HER HONOUR: By notice of motion filed on 17 May 2022, Julie-Anne McMillan of 16 Olphert Avenue, Vaucluse, Frances Ezra and Jack Ezra both of 20 Olphert Avenue, Vaucluse ‑ collectively referred to as the Interveners ‑ seek to be joined as parties to the present class 1 proceedings.
The present class 1 proceedings have been brought by the Applicants with respect to the refusal by the Council of a development application relating to the premises at 18 Olphert Avenue, Vaucluse, the Development Land. Each of the Interveners' premises adjoins the Development Land. At the time of the bringing of the notice of motion, the Applicant had been granted leave on 8 April 2022 to rely upon amended plans, the revision F plans. At the time of the bringing of the notice of motion, the Applicants and the Council were in substantial default of the Court's directions insofar as the requirement to file and serve a statement of facts and contentions by 21 April 2022 and a statement of facts and contentions in reply by 5 May 2022 together with other directions. Independent of this notice of motion, this state of affairs should be regarded as completely unacceptable.
Late on the evening prior to the hearing of the notice of motion, the Council filed a statement of facts and contentions. I subsequently adjourned the hearing of the notice of motion and made directions relating to requiring the Applicant to file a statement of facts and contentions in reply and requiring the Council's recently retained town planning expert, Mr Nash, to confirm what his position would be in connection with the issues raised in the Council's statement of facts and contentions.
By the hearing of the notice of motion on 30 May, these directions have been satisfied.
In addition, the Interveners have filed a statement of facts and contentions identifying the issues that they have contended they would seek to raise if joined as a party to the proceedings. The Interveners each swore an affidavit in evidence in the proceedings. The evidence attested to:
1. The Interveners' concerns as to the unsatisfactory assessment of the development application as it had been processed through the Council;
2. The issues that remained for assessment that had not been satisfactorily addressed by the Council; and
3. Their concerns that unless joined, they would not be able to adequately convey to the Court the issues that concerned them. In particular, none of the Interveners felt sufficiently confident to personally speak on their own behalf at the hearing.
Annexed to these affidavits were the Interveners' submissions as originally made to the Council. Each of the Interveners had retained expert town planners who had prepared detailed reports relating to the substance of the objections to the development application. A view impact report had also been prepared on behalf of the Ezras. The planning panel assessment and the Council officer's report to the planning panel was also in evidence.
The Interveners seek to be joined as a party to the proceedings pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) which provision is in the following terms:
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.
The consideration of an application under s 8.15(2) is a two‑step process to determine whether the requirements of s 8.15(2) are met and, next, whether an order for joinder is justified in the exercise of the Court's discretion (see Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at 44).
The Interveners' primary basis for seeking an order is that raised in accordance with s 8.15(2)(a) they assert that they are able to raise an issue that should be considered but is not likely to be sufficiently addressed if they are not joined as a party in relation to the matters that they have identified in their statement of facts and contentions. The Interveners accepted that these contentions, apart from their contention that related to the impacts upon their neighbours, had largely been raised in their submissions to the Council. The Interveners, if joined, propose to participate in the conciliation component of the s 34AA hearing and if not resolved at that stage to call expert town planning evidence to address these issues, to cross‑examine the Council and Applicant's experts and make submissions in support of the refusal of the DA.
Whilst the list of issues the Interveners seek to raise is lengthy, the primary focus of the Interveners' submissions was that the impact of the DA upon their amenity including privacy, outlook and views. In addition, there were issues that raised what were described as mixed questions of fact and law relating to encroachments on the Ezra land that raised issues of owner's consent and issues relating to the appropriateness of the cl 4.6 objection to height.
Whilst the Interveners accepted that some of the merit matters had been raised in the Council's contentions, it was submitted that the Council raised those issues only broadly, whereas the Interveners raised the issues more specifically. In addition, there were particular aspects of some of the issues that the Council had not raised at all notwithstanding that such issues had been the subject of lengthy and detailed submissions by the Interveners. The Interveners had no faith that the Council would sufficiently deal with the issues in light of the history of the matter particularly where they there were complicated issues of fact and law. Absent their intervention, the issues identified by them could not be sufficiently raised.
