Bilotta v Inner West Council

Land and Environment Court (NSW)|2021-11-12|Before: Pain J

Solicitors: McKees Legal Solutions (Applicant) Lindsay Taylor Lawyers (Respondent) Mills Oakley (Applicants on the motions) File Number(s): 2021/156562, 2021/276619

Judgment

Mr Frank Bilotta (the Applicant) has filed two appeals, one against an actual refusal and the other against the deemed refusal of two development consent modification applications in relation to a property at 93 Louisa Road, Birchgrove (the Property) by the Inner West Council (the Council) pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Two of his neighbours, Mr Henry Cheung and Mr Joseph Macri (the Applicants for joinder) are seeking to join as parties in the appeals under s 8.15(2) of the EPA Act or r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). I heard as duty judge the four notices of motion being two motions dated 26 October 2021 and 8 November 2021 respectively, filed substantially identically in both appeals. Modification appeal No 2021/156562 concerns the overrun of a lift structure already built on the roof (Lift Overrun Appeal). The other modification appeal No 2021/276619 deals with a number of changes some or all of which have been built inter alia (General Modification Appeal). The Applicant opposes the motions. The Council neither consents to nor opposes the motions.

Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the EPA Act provide: Part 4 Development assessment and consent … Division 4.9 Post-consent provisions … 4.55 Modification of consents - generally … (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. … (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. … Part 8 Reviews and Appeals … Division 8.3 Appeals - development consents … 8.9 Appeal by applicant - modifications of development consent An applicant for the modification of a development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. … 8.15 Miscellaneous provisions relating to appeals under this Division … (2) On an appeal under this Division, 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. …

Uniform Civil Procedure Rules 2005 (NSW)

The relevant rule of the UCPR provides: Part 6 Commencing proceedings and appearance … Division 5 Joinder of causes and action and joinder of parties ... 6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. (2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.

Statement of Facts and Contentions in Lift Overrun Appeal

Relevant parts of the Council's Statement of Facts and Contentions (SOFAC) in the Lift Overrun Appeal are extracted as follows: PART B - CONTENTIONS 1. Respondent's contentions The Council contends that the following facts, matters and circumstances require or should cause the Court, in exercising the functions of the consent authority, to refuse the application or to impose certain conditions. Contention 1: Unacceptable height, bulk, and scale 1.1 The proposed modification should be refused because it will result in a development of an unacceptable height, bulk, and scale. Particulars (a) The height, bulk, and scale of the development would be unacceptable in the context of the locality; (b) The proposed modification does not meet the objectives in paragraphs (b), (c), (e), (f), (l), and (o) of clause 1.2 of the Leichhardt LEP referred to in paragraph 4.6(a) of Part A above; (c) The proposed modification does not meet the R1 zone objectives in clause 2.3 of the Leichhardt LEP referred to in paragraph 4.6 (b) of Part A above; (d) The proposed modification would breach the side boundary setback graph in control C7 and does not meet the criteria for higher walls under control C8 of C3.2 of the Leichhardt DCP. Contention 2: Unacceptable impact on heritage 1.2 The proposed modification should be refused because it will have an unacceptable impact on the heritage values of the HCA. Particulars (a) The proposed height of the dwelling with the lift overrun as proposed to be modified is excessive in relation to nearby historic buildings in this section of Louisa Road; (b) Lift overruns are not part of the established character of the HCA; (c) The development does not take into account the special qualities of the site and its context including its heritage considerations and does not meet objective O1 (f) in C1.1, objective O3 and control C1(a) in C3.1 of the Leichhardt DCP; (d) The height and scale of the proposed lift overrun is not a satisfactory response to the heritage significance of the HCA, meaning the proposed modification does not meet objectives O1 (a), (d) and (i) and controls C6 and C8 in C1.4 of the Leichhardt DCP or the objectives in paragraphs (a) and (b) of clause 5.10(1) of the Leichhardt LEP. Contention 3: Unacceptable streetscape character and inconsistency with desired 1.3 The proposed modification should be refused because it will result in an unacceptable change to the streetscape character of Louisa Road, Birchgrove and the desired future character of the Louisa Road sub-area, Birchgrove Distinctive Neighbourhood. Particulars (a) The lift overrun would not be complementary to the streetscape character or the character of the Sub-Area in terms of its architectural style, built form, and materials, meaning the proposed modification would not meet controls C8 or C21 of C2.2.2.6(a) of the Leichhardt DCP. (b) The box form of the proposed lift overrun is inconsistent with objective O1 and control C6 of C2.2.2.6 of the Leichhardt DCP, which requires the preservation of consistent patterns of architectural styles; (c) The form of the lift overrun is inconsistent with control C18 of C2.2.2.6 of the Leichhardt DCP, which requires that new development shall maintain the use of hipped, pitched, or gabled roof forms and that designs shall be complementary to the existing unadorned built form; (d) The height and scale of the proposed lift overrun is inconsistent with the desired future character of the Sub Area and does not take into account its streetscape context, meaning the proposed modification does not meet objectives O6 of C1.0 and O1(f) of C1.1 as well as the Character, Form and Siting requirements in C1.0 of the Leichhardt DCP. (e) The development is not compatible with the established character of the neighbourhood, the desired future character, and scale and form of existing adjacent buildings contrary to objectives O3 and O4 and control C1(a) in C3.1 of the Leichhardt DCP. (f) The appearance of the lift overrun as viewed from public places on or near the foreshore would not be sympathetic with the surrounding area or to the unique visual qualities of Sydney Harbour, meaning the proposed modification does not meet clause 25(b) of the Harbour REP, clause 5.4 of the Harbour DCP, or objective O6 of C1.0 of the Leichhardt DCP 2. Insufficient information 2.1 The Application is not supported by a heritage impact statement to assist in the assessment of matters of consideration under clause 5.10 of the Leichhardt LEP.

