HER HONOUR: The present proceedings is a Class 1 appeal against the Council's refusal of a development application for a dwelling house at 18 Olphert Avenue, Vaucluse in the municipality of Woollahra. By Notice of Motion filed on 21 July 2022, five people seek to be joined as intervenors in these proceedings (the Intervenors). Each of the five persons are the owners of premises that adjoin the premises at 18 Olphert Avenue, Vaucluse.
Three of the current Intervenors, being Mr and Mrs Ezra and Ms McMillan, had previously sought to be joined in the proceedings. That application was dealt by me in proceedings known as Campbell Taylor v The Council of the Municipality of Woollahra [2022] NSWLEC 96. I refused their application to be joined but made directions in relation to providing an adequate opportunity for those persons, both through themselves, their legal representatives, and expert witnesses, to provide material to the Commissioner at the hearing of the onsite component of the s 34AA hearing.
In this Notice of Motion there are an additional two further neighbours, Ms Stephens at 77A Hopetoun Avenue and Mr Hammond at 77 Hopeton Avenue, Vaucluse, who now also seek to be joined in the matter of proceedings.
I rely on the facts and background matters identified by me in my pervious decision, without repetition.
Since the time of my previous judgment, a Commissioner has been appointed to hear and determine the matter. They have taken a site inspection in the company of the parties. At the site inspection they heard from: residents, including the current Intervenors with the exception of Ms Stephens; and from experts and legal representatives appointed by the previous Intervenors, being Mr and Mrs Ezras and Ms McMillan.
Further, the Commissioner received written material from both the experts and the legal representatives of Mr and Mrs Ezra and Ms McMillan and has received information in relation to submissions made to the Council in support of all of the objections to the development application.
I am advised that the component of the hearing, where the neighbours were submitting to the Commissioner and the Commissioner took a view which took a good part of the first day of the hearing. Subsequent to the public component of the hearing, the parties moved into conciliation.
As a consequence of the conciliation, I am advised that some amendments have been effected to the plans, with the result that a new set of plans known as revision H have been provided to the Council. The Council has granted consent to the amendment of the plans to reflect revision H and that those plans have been uploaded onto the state government planning portal.
With the provision of those amended plans, I am further advised that the parties have now come to an agreement and will be requesting that the Court move on the agreement which incorporates the provisions of the exhibit H plans together with conditions of consent.
The Intervenors now wish to be joined in the proceedings so that they may participate further in the proceedings and, from the evidence of Mr Neil, the Intervenors propose to call evidence and make submissions supporting a refusal of the application rather an approval either by agreement or by the Court.
The Intervenors, by affidavits, each gave evidence with the exception of Ms Stephens who gave evidence through her partner Mr Rutter. Each of the Intervenors identified matters that either remained issues of concern to them or reflected changes between the revision F plans and the revision H plans.
Notwithstanding the large volume of evidence that was adduced on this Notice of Motion, to the extent that the Intervenors identify what they consider to be changes in relation to the exhibit H plans, they were unable to identify such changes in terms such that the nature and extent of the concern could be ascertained. The extent to which the complaint was fully ventilated at the s 34AA hearing or was a new matter arising from the amendment was unclear.
In addition, evidence was adduced by two affidavits from the solicitor for the Intervenors. An expert report, prepared by an engineer Mr Bartolome. He opined in relation to the adequacy of the stormwater in circumstances where he was neither provided with proposed conditions of consent, nor had he assessed in his expert report the difference between the current situation and what was proposed in the development application.
The applicant for development consent tendered the agreed conditions which were proposed to be incorporated upon any development consent, together with evidence that the applicant for development consent had sought easements for drainage through properties downstream of the subject site, and that such request had been denied.
In this case, the Intervenors submit that they should be joined as parties to the proceedings, pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). They rely both upon the provisions in s 8.15(2)(a) and both limbs of s 8.5(2)(b). The Intervenors submit that when one has regard to the provisions of s 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which provides:
(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner -
(a) must dispose of the proceedings in accordance with the decision, and…
Where there is insufficient evidence before the Commissioner, in relation to a particular issue, the Commissioner would be unable to determine for themselves whether the decision they were being asked to make was one that could have been made in the proper exercise of their functions.
