DA states the following reasons for refusal:
1. That the proposed development as described in the application is a 'Function Centre' which is prohibited within the RU2 Rural Landscape zone under the Hawkesbury Local Environment Plan 2012; and
2. The applicant has not provided suitable information demonstrating that the use would not have unacceptable noise impacts for adjoining properties.
The notice of determination in respect of the Sunnybrook Barn DA states the following reason for refusal:
1. The proposed development as described in the application is defined as a 'Function Centre' which is a prohibited within the RU2 Rural Landscape zone under the Hawkesbury Local Environmental Plan 2012.
The Council has filed a statement of facts and contentions in each appeal dated 14 January 2014. The statements essentially the same. They raise three contentions:
Classification and Permissibility
1. The proposed development is defined as a 'Function Centre' which is prohibited within the RU2 Rural Landscape zone under the Hawkesbury Local Environmental Plan 2012.
Particulars
(a) The proposed development does not provide food preparation facilities within the building and would instead rely on the external preparation of food by caterers. On this basis the proposal cannot be defined as a 'Restaurant or Café' and would instead be defined as a 'Function Centre' under the Hawkesbury Local Environmental Plan 2012.
(b) The plan shows that the Polo Barn/ Sunnybrook Farm does not contain a commercial kitchen or other facilities that may be used for the preparation of food.
(c)The development is most accurately defined as a 'function centre' as the Polo Barn/Sunnybrook Farm is to be used exclusively for the holding of events and functions. Furthermore, a booking is required for the events and functions. Patrons are not able to walk in off the street and order food from the menu as is the case with a restaurant or café.
Flooding
2. A. flood evacuation management plan has not been prepared for the development. This may be conditioned.
Insufficient information
3. Insufficient information has been provided to allow the full and proper assessment of the development:
Particulars
(a) The prepared documentation fails to demonstrate how the development will be managed to meet the recommendations of the acoustic report.
(b) A Quality Assurance Program in (QAP) for water usage intended in cooking/food preparation needs to be developed in accordance with the Private Water Supply Guidelines developed by New South Wales Health.
(c) A plan showing location of car parking and service areas within the immediate vicinity of the Polo Barn has not been provided.
(d) The provision of disabled access and facilities for the development is not demonstrated. This may be conditioned.
Residents' concerns
4. The following matters were raised in submissions in response to the notification of the development:
Particulars
(a) The absence of a functioning working kitchen highlights the development will operate as a 'Function Centre' as opposed to a bone fide restaurant.
(b) The development will generate unacceptable noise impacts for nearby residents.
(c) The use of live bands and amplified music will generate unacceptable noise impacts for nearby residents.
(d) The restaurants should be restricted to a two commercial areas, not rural land.
(e) Roads within the Richmond Lowlands have not been designed to cater for the levels of traffic generated by the development.
Marshall submits that the Council has not considered the correct basis on which to characterise the use. It contends that the Council's assessments of the applications (as disclosed in the affidavit evidence of Mr Wilson - including the statements made by the respondent's Director of Planning, Mr Owen at the Council's meeting on 3 February 2015 (exhibit A)), have incorrectly focused on the inclusion of a kitchen in the developments for the purpose of characterising the use as a restaurant.
Marshall contends that a commercial kitchen is only one feature which leads to the characterisation of a use as a 'restaurant' and, in this case it is necessary to look behind the description of the development to construe what is actually proposed: Blacktown City Council v Haddad [2012] NSWLEC 224 at [19]; Dooralong Residents Action Group Pty Limited v Wyong Shire Council (2011) 186 LGERA 274 at [34]-[35] and [99].
Therefore, in order to ensure that the issue of characterisation is sufficiently addressed Marshall submits it needs to be joined as a party to each appeal under s 39A of the Act.
Apart from the correct characterisation of the use Marshall also submits that there has been no adequate assessment of the noise impacts of the developments on the adjoining properties (including its land). It contends that the acoustic report referred to in the Council's contentions is an invalid report based on incorrect measurements. Therefore, the contention as framed by the Council is raised in the wrong way. It would like an opportunity to address the noise impacts of the developments on a different basis to that expressed by the Council so as to ensure that the noise issue is sufficiently addressed.
It also submits that it is in the interest of justice and, the public interest generally, that Marshall be joined as a party in each appeal: s 39A (b) (i) and (ii) of the Act.