Statement of Facts and Contentions in General Modification Appeal

Relevant parts of the Council's SOFAC in the General Modification Appeal are extracted as follows: PART B - CONTENTIONS 1. Respondent's contentions that the application be refused The Council contends that the following facts, matters and circumstances require or should cause the Court, in exercising the functions of the consent authority, to refuse the application or to impose certain conditions. Contention 1: Minimal Environmental Impact 1.1 The proposed modification should be refused because it is not considered to be of minimal environmental impact. Particulars (a) The proposed modifications are inconsistent with Section 4.55(1A) of the Environmental Planning and Assessment Act 1979 as the Court would not be satisfied that the changes involve minimal environmental impacts. 2. Respondent's contentions that may be resolved by conditions of consent Contention 2: Adverse Visual privacy impacts 2.1 The proposed modification does not ensure that visual privacy between the subject and adjoining dwelling/s is maintained. Particulars (a) The proposal is inconsistent with the Part C3.11 objective O1 and controls C1 and C7 of the LDCP 2013. (b) This contention can be resolved by amending Condition 5, as follows: 5. To ensure reasonable privacy for the adjoining property, the following windows/glazing: Window/glazing Room Elevation W07 Lounge Western W13 Bedroom Eastern W06 Dining Eastern Not numbered Bedroom 1 Eastern

must be treated with one of the following privacy treatments: • have a minimum sill height of 1.6m above finished floor level. or • be permanently fixed (that is windows are not to swing or lift open) with obscure glazing (not frosted film on clear glazing) to a height of 1.6 metres above finished floor level; or • provided with fixed external louvers with a density of 75% and have no individual opening more than 30mm wide, and have a total area of all openings that is less than 30 per cent of the surface area of the screen and be made of durable materials. Where fixed louvered screens are used, the screen structure must be securely fixed. The louvers may tilt open from a closed position to an angle of 45 degrees in either a downward or upward position, depending on the sightlines that are to be restricted. The treatment must ensure that the ventilation requirements of the Building Code of Australia are met. If one treatment cannot satisfy the requirements, an alternative in the list above is to be used. Details must be provided prior to the issue of a Construction Certificate to the satisfaction of the Principal Certifying Authority. The privacy measures must be maintained for the life of the building. Contention 3: Impacts on the heritage conservation area 3.1 The proposed sandstone clad privacy screens at the basement level will have an unacceptable impact upon the heritage significance of the heritage conservation area as it is an unsympathetic alteration and addition to the building. Particulars (a) The proposed modifications are inconsistent with the Part C2.2.2.6 objective O1 and control C19 as the material and finish is inconsistent with the contributory material in the HCA. (b) This contention can be resolved by the imposition of the following condition: Prior to the issue of a Construction Certificate, the Certifying Authority must be provided with amended plans demonstrating that the proposed sandstone clad privacy screens to the east and west elevations of the terrace at basement level are replaced with rendered masonry walls painted in Dulux "White Duck". 3. Insufficient information 4.1 The Application is not supported by plans, elevations, photographs and/or photomontages to demonstrate how view sharing is achieved or how the proposed modifications will prevent impacting on existing views obtained from neighbouring properties so as to comply with Part C3.10 objective O1 and controls C1, C2 and C3 of the LDCP 2013. Inadequate information has been provided regarding the impact on existing views obtained from neighbouring properties. 4.2 It has not been demonstrated that the proposed dwarf walls with frameless glass balustrade to the east and west corners of the roof terrace do not have a detrimental effect on the HCA and comply with Part C2.2.2.6 objective O1 and control C19 and 11 C21. Further information is required regarding the visual impact from the street and water (public domain). 4.3 The Application is not supported by details of the proposed sandstone clad privacy screens to the east and west elevations of the terrace at the basement level. 4.4 The Application is not supported by a works as executed plan showing the further building works that have been carried out to date and what further works are required.

