[2007] NSWLEC 802
Suh v Liverpool City Council (2016) 216 LGERA 84
Source
Original judgment source is linked above.
Catchwords
[2007] NSWLEC 802
Suh v Liverpool City Council (2016) 216 LGERA 84
Judgment (2 paragraphs)
[1]
EXTEMPORE JUDGMENT
HIS HONOUR: By Notice of Motion filed on 2 November 2020, the Lower Ocean Avenue Double Bay Concerned Residents Association Incorporated (the Applicant for Joinder) seeks to be joined as a party to these proceedings pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act).
The orders that are sought in the Notice of Motion comprise, first, an order that the Applicant for Joinder be joined pursuant to the provision; second, that if joined, they file a Statement of Facts and Contentions in the form that has been provided to me in a document which appears behind Tab 4 of Exhibit A on the motion - there being documents exhibited to the affidavit of Mr Matt Sonter of 2 November 2020; Mr Sonter being the Applicant for Joinder's legal representative in these proceedings.
The third order sought is that the Applicant for Development Consent is to provide to the Applicant for Joinder any amended plans or information to be relied upon at the s 34 conciliation conference presently listed to be held on 10 November 2020.
Mr O'Gorman-Hughes, counsel appearing for the Applicant for Development Consent, has indicated not only, as I understood him, that there is no objection to that third order, but also that there is no objection to the effect of that order being made, even if Ms Nurpuri, counsel for the Applicant for Joinder, is unsuccessful in having her client joined as the Second Respondent - that is, that the documents to which access is sought will be provided whether or not joinder is effected by this decision.
The relevant provision of the EP&A Act that I need address sets out a number of potential bases upon which joinder may be ordered. They are, in s 8.15(2)(a):
That the person is able to address 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.
There are then, in s 8.15(2)(b)(i) and (ii), two other bases upon which joinder could be effected, but they are of a much more broad policy nature than presently arise for my consideration. The application for joinder has only been put on the basis of what might be described as the above "sufficiently addressed" element of the power to join, and I propose to deal with it on that basis.
The matters that are set out in the draft Statement of Facts and Contentions for the Applicant for Joinder raise five matters. The first three of them may be broadly described as jurisdictional matters, whilst the fourth and fifth of them can be described as inadequate merit consideration matters. It is sufficient for present purposes that I address the fourth and fifth of the issues immediately.
The first of them is that it is alleged that the proposed development fails to promote good design and amenity of the built environment in accordance with the objectives of the EP&A Act, whilst the second is that the proposed development should be refused because it results in unacceptable privacy and acoustic impacts on the common property of an adjoining site. Those, it seems to me, are classic merit matters of the nature dealt with by the Chief Judge of the Court in Morrison Design Partnership Pty Limited v North Sydney Council and Another (2007) 159 LGERA 361; [2007] NSWLEC 802 (Morrison Design).
His Honour, in Morrison Design between [44] and [47], dealt with the analysis of matters where submissions and the like made by objectors to a proposed development are adequately able to be dealt with in a conventional objection process at the commencement of a conciliation conference and which, in themselves, do not demonstrate that that consideration will not be adequate to warrant joinder pursuant to what was the then provision. This was, relevantly, the same test being in the current provision for the purposes of the proceedings.
I am satisfied that the basis described by his Honour in Morrison Design is appropriately applicable to the two merit considerations that are pressed at pars 4 and 5 of the proposed contentions of the Applicant for Joinder. They do not provide any basis upon which I should order joinder.
However, the other matters are in a different category.
The first of them is a contention that the development is prohibited because the floor space ratio calculation undertaken by the Applicant for Development Consent in the material provided to the Council is not adequate; is not accurate; and, if accurate, would demonstrate that the floor space ratio provision, containing a development standard derived from cl 4.4 of the Woollahra Local Environmental Plan 2014 (the LEP), has been breached and that an application pursuant to cl 4.6 of the LEP to be permitted to depart from compliance with that development standard has not been made.
