Deancliff Developments Pty Limited v Hornsby Shire Council & Ors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10184 of 2004 Deancliff Developments Pty Limited v Hornsby Shire Council, May Harlow Pty Ltd and Felix Fei Chui

EX TEMPORE JUDGMENT 1 Her Honour: I heard argument yesterday in relation to whether the company May Harlow Pty Ltd and an individual Felix Fei Chui should be joined as parties under section 39A of the Land and Environment Court Act 1979 ("the Court Act") which states: On an appeal under section 97 or 98 of the Court Act, 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. 2 The Notice of Motion filed by the applicants on the motion, whom I will call the "objectors", states the basis for the application was the loss of property values of the objectors. At the hearing Mr Preston expanded the basis of the application to matters more pertinent to this Court.

3 In relation to the application of s 39A(a), one of the bases under which parties may be joined, there were numerous issues put forward by the objectors as a basis for why the Court should exercise its discretion in favour of the objectors.

4 First of all there was a suggestion made by the objectors' counsel that in relation to the issue of amalgamation, issue 1 in the Statement of Issues, the objectors have particular knowledge due to negotiations which have occurred between the Applicant for development and themselves. This is the basis on which Hornsby Shire Council ("the Council") also supported joinder of the two objectors.

5 A further issue raised to support the application was that additional matters would also be raised in relation to the State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development ("SEPP 65") issues identified in issue 2 of the Statement of Issues, namely the context of the proposed development, its scale, the built form, the density of the development, solar access, yield and equitable distribution of lots and setback issues. These are all SEPP 65 issues which the Council has informed the Court it no longer intends to argue. The only SEPP 65 matter identified in issue 2 which the Council now seeks to ventilate concerns landscaping.

6 In addition to the above matters is the issue of whether the development potential of the existing properties, that is the objectors' properties, will be adversely affected. I allowed into evidence and take into account, the report of the town planner, Mr Lovell, where he raises potential adverse impacts on the development potential of the objectors' properties if this proposal was to proceed.

7 I note that the Applicant opposed joinder on the basis there has been delay in making the application. It was put that there were no new issues or information which will be raised by the objectors not already raised by the Council in relation to amalgamation and landscaping and that the additional issues which could be raised could be done on the basis that Mr Lovell give expert evidence in the Council's case.

8 It was also put in relation to offers made between the parties as to the amalgamation of their respective lots that there is no greater likelihood that the objectors' offer contained in the letter which is now exhibit 9 will be accepted than the Applicant's earlier offer to the objectors would be accepted, and that this could result in a stalemate for the site if the Court rejects this development application, but I do not consider that particular submission as material to this particular application before me. Findings 9 Reference was made by the Applicant's counsel to the decision of Lloyd J in Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226 where he stated that it would not be appropriate to join a party where s 39A is satisfied but where there is delay in the application being made and there were limited prospects of success on the matters sought to be raised. I agree with his Honour's observations. In other words, there should not be disentitling conduct on the objectors' part and there must be utility served by the joinder of the parties.

10 In relation to whether I should join the parties under s 39A(a), I consider that joinder should be allowed and I will set out briefly why. In relation to the issue of amalgamation, issue 1 in the current Statement of Issues, I consider the objectors will have additional information on the efforts made by the Applicants in relation to the amalgamation which it is relevant to put before this Court and which is peculiar to the objectors.

11 In relation to the additional SEPP 65 issues as set out in issue 2 of the Statement of Issues, I consider the issues raised in the Council's report which is contained in exhibit 6 at p 44 - 84 continue to be pertinent despite being informed by the Council's solicitor yesterday that, apart from landscaping, they are no longer issues in the Council's view.

12 This view of the Council's solicitor was that since that report there have been amended plans lodged by the Applicant which have overcome the Council's concerns and hence consensus has been reached by the parties' town planners. This consensus is indeed reflected, I note, in the joint town planners' report filed in the Court.

13 The Court has had the benefit of a view on the site and been provided with plans for the proposed development. While it is yet to come to a concluded view on the overall merits of the matter at this preliminary stage, it does not understand why the Council continues to raise issue 1 in relation to the amalgamation issues under the local environment plan and development control plan ("the DCP"), but does not raise urban form issues which arise from the failure of this proposal to meet the Council's amalgamation policy in the DCP, apart from the issue of landscaping alone.

14 The amendments to the Applicant's plans compared to those currently before the Court as exhibit D, do not appear to me to overcome a number of the objections raised in the Council's earlier report. Therefore significant issues arise which should be raised in a merit appeal application in my view. These objectors seek to do so in circumstances where the Council is not intending to.

15 Linked to this is the issue of the development potential of existing properties. This is relevant given that there is a specific provision in the relevant DCP which sets out a performance criteria that the development potential of existing properties should be distributed equitably. It does not appear that the Council will be putting forward any evidence or submissions on this issue despite the reference in the DCP. Once again this is a matter peculiar to the objectors' interests on which I believe the Court should hear evidence and submissions.

16 I accept the objectors' explanation for its application being made late on the first day of the hearing, and not before the hearing, that until recently the Council was expected to raise the various SEPP 65 issues which the objectors now seek to raise and that the objectors, not being parties to the proceedings, had not been provided with all the material necessary to make a decision about whether they ought seek to join as parties.

17 I consider the Court is likely to be better informed about the issues identified above if the objectors do intervene and, as I have already stated, allow their joinder as parties under s 39A(a) of the Court Act. I note briefly that application was also made in the alternative under s 39A(b)(i) and (ii) but I do not consider the reasons advanced in relation to those sections were sufficient grounds on which to grant joinder in relation to subsection (b).

18 Given that s 39A has now been included in the Court Act, the objectors in my view are seeking to raise important issues which are not likely to be adequately addressed by the current parties and are issues about which the Court needs to be informed so that there is utility in their joinder and there is not disentitling conduct on the objectors' part I intend to apply s 39A.

19 I should note that in allowing joinder, the Court has not had any regard to the private economic interests of the objectors as that is simply not relevant to the Court's consideration and the objectors should bear that in mind. What is relevant is whether under s 39A(a) the objectors can raise merit and legal issues which are material to the matters before the Court and which no other party will raise or raise adequately. Orders 20 The Court makes the following orders:

1. May Harlow Pty Ltd and Felix Fei Chui to be joined as Second and Third Respondents.

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