Evidence

The Applicants for joinder read the following affidavits in support of the two notices of motion in the Lift Overrun Appeal and two notices of motion in the General Modification appeal: 1. Mr Macri affirmed an identical affidavit dated 22 October 2021 in both proceedings; 2. Mr Cheung affirmed an identical affidavit dated 25 October 2021 in both proceedings; and 3. Mr Alexander Kingsbury solicitor affirmed an identical affidavit dated 8 November in both proceedings.

Mr Cheung's affidavits

Mr Cheung is the registered proprietor of 91 Louisa Rd, a neighbouring property to the Property. He provided evidence of his ownership of that property and the background of his involvement in relation to the applications for development of the Property. On 5 August 2020, Mr Cheung provided extensive objections to the Council on the lift run modification application (Annexure B) and set out his issues in relation to the proposed modification in a letter dated 31 August 2021 to the Council's solicitor (Annexure C). Mr Cheung deposed that the lift overrun has already been constructed and that he believes that it is very unpleasant from a visual amenity perspective as a result of its significant bulk, scale and copper cladding. It is impossible not to be distracted by the lift overrun from the outdoor roof terrace of Mr Cheung's property and it dominates the panoramic view of Sydney Harbour which is now dramatically impeded. He does not believe the lift overrun is in keeping with the character of the locality and believes it impedes the area's visual amenity.
By letter dated 31 August 2021 to the Council Mr Cheung argued that work on the roof terrace lift shaft and overrun continued in defiance of a Council Stop Work Order issued 3 June 2020 and annexed photographs that allegedly demonstrate this. He also annexed a surveyor's report of the Property by CMS surveyors dated 16 June 2020 which he commissioned. This was to demonstrate that the roof structure was not compliant with the original development approval.
On 2 September 2021 Mr Cheung provided another letter of objection to the Council's solicitor for consideration pursuant to s 4.15(d) of the EPA Act in relation to the general modification application (Annexure D). He deposed that the new dwarf walls proposed in the modification application have already been built and are unattractive, add to the bulk and scale of the neighbouring property and substantially impose on his view, particularly of the "Sydney icons". He also deposed that he is concerned at the environmental impact of the barbecue area, including in relation to fire safety, smoke, amenity and health. He noted that no amelioration of smoke impacts has been proposed. The Court was also taken to a photograph of the large wood-fired oven in the barbecue area.

Mr Macri's affidavits

Mr Macri is the registered proprietor of 95 Louisa Road, a neighbouring property to the Property. He provided evidence of his ownership of that property and the background of his involvement in relation to the applications for development of the Property.
On 31 August 2021 Mr Macri provided a letter to the Council's solicitor setting out issues in relation to the lift overrun modification application for the Court's consideration (Annexure B).
From Mr Macri's observations, the lift run has been built and accommodates what appears to be a commercial scale lift. He documented the visual form of the lift in photographs attached to his letter dated 31 August 2021. The photographs were taken at Mr Cheung's request. The size, bulk and scale of the lift overrun is overwhelming and creates a strong sense that the boundaries of his property are being encroached upon. It significantly impacts his sense of personal privacy and space on his property. He also deposed that the lift overrun would have detrimental impacts on the visual amenity of the locality as it is unsightly and inconsistent with the heritage character of the area.
On 22 September 2021 Mr Macri caused his lawyers to engage Mr Giovanni Cirillo of the Planning Lab to prepare an independent expert report addressing the town planning considerations relevant to the lift overrun modification application. The report as received on 1 October 2021 was Annexure D to his affidavit.
On 2 September 2021 Mr Macri provided a letter to the Council in relation to the general modification application (Annexure E).
On 2 September 2021 Mr Macri provided the Council with an objection letter to the general modification application prepared by Mr Cirillo addressing the town planning considerations relevant to that application (Annexure F).
On 8 September 2021 Mr Macri caused his lawyers to issue an objection letter to the Council addressing legal issues with the general modification application (Annexure G).
Many of the changes proposed by the general modification application affect Mr Macri because they occur along the side of the Property adjacent to his property. Of particular concern to him are the proposed large window on the eastern side of Bedroom 1, the frosted film finishing for Window 13, and the removal of Window 6 and its replacement with large floor to ceiling glass panels. In relation to the large window in Bedroom 1, Mr Macri deposed that it has already been constructed and has significant amenity and privacy impacts on his property. This is substantially different to the original brick masonry wall with no windows approved. Mr Macri deposed that the use of frosted film is insufficient to prevent a detrimental impact on his privacy from Window 13. He believes the small, glazed Window 6 originally approved has already been replaced with a large glass panel which look directly into his bedrooms, with consequent significant amenity and privacy impacts.
Mr Cirillo's report received 1 October 2021 addressed whether the lift overrun modification application is of minimal environmental impact; whether the development as proposed is substantially the same development as the development for which the consent was originally granted; and the planning merits of the proposed modifications. When considering the planning merits of the proposal, Mr Cirillo considered whether: 1. the modification proposed should be approved in accordance with the matters to be considered under s 4.15 of the EPA Act; and 2. the modification proposed aligns with the reasons for granting the original consent sought to be modified.

