Dash v Council of the Municipality of Woollahra

Representation: Counsel:
R Lancaster SC and A Hannam (Applicant on the Notice of Motion)
N Hammond (Respondent) (First Respondent on the Notice of Motion)
T To SC and J Farrell (Applicant) (Second Respondent on the Notice of Motion)
Solicitors:
Beatty Hughes & Associates (Applicant on the Notice of Motion)
Woollahra Council (Respondent) (First Respondent on the Notice of Motion)
Mills Oakley (Applicant) (Second Respondent on the Notice of Motion)

File Number(s): 2025/00149968

Publication restriction: Nil

EXTEMPORE JUDGMENT

1. HER HONOUR: In this matter there are pending Class 1 proceedings before this Court which fall within the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW). The parties have undertaken the conciliation component of a hearing and at the conclusion of that conciliation conference the parties reached an agreement and entered into consent orders. Whilst the matter was reserved before the Acting Commissioner in connection with the Court's consideration of the s 34 agreement, the Council indicated that it withdrew its consent since that time. The conciliation conference has been terminated and the matter is listed for directions to progress the determinative component of the s 34AA proceedings with a date for mention some time in January 2026.

2. The owner of the adjoining land (Adjoining Owner), being the land to which the Council’s Amended Statement of Facts and Contentions filed on 10 July 2025 identify as the primary consideration for the determination of this application, has sought to be joined in these proceedings. Their primary position is that they seek to be joined pursuant to the provisions of s 8.15 of the Environmental Planning and Assessment Act 1979 (NSW) in that they are person 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. In addition, they submit that it is in the interests of justice or the public interest that they be joined as a party. The principles in relation to a joinder under s 8.15 are well-known and often traversed, and I do not repeat them here.

3. This is a case that is of long history, and again, in light of the nature of the extempore judgment I give, I do not repeat it, but the chronology of the matter is well-identified in the written submissions of the Applicant, which have been filed in these proceedings and comprise par 11. What is to be observed from that chronology is that the Applicant has, since the lodgement of the development application, amended the application such that at the original appeal revision A plans were relied upon and upon the making of the s 34 agreement, which was later withdrawn, they were up to revision G of the application.

4. I am told by senior counsel for the Applicant on the development application that it is proposed again to further amend the plans. The amendment to the proposal is one, the substance of which has not been identified, but one assumes seeks to address the issue of the view impact upon the land owned by the Adjoining Owner. It is submitted that in light of the fact that there is a proposed future further unidentified amendment, that it is, in effect, premature for me to join the Adjoining Owner, as the history discloses that that Adjoining Owner has had many opportunities which it has taken up to object to the development in support of the Council’s contentions, and the Council has, responsive to those objections, taken steps to support that Adjoining Owner’s position in relation to view loss, and it is observed that the Adjoining Owner has had no shortage of ability to raise the issues.

5. In response to that, I observe that the no shortage of ability to raise the issues is in large part caused by what appears to be a constant amendment of the application by the Applicant and the need, therefore, for the Council to continue to renotify the application and seek submissions of those owners that are affected. It was open, and remains open, to the Applicant to the consent to discontinue these proceedings and lodge a fresh development application, but it has elected to continue to seek leave to amend its application, which has necessitated, as I have observed, the continued involvement of the owners of the adjoining land.

6. It is also contended that the application for joinder is, of itself, inexplicably late because the time that has elapsed since the lodging of the appeal in 2024 – the Adjoining Owner has not, until this time, sought joinder. I do not consider that submission to be one that is relevant in the determination of this application. It is quite plain that the Adjoining Owner was prepared to participate in the proceedings in the usual course up until the making of the s 34 agreement.

7. The circumstances of this case are peculiar in that the Council, whilst raising an issue of visual impact, has not sought to bring before the Court evidence of an expert in relation to the visual impact assessment. This is notwithstanding that the Applicant has retained such expertise. It was only upon the Council renotifying the plans that were purported to be the subject of the s 34 agreement that the Adjoining Owner brought to the Council’s attention a genuine concern that the information that had been provided for the Applicant for development consent was not an accurate representation of the view impact.

8. The affidavit of Ms Bullmore confirms that the reason for the Council’s withdrawal of consent was a real and genuine concern held by the Council that the information upon which they had formed their opinion was not reliable. That is reinforced by Ms Bullmore’s email to Mr Sonter and Mr Hugo dated 24 October 2025, which has been provided to me as an annexure to the affidavit of Mr Hugo sworn 11 December 2025. The issue of view loss is more than a merit consideration in this case; it is also a jurisdictional consideration insofar as the Applicant’s development consent relies on the provisions of cl 4.6 of the Woollahra Local Environmental Plan 2014 (NSW) to vary a height control, one of the objectives of which is to enable view sharing.

9. In light of the Council’s intention to continue to raise the contentions in the Amended Statement of Facts and Contentions, and the Council’s present instructions that it does not have and has no instructions to qualify an expert in visual impact, and in light of the real question as to whether or not the information that has been provided in support of the application is accurate, that absent the joinder of the Adjoining Owner, the Court will not have material to enable the question of the accuracy of that view impact information and the impact upon number 85, being the adjoining land, to be sufficiently addressed. I consider this to be particularly important in circumstances where it raises issues of jurisdiction as well as merit.

10. Accordingly, I consider it appropriate in the circumstances, which, as I observe, are peculiar to this appeal, that it is necessary that the Adjoining Owner be joined as the Second Respondent to these proceedings and I so order. I consider that the fact that the now second respondent has, in the past, provided information through an expert to be important, but I observe that by being joined as a party that expert will be required to be qualified as an expert in the proceedings, thereby giving the Applicant the opportunity to challenge the veracity of the criticisms of their evidence in an appropriate form, and that reinforces my view that it is appropriate that the Adjoining Owner be joined as the Second Respondent to the proceedings.

Orders

11. The Court orders:

12. Grant leave to Penelope Kontopos to be joined pursuant to s 8.15 of the E**nvironmental Planning and Assessment Act 1979 (NSW) as Second Respondent to the proceedings in accordance with Order 4 of the Notice of Motion filed 27 October 2025; and

13. Each party is to pay their own costs of the hearing of the Notice of Motion.

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