The assessment report provided by the Council's staff to the Local Planning Panel (the Planning Panel) that considered the proposed development deals with the question of floor space ratio at par 11.6 on page 470 of the Assessment Report Papers prepared for the Planning Panel on that day. It is what one might describe as laconic in the extreme. It sets out the table of the floor space ratio, the site size, the proposed floor space ratio, the control and then simply says that it complies.
In the document that is the Applicant for Joinder's proposed Statement of Facts and Contentions, there is a detailed analysis (set out on page 3 of that document in diagrammatic form) of the areas where it is said there is a deficiency in calculation - with that deficiency in calculation demonstrating that the floor space ratio is in breach of that provided for in cl 4.4 of the LEP.
I make no observation as to the merit or otherwise of either the calculations set out in the diagram at par 6 of that element of the document, nor do I make any observation as to whether or not any or all of the four areas identified in different areas of colour in that document fall within the exceptions to the calculations of gross floor area as provided for in the LEP.
It is sufficient, for present purposes, for me to be satisfied that that which is raised in that contention is a jurisdictional impediment to the granting of development consent if that which is asserted by the Applicant for Joinder is a correct analysis of the application of the relevant provisions of the LEP to the relevant plan of the proposed development.
In Crescent Newcastle Pty Limited v Newcastle City Council [2020] NSWLEC 88 (Crescent Newcastle), I dealt with the question of joinder of a community organisation to those proceedings. At [82] to [84], I indicated that, in that case, where issues of the necessity or otherwise for owners' consent were proposed to be raised, that the potential jurisdictional issues there arising were sufficient to warrant joinder to have them addressed and that that addressing would be in the public interest.
For the present purposes, I am satisfied that there is at least a significant jurisdictional issue requiring to be considered and that it would also not be sufficient, for present purposes, for that merely to be put by way of opening contribution from the objectors prior to the commencement of the conciliation conference process.
Mr Hanna, solicitor appearing for the Council in these proceedings, has not indicated that the Council adopts that contention as a matter which the Council would necessarily press as an impediment to the granting of development consent during the course of a conciliation conference.
Unlike the matter raised in Crescent Newcastle where there was a degree of novelty involved, I am not satisfied that such novelty here arises. However, I am satisfied that, given that I have concluded that it is appropriate that the Applicant for Joinder be joined, this is a sufficiently significant issue to warrant making a substantial contribution to the basis for that joinder.
The second element that is proposed to be pleaded by the Applicant for Joinder (when joined) is the suggestion that there is inadequate provision of information by the Applicant for Development Consent concerning acid sulphate soil risks associated with the extent of excavation proposed for the site.
This matter, unlike the floor space ratio issue, is one which is put in the Council's Statement of Facts and Contentions, a document filed on 8 September 2020 and which is Exhibit B before me on this motion. Contention B3 at par 9 of that document is headed "Excavation and Earthworks" and it sets out the matters that are raised as a contention by the Council as to inadequate information. It is in the following terms:
B3 - CONTENTIONS THAT RELATE TO INSUFFICIENT INFORMATION
Excavation and earthworks
9 The submitted technical documentation is inadequate to allow Council for a proper assessment to determine the impacts of the proposed excavation.
Particulars
a) The proposed development and submitted documentation fails to adequately assess whether acid sulphate soils are present and is therefore inconsistent with cl.6.1 of WLEP.
b) The proposed development and submitted documentation fails to adequately demonstrate that earthworks and excavations will not have a detrimental impact upon the surrounding environment, land uses and amenity of adjoining properties and is therefore inconsistent with cl.6.2 of WLEP.
c) The submitted geotechnical report must be prepared by a Chattered Geotechnical Engineer with NER qualification and is therefore inconsistent with objective O4 and does not comply with control C9 set out in Part B3.4 of the WDCP.
d) The proposed development and submitted documentation fails to adequately demonstrate that excavations will not have a detrimental impact upon the surrounding environment, that structural risks to adjoining structures have been minimised and that noise, vibration, dust and other amenity impacts to adjoining properties have been minimised and is therefore inconsistent with objectives O3, O4 and O5 and does not comply with control C9 set out in Part B3.4 of the WDCP.