Mr Kingsbury's affidavits

Mr Kingsbury's affidavits were filed in support of the notices of motion dated 26 October 2021 in each proceeding seeking orders that the Applicants for joinder be joined to both proceedings. He is a solicitor representing the Applicants for joinder. He was instructed by the Applicants for joinder to issue a letter to Mr Cirillo to prepare an independent expert report on their behalf addressing planning considerations in relation to the modification application the subject of the General Modification Appeal. Mr Cirillo's expert report is Annexure A to Mr Kingsbury's affidavit.
Mr Cirillo noted that the proposed modification M/2021/320 includes a range of elements which he does not consider to be of minimal environmental impact. He also provided a view on whether the development is substantially the same as the development for which consent was originally granted.
Mr Cirillo expressed opinions in relation to the planning merits of the proposal, including on whether: 1. the modification proposed aligns with the reasons for granting the original consent sought to be modified; 2. the modifications proposed adequately manage visual privacy impacts from the Property on 95 Louisa Road; 3. the proposed setback is reduced, and if so whether it creates an unreasonable sense of enclosure and facilitates an appropriate separation between the buildings; 4. the existing built form aligns with the built form proposed and whether any proposals for demolition or remediation have been made; 5. the proposed dwarf walls and associated glass balustrades on the roof terrace of the neighbouring property would have an unacceptable impact on 91 Louisa Rd; and 6. the impacts of the proposed barbecue area in the basement level are acceptable, taking into account the large woodfire oven already built.

Mr Tyrrell's affidavit

The Applicant read one affidavit of Mr David Tyrell solicitor dated 11 November 2021 including two annexures. Annexure A is the development assessment report for the original development application (D/2018/25) which approved "demolition of existing dwelling and associated structures and remediation of site. Construction of a new dwelling with basement parking provided with a car lift, landscaping and pool". Annexure B is a letter from Mr Graham McKee of McKees Legal Solutions, the Applicant's solicitors, to Mills Oakley, the solicitors of the Applicants for joinder, dated 11 November 2021.
The letter of 11 November 2021 attached amended plans prepared by ESNH Design Pty Ltd dated 11 November 2021. The letter stated that after a visit to the Property on 10 November 2021 the Applicant's solicitors were of the opinion that the lift overrun is not able to be seen from 91 Louisa Road. Mr McKee recorded that no objection would be taken to Mr Cirillo acting as the representative of the Applicants for joinder at the s 34AA conference and agreed to facilitate the Applicants for joinder visiting the Property to better understand what will be done to protect their privacy. The letter noted that the Applicant is preparing a reply to contentions which are relevant to the concerns of the Applicants for joinder. The amendments shown in the plans attached to the letter included the following. 1. The large window from Bedroom 1 facing east towards 95 Louisa Road will not be pursued. 2. Window 14 in Bedroom 1 will be replaced by a corner window, the same as has been built on the eastern corner of the upper ground floor plan. 3. An eastern corner window (as built) on the upper ground floor level. 4. Balconies on the first floor plan (Bedroom 1) will be returned to being non-trafficable. 5. The glass balustrading will be removed and non-trafficable pebbles reinstated.
Mr McKee's letter annexed a photo of the lift overrun from 10 November 2021. It confirmed that McKees Legal Solutions held instructions to file a notice of motion to seek to rely on the amended plans prior to the s 34AA conciliation conference on 14 and 15 December 2021. The letter stated that the affidavit together with the annexed original development assessment report by the Council is to show that the issues raised by the Applicants for joinder have been addressed by the Council or are being addressed through the two sets of proceedings.

