Enzo Developments Pty Ltd v Kiama Municipal Council

Land and Environment Court (NSW)|2024-08-22

JUDGMENT

By notice of motion filed on 12 August 2024, David McElhone and Melissa McElhone (the McElhones) seek to be joined as respondents in these proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (the Act) or r 6.24(1) of the Uniform Civil Procedure Rules 2005 (UCPR).
These proceedings are brought by Enzo Developments Pty Ltd (the Applicant) against Kiama Municipal Council's (Council's) deemed refusal of DA 10.2023.109.1 (the DA). The DA seeks approval for installation of a 140m x 140m netting structure surrounding an existing orchard and continuing use of the orchard on land at Jerrara.
The McElhones own land to the east of the orchard which contains a heritage listed dwelling house. The McElhones seek to be joined to raise issues they say would otherwise not be properly considered. Primarily, the issues relate to contamination as well as seeking consent for development already carried out and the impact of works within the setback area adjoining their house. The motion is supported by an affidavit of Mark Gerard McDonald sworn 12 August 2024 with exhibited bundle of documents and a further affidavit of Mr McDonald sworn 20 August 2024 exhibiting two additional documents.
The Applicant opposes the motion. Council neither consents to nor opposes the motion.
In my view, the application to join the McElhones to these proceedings does not satisfy either of the tests under s 8.15(2) of the Act or r 6.24(1) of the UCPR, and an order for joinder is not justified for the reasons set out below.

Background of the appeal

On 16 August 2022, development consent was originally granted by Council for intensive plant agriculture and an ancillary netting structure on the land (the consent). However, on 15 November 2022 the McElhones commenced Class 4 proceedings challenging the validity of the consent as the development had already been carried out and sought to restrain the carrying out of the development. The grounds of appeal included failure to comply with cl 4.6 of Statement Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP). They claimed that the Council did not consider a preliminary investigation report prepared in accordance with the Contaminated Land Planning Guidelines (Guidelines). The Applicant admitted the Resilience SEPP ground and on 28 August 2023 the consent was voluntarily surrendered.
The DA the subject of these proceedings was lodged with the Council on 14 August 2023, and was publicly notified. During notification, one submission was received, and it was from John Wynne of Urbis on behalf of the McElhones (Submission). The Submission consists of an 18-page document and attached comments on the Statement of Environmental Effects, Agronomist Report, Heritage Impact Assessment, Visual Impact Assessment and letter from the McElhones.
On 6 December 2023 the Applicant submitted a Preliminary Site Investigation report prepared by ENRS (PSI report). On 11 January 2024 Peter Moore of PEM Environmental submitted to Council a report on behalf of the McElhones raising criticisms of the PSI report (PEM report).
These proceedings were commenced on 20 March 2024. On 21 March 2024 the Applicant's solicitor notified the McElhones of the proceedings. On 22 April 2024 a s 34 conciliation conference was listed for 13 September 2024. The Applicant's solicitor sent the orders to the McElhones on the same day.
On 1 May 2024 the Council filed its Statement of Facts and Contentions (Contentions). The Council's solicitor sent a copy to the McElhones on the same day. The Council raises four contentions being view loss for the McElhones' land, adverse heritage impact upon the heritage listed dwelling on the McElhones' land, rural landscape character and the public interest having regard to the issues raised in the submission.
On 29 May 2024 the Applicant filed its Statement of Facts and Contentions in Reply which included at annexure A the PEM report (Reply). The Applicant's solicitor sent a copy to the McElhones on the same day.
The McElhones have the opportunity to make a submission at the s 34 conciliation conference listed for 13 September 2024, commencing onsite.
The Class 4 proceedings remain on foot, with the McElhones seeking orders to restrain the development or relocate the orchard to an alternative location on the land. The Applicant is to relist the Class 4 proceedings within 7 days of judgment in the subject Class 1 DA proceedings.