That which is proposed to be raised by the Applicant for Joinder is in different terms to those matters which are raised both by the Council's contention and in the terms of matters discussed under 11.9 Acid Sulphate Soils, dealing with cl 6.1 of the LEP, a matter which is discussed on pages 479 and 480 of the report that was presented to the Planning Panel.
The first thing to be observed is that the inadequacy of information which is raised in the Planning Panel's report addresses the inadequacy of acid sulphate soil‑related information being to the proposed excavated depths of the proposed basement garage levels of the proposed development. There are two things to be said with respect to that.
The first is that, in addition to the garage excavation that is raised in the Council officer's report for the Planning Panel, Contention 2 raised on behalf of the Applicant for Joinder also raises other areas of excavation, being excavation for the proposed swimming pool in the development and the excavation for the stormwater works which are proposed to be associated as part of the development, if approved.
The second thing to be observed arises from the document which was provided to the Council in support of the development application is a geotechnical and preliminary acid sulfate soil investigation by Epoch Geotechnical Services dated 14 August 2020. It is in evidence before me in Exhibit A at Tab 6. That document describes, in its overview, the fact that it is prepared in support of an application for a development application for a double-storey dwelling which includes a lower ground floor level.
There is no mention, as I read that document, of excavation of the extent to which it is now proposed would be approved in the residential flat building development which is in fact the application for development being dealt with in these proceedings.
Second, the application is, as I have noted, for a residential flat building and not for a double-storey dwelling. The inadequacy of that report is clearly acknowledged to a limited extent by the Council officer in the report to the Planning Panel but not in the same fashion as has been raised by the Applicant for Joinder in its proposed contentions.
In Suh v Liverpool City Council (2016) 216 LGERA 84; [2016] NSWLEC 25, I dealt with an application for joinder by a community group seeking to oppose new licensed premises. The nature of that development is not necessary to be discussed for the purposes of these proceedings. It is sufficient to note that although, in that case, Liverpool City Council also opposed the proposed development on a basis that, in shorthand terms, might be described as the same as that being pressed by the community group, the way those matters were proposed to be addressed differed in matters of substance and, as a consequence, it could not be concluded that the issue would be adequately addressed for the purposes of s 8.15(2)(a).
The same position arises here, where I am satisfied that, although the Council has a contention relating to acid sulphate soils, the matters that are proposed to be raised by the Applicant for Joinder are sufficiently different to contribute to the case for joining that body as the Second Respondent to the proceedings.
The third basis upon which it is contended by the Applicant for Joinder that it should be joined is that which relates to the adequacy or otherwise of the compliance by the Council with the notification requirements in its Community Participation Plan. The Community Participation Plan is in evidence before me. It is in Exhibit A at Tab 7. On page 15 of that plan, there is a table which sets out the relevant applicable mandatory minimum timeframes for exhibition of various proposals.
Under the heading "Development Assessment Mandatory Exhibition Timeframes", there appears the following:
Application for development consent other than for complying development certificate for designated development or for State significant development" [being for the class of development for which consent is sought in these proceedings] "there is a minimum time period provided for in the plan of 15 days.
That time period is made a mandatory statutory requirement by virtue of Sch 1 Pt 2 cl 7(1)(a) of the EP&A Act. That requires where a relevant Community Participation Plan specifies a period of public exhibition of an application, the period must be complied with. In this case, the Council acknowledges at par 22 of its Statement of Facts and Contentions that, despite its Community Participation Plan specifying 15 days, the plans and this development application were only notified for a period of 14 days. Although that is an admission on behalf of the Council, it is, however, a matter upon which I have independently satisfied myself.
The plans were put on notification on 27 May 2020 and the period expired on 10 June 2020; that is, from a Wednesday until the second Wednesday after that date.