Applicants for joinder submissions

The Applicants for joinder relied on the statement of principles in relation to the discretion to join parties to Class 1 proceedings under s 8.15(2) of the EPA Act of Pepper J in Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20 (Barr) at [50]-[53], citing the principles in Morrison Design Partnership v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 (Morrison Design) at [42]-[61] (Preston CJ) in relation to s 39A of the Land and Environment Court Act 1979 (NSW) (LEC Act), the predecessor provision to s 8.15(2).
The Applicants for joinder will provide evidence and make submissions on legal including jurisdictional issues (in s 4.55(1A) of the EPA Act) and merits issues which the Council's case as found in the SOFACs in each appeal do not address. Participating as an objector at the outset of the s 34AA conference will not be sufficient opportunity to address these matters particularly the legal issues the Applicants for joinder consider need to be raised.
The Applicants for joinder seek to raise the following contentions in relation to the Lift Overrun Appeal: 1. The application cannot be approved unless the Court is satisfied that the proposed modification is of minimal environmental impact (as per section 4.55(1A)(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and the Court cannot be satisfied so. 2. The application cannot be approved unless the Court is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (as per section 4.55(1A)(b) of the EP&A Act) and the Court cannot be so satisfied. 3. In determining an application for modification of a consent under this section, the Court must (under section 4.55(3) of the EP&A Act) take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified and, when those reasons are so considered, the Court should refuse the application. 4. The application must be refused as the proposed modification application seeks to authorise development that has already been carried out and a development consent can never retrospectively approve the carrying out of development. 5. The application should be refused because the proposed modification application seeks to authorise building work that has already been carried out and a construction certificate cannot be issued for such work under section 109F(1A) of the EP&A Act as continued by clause 18[A] of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017). 6. The application must be refused because the proposed lift overrun would have an unacceptable view impact in relation to 91 Louisa Road, Birchgrove.
When the Council's SOFAC is considered these issues are not raised. Issues 1-5 are mixed legal and factual issues. Issue 6 is a merit matter.
The Council did not raise any contention in relation to whether the modification application was of minimal environmental impact. This requires a "very small" or negligible impact (King, Marwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 (Jagot J) at [84]) and the Council could not be satisfied that the modification would have an effect able to be characterised in those terms. The task requires a comparison of the environmental impacts of the development as originally approved and as modified. It is not to be done in a sterile vacuum by comparing the bare terms of the consent as granted and as modified but a qualitative and quantitative appreciation of the environmental impacts: Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 at [57] (Preston CJ).
In relation to proposed contention 2, the Applicants for joinder relied on Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) at [24]-[28] (Preston CJ). These paragraphs outline what is required when considering the "substantially the same" test under s 4.55(1A) of the EPA Act. "Substantially" means "essentially or materially having the same essence": Arrange at [26]. The statutory inquiry can involve comparison of the material and essential features of the originally approved and proposed developments or comparison of the environmental consequences of the originally approved and proposed developments: Arrage at [27]. The Applicants for joinder will lead expert evidence on these matters.
In relation to contention 3 in the Lift Overrun Appeal, s 4.55(3) requires the Court to have regard to the reasons for the original grant of consent. The Applicants for joinder would provide evidence of disharmony between those reasons and the lift overrun modification application and the Council simply does not raise the issue.
Contentions 4 and 5 of the Applicants for joinder in the Lift Overrun Appeal are lent force by the observations of Preston CJ in Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 (Buyozo) at [39]-[45]. Works cannot be retrospectively approved by modification of a development consent. It is unclear from the current Class 1 application what is existing and what is sought in the modification. The modifications sought are not about use and there is no assurance of compliance with the Building Code of Australia (BCA) if a construction certificate cannot be issued retrospectively. The former s 109F of the EPA Act in force at the relevant time provided in subs (1A) that a construction certificate has no effect if issued after the building work to which it relates is physically commenced. By virtue of cl 18A of the Environment Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 that provision continues to apply.
No Building Information Certificate (BIC) is before the Court with the necessary supportive documents identifying that safety concerns and compliance with the BCA can be satisfied. It is therefore unclear how the Court can approve the use of unlawful structures in these appeals.