As noted at the outset there is some urgency in dealing with these applications for joinder because the appeals are listed for an onsite section 34 conciliation conference before a Commissioner of the Court tomorrow. For that reason the Chief Judge has allocated these appeals to me under s30 of the Act to deal with the joinder applications and make such orders as are necessary to ensure the orderly and expeditious progress of the appeals.
Section 39A of the Act empowers the Court to join Marshall as a party to the proceedings if I am of the opinion:
1. 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
2. that:
1. it is in the interests of justice, or
2. it is in the public interest,
that the person be joined as a party to the appeal
The Council opposes the joinder of Marshall as a party to the appeals. It submits that it has refused the applications and, its contentions, as framed in the appeal, embrace Marshall's issues.
Basscave also opposes the joinder of Marshall to each of the proceedings. It relies on the affidavit evidence of Andrew James Doyle filed on 18 February 2015 and the exhibits thereto (Exhibit A). A written outline of its submissions has been filed in Court (BWS). In summary, based on the affidavit evidence of Mr Doyle, Basscave is of the opinion that Marshall has had ample opportunity to raise its issues with the Council and that the Council's contentions sufficiently cover those issues. The opportunities provided to Marshall include making representations through its planning lawyer in respect of the applications before their assessment by Council, during that assessment process and, also, at the Council's meeting on 3 February 2015 when its lawyer addressed the Council before the applications were refused (BWS at[11]-[21]). In short, it contends that "The issues raised by the Council in its statement of facts and contentions squarely raise the concerns raised by Marshall in the assessment of the DA" at [14] of (BSW).
Therefore, it believes that Marshall's application to be joined as a party should be refused. Joinder is not necessary to ensure that Marshall's issues are sufficiently ventilated during the hearing or required as a matter of public interest or in the interests of justice. At [30] of (BSW) Basscave submits: "The Court, in determining the application, will be assisted by the Council as the genuine contradictor to Basscave, so that a proper and lawful decision may be made".
Marshall can object through the Council and address the s34 conference tomorrow if it wishes. Furthermore, if an agreement is reached during the conference and the Council decides to proceed by way of consent orders then Marshall would be notified of the proposed orders and, if still unsatisfied with the proposals could address the Court at any consent orders hearing.
The Council embraces the submissions made by Basscave in opposing the joinder of Marshall as a party to the proceedings.
[3]
Consideration
Exhibited to Mr Doyle's affidavit are the Minutes of the Ordinary Meeting of the Hawkesbury City Council held on 3 February 2015 (Exhibit A). They include the planning assessment report in respect of the applications prepared by Council's planner. Relevantly, at page 46 the planning report there is discussion about the definition of a 'Restaurant and café' under the LEP 2012 and, its principal purpose being the preparation and serving of food and drink. As the Council believed that the proposed development (Polo Barn ) did not provide food preparation facilities i.e. a commercial kitchen within the buildings and, instead relied on the external preparation of food by caterers, it assessed that the proposals could not be defined as a 'Restaurant or Café'. The planner held similar views in respect of the Sunnybrook Barn. At page 50 the planning report deals with the topic of noise. It refers to an acoustic report having be prepared and submitted with the development however, the assessing officer criticises that acoustic report. The planning report states:
…most critically background noise levels within the report were represented by levels obtained at a property along Terence Road, as opposed to the closest affected property along Edwards Road (location B is indicated within the submit a report). Therefore, the application fails to demonstrate the development will not generate adverse noise impacts for residents within the vicinity of the proposed development.
As stated, Marshall contends that the Council's focus on the inclusion of a kitchen as the defining feature of a 'Restaurant/café' use when compared to a 'Function Centre' under the LEP is misplaced and, that there are other factors which need to be had regard to in terms of defining the use or rather characterising the use. The Council's focus on the kitchen and approach to characterisation, as detailed in the planning report, is reaffirmed by the Council's Director of planning, Mr Matthew Owens on the evening of 3 February 2015 when at the Council meeting in respect of the development applications he states:
…One of the counsellors subsequently asked Mr Matthew Owens (Council's Director of Planning) whether he agreed that objectors needed to be notified of the amended plans. He responded to the effect that: "It is up to Council as to whether the amended plans need to be notified to object to". In this case, I do not think that is necessary".
[P8 at [25] of Exhibit A1)
The amended plans Mr Owen is referring to (are not formally before the Court) but apparently they clarify the area on the submitted plans is a kitchen, so as to overcome, any misunderstanding about the fact that the development proposed is a restaurant with a commercial kitchen.