Further, it was in the interests of justice to be joined as absent joinder, the Interveners would be deprived of the opportunity to adequately put their case. Further, the Interveners submitted that they should be joined pursuant to s 8.15(2)(b) as it will be both in the interests of justice and the public interest for the Interveners to be joined as the Interveners being adjoining landholders will be materially affected by the DA and their interest will be affected.
In Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361, Preston CJ of the LEC considered the proper approach the question of joinder pursuant to the power as it then was provided for in s 39A of the Land and Environment Court Act 1979 (NSW). The provisions of s 39A were in identical terms to that now contained in s 8.15(2) and, therefore, remain apt. His Honour observed at para 43:
[43] The legislature has drawn a distinction between the two types of development, designated another development, and the rights of public participation including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering exercising a power under s 39A. The power under s 39A is not intended to be a plenary power to allow in each and every circumstance objectors to non‑designated development to become a party to appeals under s 96, 96AA, 96A and 97 by dissatisfied applicants for or holders of development consent. Rather, the circumstances in which the Court may order a person to be joined as a party to proceedings of the type in s 39A are limited to the circumstances in paras (a) and (b) of s 39A. It is to those paragraphs therefore that I turn.
His Honour then further observed at paras 53 and 54:
[53] A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue to arguing its particular submission.
[54] The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and 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 persons 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 proceedings.
Adopting the principles outlined above in Morrison, the Interveners' application for joinder in these proceedings should be dismissed. In this case, the Interveners have raised for the process of community consultation the issues they now seek to raise in these proceedings if they are joined. Those issues were the subject of lengthy and detailed submissions made through lay and expert evidence submitted on behalf of the Interveners. It is apparent from the report to the planning panel and the decision of the planning panel that those submissions were considered and to some degree adopted by the Council in its refusal of the DA. The decision and the reasons for refusal adopted by the planning panel have now been adopted by the Council as the reasons for refusal in its statement of facts and contentions. The fact that not every submission made by the Interveners was referenced or adopted by the Council in the statement of facts and contentions is not sufficient to warrant joinder. It was, as stated in Morrison, part of the assessment process anticipated by the legislation. The provision in s 8.15 requires the identification of an issue that "should be considered" not merely an issue that a person considers desirable to be considered.
To the extent the Interveners remain of the view that issues raised by them are important to the merit consideration, the issues that were not embraced by the Council can be raised before the Commissioner in the same manner through the submission process without the need to be joined. Further, the Court will take a site inspection of the Development Land and the Interveners' premises in the presence of the parties and the Interveners. At that stage, the Court will have the opportunity to hear from the Interveners as to the particular concerns they raise as to the impacts upon their amenity and the issues relating to the DA more generally.
In addition, the Court will have, as did the Council, the detailed written objections to which it will have regard in the determination of the DA. To that extent, the issues raised by the objectors can be satisfactorily raised.
Further, the Court will be required to be satisfied of any jurisdictional pre‑condition to the exercise of its powers. In this regard, the submissions made by the Interveners have raised the issue for consideration and are matters that the Court is entitled to take into account. Joinder of the Interveners is not required to enable the Court to be so satisfied.
Having regard to the nature of the issues raised, I am not satisfied that there is any issue that should be considered in relation to the appeal but would not likely to be sufficiently addressed if the Interveners were not joined as a party.
Further, for the very same reasons, I consider that neither the interests of justice nor the public interest warrant the Interveners being joined merely on the basis that they are affected by the DA or are able to raise issues that relate to the public more generally.
To the extent that the Interveners are concerned as to their individual capacity to make oral submissions at the hearing, appropriate arrangements are able to be made to ensure that they are adequately represented at the hearing, to ensure that their interests are expressed in a meaningful and understandable fashion.
For those reasons, I am not satisfied that the Interveners satisfactorily demonstrate a basis for joinder pursuant to the provisions of s 8.15(2) and, therefore, I need not move to the exercise of my discretion more generally.
Accordingly, I order that:
1. The notice of motion filed on 17 May 2022 be dismissed; and
2. The exhibits, except exhibit C, are returned.
I direct that the parties collect from my associate within seven days the exhibits to the proceedings.
[2]
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Decision last updated: 04 August 2022