The Applicants for joinder seek to raise the following contentions in relation to the General Modification Appeal: 1. The application cannot be approved unless the Court is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (as per section 4.55(1A)(b) of the EP&A Act) and the Court cannot be so satisfied. 2. In determining an application for modification of a consent under this section, the Court must (under section 4.55(3) of the EP&A Act) take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified and, when those reasons are so considered, the Court should refuse the application. 3. The application must be refused as the proposed modification application seeks to authorise development that has already been carried out and a development consent can never retrospectively approve the carrying out of development. 4. The application should be refused because the proposed modification application seeks to authorise building work that has already been carried out and a construction certificate cannot be issued for such work under section 109F(1A) of the EP&A Act as continued by clause 18[A] of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017). 5. The application must be refused as the proposed modification application does not adequately manage visual privacy impacts between the subject dwelling and 95 Louisa Road, Birchgrove, and this is not capable of being resolved by condition. 6. The application must be refused because the proposed setback to 95 Louisa Road, Birchgrove is reduced, that reduction creates an unreasonable sense of enclosure and that reduction does not facilitated an appropriate separation between buildings. 7. The application must be refused because the existing built form of the subject dwelling does not align with the built form that is proposed to be approved and no proposal for demolition and remediation has been made. 8. The application must be refused because the proposed dwarf walls with associated glass balustrades on the roof terrace of the subject dwelling would have an unacceptable view impact in relation to 91 Louisa Road, Birchgrove. 9. The application must be refused because it is unclear whether the existing large wood fired oven on the basement level of the subject dwelling, which has been constructed without approval, is to be removed, and its retention would have unacceptable impacts in terms of built form mass, smoke, fire safety and intensity of use.
When the Council's SOFAC in the General Modification Appeal is considered these issues are not raised. Issues 1-4 and 7 are legal issues. Issues 5, 6, 8 and 9 are merit matters.
The Applicants for joinder relied on Arrage in respect of the "substantially the same" test raised in contention 1 in the General Modification Appeal.
The Council has failed to raise the merit issues in the proposed contentions and the Applicants for joinder will provide evidence, including expert evidence, in relation to those matters.
In the General Modification Appeal, the Council's only real contention is that the modifications do not have a minimal environmental impact. The rest of its contentions are flagged as contentions that may be resolved by conditions of consent. The Applicants for joinder take a very different view.
What has been built is different to that approved by the development consent. The work undertaken by the Applicant consists of work approved by D/2018/25, work built without approval the subject of the two modification appeals and work built without approval which is not referred to in the general modification application.
Contention 4.3 in the General Modification Appeal is insufficient. The Applicant should have provided documents showing what has been erected, what will be removed or remediated, and what will be new. The modification application should have been accompanied by evidence that the buildings will be compliant with the BCA or otherwise safe or, alternatively, a BIC.
In short, the Applicants for joinder submitted that they will make submissions and adduce evidence which the Council will not in relation to complex issues of fact and law. These matters require more than the Applicants for joinder simply addressing the Court during a hearing to which they are not a party. These matters require complex submissions on the law by a legally represented party as well as expert evidence, which the Applicants for joinder stand ready to produce. This provides a basis for joinder under s 8.15(2)(a).
In reply submissions, the Applicants for joinder argued that the steps taken by the Applicant, as detailed in Mr Tyrell's affidavit, provide further evidence that the Applicants for joinder should succeed. Without their application, none of the issues now being raised in the proceedings would have arisen. The Council has been blind to those issues. If the applications are amended along the lines in Mr Tyrrell's affidavit, the Applicants for joinder should be a part of proceedings to press their concerns around such issues as they were not originally raised by the Council. However, even if the plans were amended as outlined in Mr Tyrrell's affidavit, the Applicants for joinder would still be pressing for joinder as those amendments do not address all of their proposed contentions. For example, there is still disagreement about the pizza oven and it is no answer to assert at this stage of proceedings, as the Applicant does, that the oven is exempt or complying development. There will also still be outstanding issues in relation to the setback.
The Applicant may argue that the lift overrun modification is de minimis, but small physical changes can still produce large qualitative changes. The Applicants for joinder are arguing the latter.
The Applicants for joinder require legal representation as parties to proceedings to address the jurisdictional requirements in s 4.55(1A). Legal submissions by objectors in Class 1 proceedings are often the subject of objections.
In relation to s 8.15(2)(b) the Applicants for joinder submitted that this limb is satisfied in the alternative. This limb has two sub-parts: the interests of justice and the public interest. The Applicants for joinder submitted that rather than pursue certiorari in the Court of Appeal in the absence of joinder, they could simply be joined to proceedings now. Given s 56 of the Civil Procedure Act 2005 (NSW), this should count in favour of the joinder application under consideration of the public interest and interests of justice. There is also no proof that the building is compliant with the BCA and therefore safe - and there cannot be such proof in the absence of a construction certificate - warranting maximum scrutiny and therefore weighing in favour of joining the Applicants for joinder who will raise such issues.

