Chase Property Investments Pty Limited v Blue Mountains City Council & Anor

Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervenor) [1974] 1 NSWLR 391; Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293; CASES CITED: Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555; Pro-Vision Developments Pty Limited v Ku-ring-gai Municipal Council [2003] NSWLEC 226

APPLICANT: Mr G Green (solicitor) SOLICITORS: Pike Pike & Fenwick

FIRST RESPONDENT: LEGAL REPRESENTATIVES: Mr T Cork (solicitor) SOLICITORS: McPhee Kelshaw SECOND RESPONDENT: Mr T Robertson SC SOLICITORS: Woolf Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10720 of 2005 Chase Property Investments Pty Limited v Blue Mountains City Council & Residents Against Improper Development Incorporated

JUDGMENT 1 Her Honour: These are Class 1 proceedings brought pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the deemed refusal of development application no. X05/0412 ("DA X05/0412") by Blue Mountains City Council ("the Council") for 39 new buildings for tourist and residential accommodation at 132 - 174 Govetts Leap Road, Blackheath, known as "Parklands". The Parklands site is zoned Residential Bushland Conservation Zone by the Blue Mountains Local Environmental Plan 1991 ("the LEP"). Development Control Plan No. 15 - Parklands, Govetts Leap Road, Blackheath ("the DCP") also contains controls specifically relevant to development on the Parklands site. The DCP states: The aim of this Plan is to provide measures for identifying the existing physical and heritage attributes of the property known as "Parklands", which will ensure that future development of the site protects its existing character and is in accordance with Council's planning objectives.

2 A Notice of Motion dated 29 July 2005 filed by an incorporated association, Residents Against Improper Development Incorporated ("RAID") seeks orders that RAID be joined as a party to the proceedings pursuant to s 39A of the Land and Environment Court Act 1979 ("the Court Act") and that certain questions of law be listed for hearing. On the day of the joinder hearing RAID filed amended questions of law. The questions of law are: (i) Whether on the proper construction of cl 10.8(e) of the LEP the proposed development in development application no. X05/0412 is prohibited because the proposed development cannot be serviced by a reticulated sewerage system. (ii) Whether development application no. X05/0412 is designated development under the Environmental Planning and Assessment Act 1979; (iii) Whether on the proper construction of cl 30 of the LEP the calculation of the Principle Development Area must include the following aspects of the proposed development: (a) all components of the on-site effluent disposal system; (b) all proposed roads and footpaths; (c) all landscaped areas and gardens; (d) all proposed carparking areas. (iv) Whether consent to development application no. X05/0412 cannot be granted because a SEPP 1 objection has not been validly made.

3 The Council filed a Statement of Issues in these proceedings. There is some overlap between the first, third and fourth questions of laws and the Council's Statement of Issues. The Statement of Issues does not include the second question of law in relation to whether DA X05/0412 is designated development under the EP&A Act. Background 4 The Parklands site has been listed on the Blue Mountains Heritage Inventory under Sch 2 of the LEP. The inventory listing states that the garden and grounds of the Parklands site are of historic and aesthetic local significance.

5 RAID gave evidence that the Parklands site is situated upstream of an ecological community known as Montane Peatlands and Swamps. The Scientific Committee, established by the Threatened Species Conservation Act 1995 ("the TSC Act"), made a final determination on 17 December 2004 to list Montane Peatlands and Swamps of the New England Tableland, New South Wales North Coast, Sydney Basin, South East corner, South Eastern Highlands and Australian Alps Bioregion, as an endangered ecological community under Pt 3 of Sch 1 of the TSC Act.

6 RAID relied on the affidavits of Ms Virginia King, treasurer of RAID, sworn 28 July 2005 and Ms Nada Mikas, member of RAID, sworn 12 August 2005. Ms King's affidavit annexed a copy of the objection submitted to the Council by RAID against the development proposal.

RAID's submissions 7 RAID submitted that it should be joined as a party to the proceedings on the basis that it raised a significant question of law and issues of merit that have not and would not be addressed by the Council during the hearing. In addition to the question of law RAID submitted that, if joined, it intended to put forward additional arguments in relation to the merits of DA X05/0412 including: (i) non-compliance with the DCP; (ii) adverse impact on the landscape heritage item and its setting by vegetation removal, erection of buildings and construction works; (iii) incompatibility with Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River with respect to heritage, visual impact and wetlands; and (iv) whether part of the subject land is an endangered ecological community, and whether the proposed development will have an adverse impact on the endangered ecological community off-site, being Montane Peatlands and Swamps endangered ecological communities.

8 RAID also submitted that they should be joined as a party to the proceedings as a matter of public interest. RAID argued that as the matter had generated a significant amount of public interest in the local area, including approximately 90 objections, and DA X05/0412 sought to develop a significant parcel of land in Blackheath, the matter was one that was of significant public interest. Council's submissions 9 The Council supported the joinder of RAID as a party to the proceedings. The Council supported the submission that there was significant public interest in all of the issues being ventilated in the merit proceedings. Applicant's submissions 10 The Applicant submitted that RAID should not be joined as a party to the proceedings on the basis that the questions of law and issues of merit outlined by RAID could be ventilated and raised by the Council and resident objectors during the course of the merit proceedings, except for the second question of law relating to whether DA X05/0412 constituted designated development. The Applicant submitted that even if DA X05/0412 could be described as "sewerage systems or works" within the definition of Sch 3 of the EP&A Act, the development could not be classified as designated development pursuant to the EP&A Act because the nature, character and extent of the proposed on-site sewerage system was ancillary to the use of the land for tourist and residential accommodation. Accordingly, it was not appropriate to join RAID on the basis of the designated development issue, as that issue had no merit.