The Intervenors identified six factors, which they said arose in the present application that they relied upon as identifying a relevant matter under s 8.15, being a matter to which the Commissioner would need to be satisfied and which would affect the decision as to the proper exercise of the Commissioner's functions. Those six factors were:
1. Stormwater;
2. The encroachment of the eaves from 77A upon the developments site;
3. Excavation of the developments site, in so far as it has been "increased" between the revision F and the revision H plans;
4. Issues relating to the retention or impact upon the retaining walls at 16 Olphert Avenue;
5. The issues in relation to the boundary wall at 20 Olphert Avenue, being an assertion that the revision H plans increase the height of the boundary fence between 20 and 18 Olphert Avenue; and
6. Acoustic and visual privacy at 20 Olphert Avenue, arising as a consequence of amendments to the revision H plans.
These factors are said to be the factors that engage s 8.15(2).
The applicant for development consent submitted for the same reasons as I identified in my earlier decision, that the Intervenors have not demonstrated that they should be joined in the proceedings. They submitted that the Court was able to address the issues that had been raised, and the six factors identified, and they were in large part issues of merit upon which the Intervenors had had the opportunity at length to address the Commissioner and make submissions to the Court. Therefore, they were not matters that warranted the engagement of the jurisdiction under s 8.15(2) on any of the heads of consideration in that section.
The applicant for development consent also indicated through the representations that were made by the Intervenors at the hearing that they have been heard and provided their concerns in such a manner that the Commissioner could now be satisfied that all issues raised by them had been sufficiently addressed.
In addition, the applicant for development consent identified a concern that the Notice of Motion was an abuse of process, as at least three of the five Intervenors had made a similar application. Upon me raising with the solicitor for the applicant for development consent that I consider that there had been a relevant change in circumstances by the fact there were two new Intervenors, and that there had been identifiable changes to the plans between revision F and revision H, the solicitor no longer pressed the issue of abuse of process.
Having regard to the evidence and the submissions, I adopt the reasoning identified by me in my earlier judgment of [13]-[20], without repetition. I am reinforced in the findings I made that the Intervenors should not be joined by the fact that the Intervenors have since had the opportunity for extensive participation in the hearing process before the Court. Not only were they able to address the Commissioner at the hearing and take the Commissioner on the site inspection to areas of particular concern, they also had the opportunity, which they took, of providing written expert reports and having their experts address the Commissioner on site.
In addition, they were represented by senior counsel at that time, who made submissions in relation to the concerns and relation to legal impediments. In addition, with the Commissioner's leave, provided written submissions in connection with those legal points.
Further, the six issues that have now been identified are not issues that for the purposes of s 8.15(2)(a) should be considered in relation to the appeal, that would not be likely to be sufficiently addressed if the Intervenors were not joined.
In relation to the issue of stormwater, it was a matter that was raised at the onsite hearing. As a consequence of the evidence at the onsite hearing, the stormwater plans have been updated. The Council has, in consideration of the stormwater plan, composed a condition which is intended be imposed upon the development consent which would ensure that the amount of stormwater leaving the site is if not reduced, not increased as a consequence of the development. It incorporates considerable rainwater tanks for reuse onsite. In those circumstances, I am not satisfied that this is not a matter that the Commissioner is able to take into account sufficiently, having regard to the evidence taken on site, and the material now available including the conditions of consent.
The second issue dealing with the issue of encroachment is really a civil dispute between two adjoining neighbours. It is no part of this development application that the eaves, which are said to encroach upon the development land, be removed. To the extent that the owner of the eaves wishes to retain them, there is a parallel system which would enable the application to be made, heard, and determined. This is not a matter for the determination by the Commissioner at a s 34AA hearing. It is a matter which is for resolution between the two independent parties.