Applicant submissions

There are a number of reasons why the issues raised by the Applicants for joinder can be sufficiently raised without joinder.
No issue that should be raised specifically by a party to proceedings has been identified. The planner Mr Cirillo can make submissions on behalf of the Applicants for joinder in any event at the s 34AA conciliation conference.
The Commissioner hearing the Class 1 appeals must be satisfied of the matters in s 4.55(1A). The Commissioner must also consider the reasons for the original grant of consent under s 4.55(3). Therefore such matters will need to be considered regardless of whether the sections are expressly raised in the SOFACs: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245. That those jurisdictional matters are not expressly raised is not a reason for joinder. In any case, no additional experts are needed to deal with the jurisdictional questions.
In relation to both appeals, reliance on Arrage is misplaced. That case involved very extensive increases in the scope of building, whereas the lift overrun modification of 470 mm is de minimis and the other modifications proposed are minor. The existing Statement of Environmental Effects in both proceedings deal with the environmental impact of the developments.
Proposed contention 5 of the Applicants for joinder in the General Modification Appeal is dealt with in the Council's SOFAC, contention 2. Visual privacy will be the subject of expert evidence.
The pizza oven in the barbecue area is exempt and complying development and is not the subject of the general modification application. This is why it is not shown on the general modification application.
The affidavit of Mr Tyrrell of 11 November 2021 (see above in [23]-[25]) confirms the Applicant's intention to ameliorate many of the concerns of the Applicants for joinder as reflected in their proposed contentions. The Applicant also plans to update the documentation in the two Class 1 proceedings to better reflect what structures are already in existence and what use is being sought in the General Modification Appeal. The Applicant submitted that only a change of use was being sought, not retrospective approval for existing structures.
In relation to interests of justice and the public interest in s 8.15(2)(b), the applicants for joinder have been given adequate opportunities to express their concerns in the original consent process and will be able to participate in the usual manner in Class 1 proceedings afforded to objectors and at the s 34AA conciliation conference. The letter of 11 November annexed to Mr Tyrell's affidavit indicates that the objectors would be invited to the s 34AA conference (see above in [24]).
The exercise of discretion weights against joinder and there is no need for a Double Bay marina order either.

Consideration

I agree with the observations of Pepper J in Barr at [49] that it is convenient to start with s 8.15(2) of the EPA Act rather than r 6.24(1) of the UCPR as the latter provision has broader reach and it is difficult to conceive of situations in which joinder would be granted under the former but not the latter.
The consideration of s 8.15(2) is a two-step process. Firstly, are the requirements of s 8.15(2) met and, secondly, if they are, does the exercise of discretion justify an order for joinder being made, see Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44]. Morrison Design at [41]-[54] identified that the section (then s 39A of the LEC Act) was not intended to be a plenary power allowing in all circumstances objectors to non-designated development to become a party to an appeal.
In the course of the hearing the Applicant's legal representative advised that the plans the subject of the appeals would be amended shortly to make clear what is sought. This appeared to be in addition to what has been identified in the amended plans referred to in the 11 November 2021 letter from the Applicant's solicitor referred to above in [24] and appears to arise in part because of the submissions on the motions of the Applicants for joinder about what can be the subject of a modification appeal. The current applications, supporting Statements of Environmental Effects and plans do not identify that approval to use structures already built unlawfully is what is being sought. While a statement to that effect was made in the course of the hearing the current applications simply do not reflect that. As currently presented the applications appear to seek development consent for work built unlawfully which is not legally possible, see most recently Buyozo at [40]-[41] (Preston CJ). This issue is raised by the proposed contentions 4 and 5 in the Lift Overrun Appeal and the proposed contentions 3 and 4 in the General Modification Appeal. These contentions are well grounded and the Council's SOFAC at cl 4.4 in the General Modification Appeal does not clearly identify this issue, which is fundamental to the appeal as presently constituted. No reference is made in the Lift Overrun Appeal SOFAC to this issue.
The Applicant is attempting to meet some of the concerns of the Applicants for joinder according to the letter dated 11 November 2021 referring to amendment/removal of several windows causing privacy concerns. Whether these changes do meet all the privacy concerns of the Applicants for joinder is unknown. According to the 11 November 2021 letter the Applicant has also agreed not to put glass balustrades on top of dwarf walls built on the top floor thereby reducing the trafficable area to that approved by the development consent. The dwarf walls do not have development approval. What is intended for these walls if anything in the General Modification Appeal is unclear.
The Applicants for joinder also validly identify the failure of the current plans to clearly identify the work done in conformity with the development consent, the work done without development consent (for which use is intended to be applied for if an amended application is made by the Applicant) and work done without development consent which is not the subject of this appeal, namely works as executed plans identifying each of these categories. According to the Applicants for joinder the building has not been built in accordance with the development consent in several respects, some already referred to above. What the Applicant intends in relation to works undertaken without approval according to the Applicants for joinder is presently unclear.
I have identified to the Applicant that if any new plans are to be lodged in support of an application to amend plans in the appeals these must make crystal clear the work undertaken in conformity with the existing development consent, the work undertaken without the benefit of approval the subject of the modification appeal (i.e. the building work for which approval to use is intended to be sought), and any work undertaken without the benefit of approval but not the subject of the modification appeal. This is to ensure that the Commissioner hearing the matter can be clear about what the appeals are about, assuming that leave to rely on amended plans is made and granted, a matter for another day.
Considering the additional jurisdictional matters identified by the Applicants for joinder in the Lift Overrun Appeal, namely s 4.55(1A)(a) and (b) in proposed contentions 1, 2 and 3 these are not all identified in the Council's SOFAC or if identified are not in the terms the Applicants for joinder seek to put. The Applicant's assurance that in any event the Commissioner presiding at the s 34AA conference and any hearing will have to direct their mind to these matters can provide little comfort to a party seeking to join if it appears that no other party will be presenting evidence and making submissions to assist the Commissioner hearing the matter on relevant jurisdictional matters. The Applicants for joinder are able to provide evidence of a town planning expert which will address these issues.
As to merit issues sought to be raised in the Lift Overrun Appeal, the principal one is the impact on 91 and 95 Louisa Road which is not identified in the Council's SOFAC in its contention identifying unacceptable height, bulk and scale.
Turning to the additional jurisdictional matters identified by the Applicants for joinder in the General Modification Appeal, namely proposed contentions 1 and 2, these do not appear in the Council's SOFAC.
Allied to the inadequacy of the current plans of the Applicant is the issue of the side setback for the building as constructed, which according to the Applicants for joinder does not comply with approved setback distances, the subject of proposed contentions 6 and 7 in the General Modification Appeal. This issue is not raised in the Council's SOFAC.
Proposed contention 8 in the General Modification Appeal concerns the dwarf walls with glass balustrade and the impact of these on 91 Louisa Road Birchgrove. As noted above in [24(5)] the Applicant's solicitor has very recently advised that his client will no longer seek approval for the glass balustrade. What is proposed for the existing unauthorised dwarf walls is unclear. The contention may be amended if the Applicant's position becomes clearer. The Council's SOFAC do not identify this issue.
According to the Applicants for joinder a large pizza oven has been built on the ground floor and contention 9 refers to this. The Applicant submitted that the oven is exempt and complying development and does not form part of the appeal. The plans presently lodged in the appeal identify a barbecue on the ground floor as new work as I understand it. Whatever the legal issue with the oven it is not a matter identified by the Council and has potential for impact on the use of the neighbouring property.
I consider that the Applicants for joinder will raise issues that should be considered in relation to the appeals and would be unlikely to be sufficiently addressed if the Applicants for joinder were not joined as a party. I also consider the interests of justice are served by the making of such orders in both proceedings.
As I have granted joinder under s 8.15(2) of the EPA Act I do not need to consider r 6.24 of the UCPR.