Section 36(1) of the Interpretation Act 1987 requires the setting aside of the first of the days of that period for the purposes of calculating the running of time. As a consequence, the Council's admission, in par 22 of its Statement of Facts and Contentions, that notification only took place for a period of 14 days is one that I am satisfied is both factually and legally correct.
Mr O'Gorman-Hughes, counsel for the Applicant for Development Consent, has taken me to discussion by Duggan J in Yarranabbe Property Pty Limited v Woollahra Municipal Council [2020] NSWLEC 122 at [31] to [35]. Her Honour's discussion there was as to whether the reasonableness or otherwise of community consultation provided a basis to permit joinder of the Applicant for Joinder in those proceedings. Her Honour held that it was not. However, questions of meeting the requirements for mandatory statutory timeframes was not a matter that was before her Honour in that instance.
I am satisfied, on the basis of Mr O'Gorman-Hughes's submissions and the material that is contained in the assessment officer's report dealing with the number of submissions that were made and the time material recording the receipt of submissions which is in Exhibit 1, being the exhibit to Mr Boskovitz's affidavit from page 104 onwards, demonstrates that a wide range of submissions were accepted by the Council during the exhibition period and, indeed, subsequently to that period.
Nonetheless, that does not set aside the question of whether mandatory statutory requirement satisfaction was necessary for 15 days rather than the 14 days which took place.
Mr O'Gorman-Hughes has submitted to me that that is a matter potentially capable of cure using the discretion vested in the Court pursuant to s 39(6) of the Land and Environment Court Act 1979. I express no view as to the validity or otherwise of that submission. It is not a matter for me to address in these proceedings at this time.
It is, however, a matter that would be necessary for the Commissioner who conducts the conciliation conference, if that conciliation conference is successful, to address in giving reasons why that Commissioner was satisfied that the agreement to which the Commissioner was being asked to give effect was one which was within the jurisdiction of the Court to make at that time.
The necessity for, and the framing of, such orders would be a matter for the Commissioner in those proceedings.
However, I am satisfied that, although not by any means determinative of this joinder application, it is a matter upon which the Commissioner would appropriately be benefited, consistent with s 8.15(2)(a) of the EP&A Act, by submissions on behalf of the Applicant for Joinder during the conciliation conference proper - that is, post submission by objectors and during the hearing, if the conciliation conference fails and the matter proceeds to hearing.
Under all of those circumstances, I am satisfied that, taken together, the three matters that are proposed in the contentions in the Applicant for Joinder's Statement of Facts and Contentions do warrant joinder of the Lower Ocean Avenue Double Bay Concerned Residents Association Incorporated as the Second Respondent to these proceedings.
Some time ago I had had the necessity to canvass the question of whether or not costs should be awarded in proceedings such as these on any automatic basis and I reached the conclusion that there was no such pattern in past decisions of joinder of any making of any orders of costs at all as a general matter and, second, if costs were to be ordered, where and in what fashion they should fall. It is therefore my view that the appropriate manner in which I should address that matter in these proceedings is by reserving the question of costs.
I therefore propose to order that the Applicant for Joinder be joined as the Second Respondent; second, that by 12.00 noon on Monday 9 November 2020 the now Second Respondent is to file and served a Statement of Facts and Contentions incorporating Contentions 1 to 3 of the draft Statement of Facts and Contentions as provided behind Tab 4 in Exhibit A; that the documents that are proposed to be provided in the third of the orders that are in the Notice of Motion should be provided now that the Applicant for Joinder is to be joined to the proceedings; and, finally, that costs are reserved.
It is appropriate that I direct the Applicant for Joinder to provide Short Minutes of Order, settled with the legal representatives of the other parties to give effect to my decision, be provided to my Associate also by 12.00 noon on Monday 9 November 2020 and I will formalise those orders in chambers.
The orders should also include the fact that the exhibits on the motion are returned.
[2]
Amendments
10 December 2020 - Counsel for the Applicant for Joinder is Ms L Nurpuri.
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Decision last updated: 10 December 2020