The affidavit evidence of Mr Wilson continues: ( at p9 at [25] (i) Exhibit A1):
Following those speeches, one of the Counsellors raised a question with Mr Matthew Owens, the Director of Planning at the Council, to the following effect: "Your report recommends refusal of the development application. In view of the amended plans, did this change your recommendation? Mr Owens responded to the effect that "Yes, this does change my recommendation". In view of the application being for a restaurant, which is permitted in the zone, and in view of the amended plans dealing with a key concern being the lack of a kitchen, the recommendation would change from refuse to approve".
The parties have referred me to a number of cases dealing with the application of s 39A of the Act. In particular, the Chief Judge's decision in Morrison Design Partnership Pty Limited v North Sydney Council [2007] NSW LEC 802; 159 LG ERA 361 at [57]- [61]. At [59] Preston CJ states:
One of the purposes of section 39A, particularly reflected in paragraph (a), is to allow the joinder of a person as a party to enable issues to be sufficiently addressed and hence to inform the Court so that it can have proper consideration to the issues.
Therefore, I need to determine if the issues raised by Marshall are likely to be sufficiently addressed by the Council so that the Court can be fully informed about the issues and have proper consideration of the issues.
Basscave submits that all of the issues raised by Marshall will be sufficiently addressed by the Council in the appeals and that circumstance the Court's cannot be of the opinion that it should allow the joinder of Marshall as a party under s 39A(a). The application for joinder should be dismissed on that ground.
Similarly, Basscave asserts that s 39A (b) (ii) and (iii) are not a basis for joinder in the circumstances of this case.
The evidence is that Marshall was given numerous and meaningful opportunities to be heard through the assessment process including the exhibition period, and again after a notification of the amended plans and before and during the Council meeting.
Basscave (BWS at [25] ) reminds me of the Court's reasoning in Morrison Design at [54]:
"…The process of the community on affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected person to put forward issues; that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to the proceeding".
and submits that the interests of justice in this case do not support a joinder.
It may well be that Marshall has had ample opportunity to voice its concerns about the applications to the Council. However, I must form an opinion as to whether Marshall's issues are likely to be sufficiently ventilated in the hearing by the Council so as to fully inform the Court and allow a proper consideration of the issues. And, based on the evidence, whether it is in the public interest and the interests of justice to join Marshall to ventilate the acoustic issue given how the Council has framed the contention before the Court.
[4]
Conclusion
I am mindful that s39A is not to be used to accommodate mere dissatisfaction with the merit outcome of a determination by a consent authority or to be used to allow an objector an opportunity to continue to argue its particular submission.
However, clearly Marshall does not fall into the first category of objector as the applications have been refused nor does it (in my assessment) fall into the latter category.
After consideration of all of the evidence, the parties' submissions and the case law I do not believe that the Council's contentions as framed address the issues raised by Marshall because in my of the opinion the correct basis on which to characterise the use is at issue between the Council and the applicant Marshall.
In those circumstances, I am of the opinion that the issue of characterisation is not likely to be sufficiently addressed if Marshall is not joined as a party to the appeals: s 39A (a).
I also am of the opinion that it is in the public interest to join Marshall as a party to the appeals to ensure that the noise issue is fully ventilated before the Court as the evidence suggests that there may be some issue with the accuracy of the measurements the basis of the recommendations referred to in the contentions. It seems to me that the contention in respect of noise has been raised in the wrong way.
In the circumstances I accept the views expressed by the Council and Basscave that there would be no utility in proceeding with the s34 conference tomorrow now that Marshall is a party in the proceedings. Rather, in the interests of the just, cheap and quick determination of the issues I believe it would be more useful to hold a case management hearing in order to refine the issues and make appropriate directions for hearing of the appeals.
For the reasons stated I make the following orders :
1. That Marshall Rural Pty Ltd ACN 101798421 to be joined as a second respondent to the proceedings matters nos: 11052 of 2014 and 11053 of 2014.
2. That the s 34 conciliation conference scheduled for Friday, 20 February 2014 is vacated.
3. The parties are directed to nominate a case management date which is convenient to the parties and me and to advise the Registrar.
Susan Dixon
Commissioner of the Court
[5]
Amendments
03 March 2015 - Minor formatting only
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Decision last updated: 03 March 2015