In relation to the issue of excavation being increased under the revision H plans, senior counsel for the Intervenors was unable to identify whether it was in fact an increase in excavation and the extent to which such excavation would impact on his client's property. It appears, contrary to the assumptions that the Intervenors have made, that what the applicant for development consent has done is to quantify the cut and fill so as to ensure compliance with the Council's controls.
In relation to this issue of the retaining wall, the Intervenors were unable to identify what the change was in the revision H plans, that would have a risk in relation to their retaining walls. It appears, at least from the submissions for the applicant for development consent, which were not disputed by senior counsel for the Intervenors, that the only difference is that the works adjacent to the retaining wall, which were proposed in the revision F plans and that was said to impinge upon the retaining walls structural capacity, have been removed in the revision H plans. I further note that it is proposed in the proposed conditions of consent that there be dilapidation reports and protection of structures on adjoining lands. As such the interests of the Intervenors in relation to that retaining wall have been sufficiently addressed, so that no joinder by the Intervenors is warranted.
The second last matter deals with the increase in height in the fence. The Intervenors, in my respectful view, consider that there has been an increase in the boundary fence because they are measuring the fence from their side of the boundary. I was assured that there had been no change to the height in the fence between the revision F and the revision H plans. The fence had always proposed and remained proposed as being no higher than being 1.8m above the height of the land at the development land side of the fence, as opposed to measuring it on the Intervenors' side of the fence. Senior counsel for the Intervenors was unable to demonstrate that that position as put by the solicitor for the applicant for development consent was incorrect. There had been no material change.
The issue of view impacts and adverse amenity impacts had been addressed before the Commissioner at the previous onsite hearing.
In relation to acoustic and visual privacy, this concern related to amendments to the roof terrace. The Intervenors were unable to identify in any material way what those changes were to the extent that they had an effect as demonstrated in the revision F plans. The solicitor for the applicant for development consent and senior counsel for the Intervenors ultimately agreed that the change to the roof terrace was to set it further away from the Intervenors, by an amount of approximately 1m, to the balustrade. The solicitor for the applicant for development consent also indicated there was a planter behind the balustrade which would further offset viewers using the roof terrace from the Intervenors' land. To that extent, the Commissioner at the onsite hearing heard about the concerns and is able to address whether this is a neutral or beneficial change to the roof terrace by setting it further back from the Intervenors' property.
In my view, whilst I sympathise with the Intervenors that they remain concerned in relation to the development and they are staunchly opposed to the approval development on merit, those matters have all been raised before the Commissioner. There is no further identified matter that should be considered in relation to the appeal but would not likely be sufficiently addressed if the Intervenors were not joined as a party.
In respect of the interests of justice, it was suggested that it was in the interests of justice that these Intervenors be able to participate in the proceedings to the extent of calling evidence, making submissions and cross-examining, as they were adjoining owners. I do not consider that there was any matter which is identified in that concept which I have not already addressed in relation to the matters upon which I expressed my findings in relation to s 8.15(2)(a) that would warrant them being joined in the interests of justice as identified.
To the extent that the public interest was relied upon, it was said that adjoining owners upon whose land which a development had an impact should be able to participate in the proceedings, and that was in the public interest. I consider that submission to be contrary to the legislative scheme. The legislate scheme, as quoted in my earlier judgment at [13]-[15], identifies that the legislation has provided a means for neighbours to participate in the development application process, through the provision of community consultation. Each of the Intervenors took advantage of that. There needs to be something more in the context of public interest under s 8.15(2)(b)(ii) in my opinion, in order for it to warrant the joinder of a person in the proceedings.
For those reasons, I am not satisfied that the Intervenors have satisfied a ground under s 8.15 for joinder. Therefore, I do not need to move to the more general discretionary considerations of the two-step process.
The applicant for development consent initially sought costs of the Notice of Motion, however that application was withdrawn and, therefore, I will not make an order for costs.
The Court orders:
1. The Notice of Motion is dismissed; and
2. The s 34AA conciliation conference be relisted before the Commissioner at 4.15pm on 9 August 2022.
[2]
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Decision last updated: 18 August 2022