In proceedings 2021/156562 1. Pursuant to order 1 of the notices of motion dated 26 October and 8 November 2021 Joseph Macri and Henry Cheung are joined as the second and third respondents to the proceedings No 2021/156562 under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW). 2. Pursuant to order 2 of the notices of motion dated 26 October and 8 November 2021 in proceedings No 2021/156562, leave is granted for Joseph Macri and Henry Cheung to file and serve a statement of facts and contentions raising the contentions set out in the schedule attached to the notices of motion dated 26 October and 8 November 2021 within seven days of the date of these orders. 3. Pursuant to order 3 of the notices of motion dated 26 October and 8 November 2021 in proceedings No 2021/156562, leave is granted for Joseph Macri's and Henry Cheung's town planner, Giovanni Cirillo, under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) to: 1. file and serve the individual expert report prepared by Giovanni Cirillo and annexed to the affidavit of Joseph Macri dated 22 October 2021; and 2. participate in any joint conference between the Applicant's and the Respondent's town planning experts and the preparation of a joint report arising from the same.

In proceedings 2021/276619 1. Pursuant to order 1 of the notices of motion dated 26 October and 8 November 2021 Joseph Macri and Henry Cheung are joined as the second and third respondents to the proceedings No 2021/276619 under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW). 2. Pursuant to order 2 of the notices of motion dated 26 October and 8 November 2021 in proceedings No 2021/276619, leave is granted for Joseph Macri and Henry Cheung to file and serve a statement of facts and contentions raising the contentions set out in the schedule attached to the notices of motion dated 26 October and 8 November 2021 within seven days of the date of these orders. 3. Pursuant to order 3 of the notices of motion dated 26 October and 8 November 2021 in proceedings No 2021/276619, leave is granted for Joseph Macri's and Henry Cheung's town planner, Giovanni Cirillo, under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) to: 1. file and serve an individual expert report; and 2. participate in any joint conference between the Applicant's and the Respondent's town planning experts and the preparation of a joint report arising from the same.

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: 18 November 2021

(2018) 233 LGERA 170

(2006) 150 LGERA 362

(2021) 248 LGERA 300

(2007) 159 LGERA 361

At a glance

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