11 The Applicant also submitted that it was inappropriate to join RAID as a party because it would ultimately prolong the hearing and lead to the vacation of hearing dates allocated for the merit proceedings. The Applicant's solicitor stated from the bar table that this would prejudice the Applicant financially although no evidence was presented in support of this submission.

12 The Applicant also submitted that it was important to note that s 39A was included in the Court Act prior to the implementation of this Court's practice direction with respect to Court appointed experts. As the Court had moved to a process that involved Court appointed experts who were able to independently consider and assess all of the evidence before them, provided that all of the evidence was supplied to the Court appointed expert, there was no reason for joining a party which sought only to provide a different perspective on one or a number of particular issues.

13 If the Court did consider it appropriate to join RAID as a party to the proceedings, the Applicant submitted that in the circumstances the Court should only join RAID on a limited basis. Finding 14 Section 39A of the Land and Environment Court Act 1979 ("the Court Act") provides that: On an appeal under section 97 or 98 of the Environmental Planning and Assessment Act 1979, 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.

15 There are three alternative bases for ordering joinder of a party under s 39A of the Court Act as set out in (a), (b)(i) or (b)(ii). As identified in Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293 and Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555 the power in relation to the joinder of parties under s 39A of the Court Act is wider than has previously applied in the Court under the Supreme Court Rules 1970.

16 The Parklands site is a large and significant one in Blackheath, being 10.6ha. The Parklands site is identified as a heritage item under the LEP. RAID was formed in 1997 by a group of lower Blue Mountains residents and its membership has since increased to include the upper Blue Mountains. RAID currently has approximately 100 financial members. The Blackheath Residents Against Improper Development ("BRAID") is a subcommittee of RAID. BRAID began in November 2004 as an informal group of 14 Blackheath residents opposed to the current development application for the site. BRAID currently has approximately 100 members. RAID has objected to this proposed development as have a number of other individuals and groups.

17 The Council supports the joinder of RAID and its solicitor has stated that he does not have instructions to raise the merit issues which RAID seeks to argue. Nor does the Council intend to argue the legal question RAID wishes to raise in relation to designated development.

18 While the Applicant argued that there was no substance to RAID's second question of law in relation to designated development, I am unable to finally determine this issue on the basis of the preliminary submissions of the parties. Further evidence and submissions from the parties is necessary for a final determination. It is not self evident on the limited material before me that there is no case at all.

19 The Applicant argued that RAID can still receive fair treatment and have all its issues raised in the Council's case and therefore that s 38(2) of the Court Act is a sufficient basis for intervention, as was the practice of the Court in making "Double Bay marina" orders before s 39A of the Court Act was adopted. Alternatively, if joined as a party under s 39A of the Court Act RAID's participation can be limited to specific issues.

20 I do not accept that once joined as a party it is appropriate or open to the Court to restrict the basis on which a party is joined. Part 8 r 8 of the Supreme Court Rules 1970 did not so provide, as noted by Hutley JA in Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervenor) [1974] 1 NSWLR 391 at 396, and there is nothing in s 39A of the Court Act that suggests such an approach, as I noted in Kavia Holdings at [5]. If I do join RAID as a party it will not be on a limited basis. The Court does, of course, have power to issue orders relating to how a party is to participate in proceedings.

21 I consider that RAID does satisfy the requirements laid out in s 39A(a) of the Court Act in that it is raising one legal issue and several merit issues which would not otherwise be raised. If joined it intends to bring forward expert evidence in the areas of heritage, sewerage and in relation to the endangered ecological community. Section 39A(a) of the Court Act is therefore satisfied. I do not consider that the comments of Lloyd J in Pro-Vision Developments Pty Limited v Ku-ring-gai Municipal Council [2003] NSWLEC 226 apply in this matter as there is utility in joining RAID as a party to the proceedings. 22 I do not consider the changes in Court processes in relation to the giving of expert evidence by a single Court appointed expert should be considered to reduce the necessity for joinder of appropriate parties where they have additional valid issues they wish to bring before the Court. It is essential that even if there are Court appointed experts their evidence is scrutinised by all relevant parties.

23 Further, given RAID's established involvement as a spokesperson for the local community in relation to this site and the significance of the site, I consider it should also be joined under s 39A(b) of the Court Act. As I stated in Kavia Holdings I make this decision mindful that in the interests of justice, as referred to in s 39A(b)(i) of the Court Act, I need to balance efficiency in the management of matters before this Court with the need to have all relevant matters put before the Court. The joinder of a new party does lead to more work for the existing parties and a likely increase in the time required for the hearing. In all the circumstances I consider however that RAID should be joined as a party. An amended Statement of Issues will need to be prepared to reflect the additional issues. There will need to be appropriate case management of the matter to ensure it proceeds expeditiously. Orders 24 The Court makes the following orders:

1. That the Residents Against Improper Development Incorporated be joined as a party to the proceedings as the Second Respondent.
2. No order as to costs.

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.