Blackmore Design Group v Council of the City of Sydney

Judgment 1Blackmore Design Group (Blackmore) has appealed under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by the respondent Council of a development application D/2012/1584 for the conversion of an existing warehouse building addressing William Street to residential use and construction of a new apartment building with shared basement parking addressing Pitt Street, at 52-54 Pitt Street Redfern (the site). The part of the site at 52-54 Pitt Street is presently used as a car park. 2Blackmore lodged its development application on 15 October 2012. The Class 1 appeal was lodged on 27 September 2013. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act), conducted by a different Commissioner, was held on site on 16 December 2013. The conciliation conference was subsequently terminated. On 16 April 2014 the matter was fixed for hearing on 10 and11 July 2014, with directions for provision of expert and other evidence. On 6 May 2014 the applicant was granted leave to rely on amended plans. On 19 June 2014 the timetable for filing an amended Statement of Facts and Contentions, and for expert conferencing and reports, was varied, and the hearing dates of 10 and 11 July 2014 confirmed. 3On 9 July 2014 Ms Donna May Bolinger filed a Notice of Motion seeking to be joined as a party to the proceedings, or in the alternative, to be granted leave to intervene and appear in the proceedings, with that leave being limited to: (a) being represented by counsel at the hearing for the purposes of tendering and objecting to evidence, making submissions, and cross examination of the other parties' experts on the issues of the proposed development's overshadowing and visual privacy (overlooking) impacts on the amenity of 56 Pitt Street Redfern; (b) relying, at hearing, on the written expert opinion evidence; (c) such other matters as the Court hearing the matter may allow. 4The application was supported by an affidavit sworn by Ms Bolinger on 8 July 2014, in which she states that she objects to the impact on her home, the heritage listed end of row terrace; that she has been involved with this matter since 2010; that she has spent a lot of her own money over the years obtaining expert evidence, and initially engaged Ms Jennifer Hill as her expert in the earlier proceedings; that the impact on her property includes solar, privacy, acoustic, loss of amenity and potential undermining of the foundation and general damage to her property; and that her property was the first town hall of Redfern and is a heritage item. 5The application for joinder was heard at the commencement of the hearing in Court after the site view on 10 July 2014. Ms Bolinger was cross examined on her supporting affidavit. The application was refused, and in order not to delay the hearing, I indicated that reasons would be provided later. These are those reasons. 6Ms Bolinger owns 56 Pitt Street Redfern, which adjoins the southern boundary of the Pitt Street part of the site. Ms Bolinger was granted leave to intervene in an earlier appeal concerning the site, proceedings 10740 of 2011 (Norfolk (Redfern)Pty Ltd v Sydney City Council [2012] NSWLEC 1012), on the limited basis of matters relating to the overshadowing and visual privacy (overlooking) impacts of the development in the form then proposed. The decision of Morris C in that earlier appeal records that Mr Andrew Duggan, who provided town planning evidence on behalf of Ms Bolinger, provided an individual report and participated in a joint report with Ms Brennan, the town planning expert retained by the Council. 7The site view on the morning of the first day of the hearing in this appeal included evidence from seven objectors, including Ms Bolinger. Ms Bolinger's evidence on site included historical and heritage issues as related to amenity; the history of 56 Pitt Street and the grape vine planted 130-140 years ago; the reduction or removal of her amenity and views of the streetscape; and concerns as to loss of sunlight. The view included the courtyard inside her property along the northern side of her house, a grape vine growing the side wall of the house, the living areas along the northern side of the house, and a former laundry building at the rear of the property adjoining the warehouse on the subject site. 8Ms Bolinger was cross examined on her affidavit. Her evidence was that she had received notification of the hearing within two weeks of it being sent, and had known about the hearing for some months, and that she had discussed the application with her lawyer. Ms Bolinger agreed that she was aware of her rights, having intervened in the previous hearing. She agreed she had involved a heritage expert and a planning expert in relation to her concerns with the development, with submissions to the Council in 2012, however that did not relate to the plans in their current form. When questioned why she had waited until the afternoon before the hearing to make the application for joinder, Ms Bolinger stated that she had been told by the Council last week, in a meeting with other residents at the Council offices, that the current plans increase the FSR and therefore there was a planning aspect to her concerns; she had not filed the application last week because she had to prepare it. She has a report that has found errors in estimating solar impacts. Ms Bolinger agreed that geotechnical issues, and privacy and overshadowing, had always been part of her concerns. 9Ms Bolinger's representative submitted that Ms Bolinger is the owner of the property that is most impacted by the proposed development; she has recently become aware of changes which will affect her property; and she wants the opportunity to be involved if the Council and Blackmore reach agreement. She wishes to have the opportunity to reply to matters that might be raised in the evidence. Ms Bolinger's representative clarified that she is seeking to make submissions, not to cross examine witnesses, to provide additional documents, being a report by Mr Andrew Duggan, shadow diagrams, and a letter from a heritage expert. Ms Bolinger's representative has not seen that latter document; the documents had not yet been provided to the parties and could be provided by the afternoon. In terms of discretion, Ms Bolinger is significantly impacted, and has knowledge of that impact, and can provide assistance, and as a matter of natural justice should be heard. 10The Council neither supported nor opposed the application. 11Blackmore opposed the application, submitting that there is no proper evidentiary basis for the making of either order, and that as a matter of discretion, the application should be refused. Ms Bolinger has had the level of involvement provided for by the legislation, including having been notified of the application, retaining experts who have made submissions to the Council, viewing of the amended plans and making further submissions, and the usual right of objectors in Class 1 appeals to tell the Court of her concerns. In relation to the issues referred to in paragraph 5 of her affidavit, the geotechnical issue is the subject of a proposed condition, and the other issues have been considered by the Council and the parties' experts. All the issues raised can be dealt with by those experts in their evidence, and there is nothing that Ms Bolinger could add that would not be sufficiently addressed by the six experts retained by the parties. Blackmore has not seen any of the reports, and it is not known whether they could be dealt with in the confines of the hearing time allocated, and it is likely that the hearing would need to be adjourned or extended. It is unfair on the applicant to bring the application so late. There is no need for a Double Bay Marina order because the experts can address the issues.