Legal Framework

The McElhones seek to be joined as a party to these proceedings pursuant to s 8.15(2) of the Act. Section 8.15(2) provides that the Court may order the joinder of a person as a party to proceedings 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.
It is well established that there are two steps to considering an application under s 8.15(2). The first step is to determine if any of the statutory limbs are satisfied and, if so, the second step is whether an order for joinder is justified in the exercise of the Court's discretion: Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44] (Quakers Hill).
Section 8.15(2) is facultative in that it enables the Court to join a person who would not otherwise have a right to be a party and caution should be exercised before granting an order for joinder: Morrison Design Partnership Pty Ltd v North Sydney Municipal (2007) 159 LGERA 361; [2007] NSWLEC 802 (Morrison). It is important to keep in mind that there is no right of objectors to be joined to proceedings for non-designated development and the circumstances the Court may order joinder are limited to those set out in s 8.15(2): Morrison at [42]-[43].
His Honour also observed in Morrison the distinction between the community and affected persons putting forward issues on one hand, and the role of the consent authority in weighing up the relevant merit considerations on the other: [52] … The planning scheme established by the Environmental Planning and Assessment Act vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination. … [54] … 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 proceedings.
The fact that there are issues an objector wishes to raise that the council did not consider to be sufficiently important does not automatically warrant the joinder of a person: The Sabian Mandaean Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 and Quakers Hill at [45]. Lack of an explicit mention of a jurisdictional matter in the contentions does not mean that the Court will not undertake the requisite consideration of that issue: HP Subsidiary Pty Ltd v City of Parramatta [2020] NSWLEC 135 at [16] (HP Subsidiary) and Hrsto v Burwood Council [2024] NSWLEC 1261 at [19]-[20] (Hrsto). The provisions of the statute provide adequate safeguard to ensure consideration of a jurisdictional issue: Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5 at [17]-[18] (Freshwater).
Conversely, it may be considered necessary to join the person if the Court's consideration of an issue would be inadequate without their participation as a party: Avalon Beach Property Pty Limited v Northern Beaches Council (2017) 227 LGERA 393; [2017] NSWLEC 130 (Avalon Beach): [10] … If neither the applicant nor the consent authority is raising that contention, there will be no contradictor. The matter will simply be raised but the Court will have inadequate argument about the issue. There is no other way in which this issue can be properly put before the Court than allowing the joinder of the neighbour.
The question to be asked is whether the presiding commissioner could sufficiently address the tasks as consent authority armed with the person's submission and consider the issues as part of the matrix of information without the person being joined: Yarranabbe Property Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 122 at [36] (Yarranabbe).
In the alternative, the McElhones seek to be joined under r 6.24(1) of the Uniform Civil Procedure Rules 2005 (UCPR), which is in the following terms: 6.24 Court may join party if joinder proper or necessary (cf SCR Part 8, rule 8(1); DCR Part 7, rule 8(1); LCR Part 6, rule 8(1)) (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. …

Application to join under s 8.15(2) of the Act is not satisfied

Adopting the two-step process to the consideration of the application under s 8.15(2) of the Act, step one I consider whether any of the limbs of subss 2(a) or (b) are satisfied.

Issues are likely to be sufficiently addressed without an order for joinder

Firstly, I consider whether the McElhones raise an issue that should be considered in these proceedings which would otherwise likely not be sufficiently addressed if they are not joined as a party: s 8.15(2)(a). The McElhones have prepared Additional Facts and Contentions which identify the issues they seek to raise. The proposed contentions fall broadly under the headings: 1. Resilience SEPP; 2. development already carried out; 3. setback development; and 4. insufficiency of information.
I will consider each proposed issue in turn.

Resilience SEPP contention

The Resilience SEPP contention raises the impact of contamination of the site and that the property has not been assessed in accordance with the requirements of the Resilience SEPP. The contention raises that s 4.6 of the Resilience SEPP must be considered and the PSI report has not been carried out in accordance with the Guidelines. It says the Court could not be satisfied that contamination will be addressed considering the matters identified in the PEM report. Further, it says approval would potentially facilitate coal washery rejects (used in the construction of an internal road and pad for a shed located to the south and west of the orchard) continuing to migrate across the orchard to the McElhones' land. The McElhones seek to lead evidence from a contamination expert, Mr Moore, about this issue.
The McElhones submit that Council's Contentions do not include any contention in respect of contamination and if they are not joined the Court will be led into error by failing to properly consider and address the jurisdictional requirements under s 4.6 of the Resilience SEPP. Relying on Avalon Beach, they submit that without an order for joinder there will be no contradictor raising the Resilience SEPP contention.
The Applicant submits that s 4.6 of the Resilience SEPP is a jurisdictional matter about which the consent authority must be satisfied before granting consent to the DA regardless of whether the McElhones are joined. The Applicant relies on the authorities of Morrison and Yarranabbe at [31]-[32] and [36].
The Applicant says Council's Contentions reference the Resilience SEPP Chapter 4 as a statutory control and provide a summary of the one (McElhone) submission including that a contamination assessment was not submitted. The Submission says that the DA is beyond power due to failure to comply with the Resilience SEPP. The Applicant's Reply raises s 4.6 of the Resilience SEPP and states that the report should be taken into consideration. The Applicant accepts that s 4.6 the Resilience SEPP applies, and has put that matter in its Reply for the Court to test the Applicant on.
I find that the Resilience SEPP contention does not satisfy the first limb of s 8.15(2)(a) and the issue is likely to be sufficiently addressed without ordering the joinder of the McElhones. Section 4.6 of the Resilience SEPP is a jurisdictional matter, which is plain from the terms of the provision and the reference to it in the Contentions. There is no disputes between the parties that the provision applies. The Court is required to satisfy itself of any jurisdictional matter prior to exercising its functions and provide reasons, whether in the context of a contested hearing, consent orders or s 34 agreement. An order for joinder is not justified to enable a jurisdictional matter to be considered as the presiding officer is already under an obligation to consider relevant jurisdictional matters, even if they are not expressly raised in the Council's contentions: HP Subsidiary and Hrsto.
Although s 4.6 of the Resilience SEPP has not been raised as a reason warranting refusal in the Contentions, it has been identified as a relevant environmental planning instrument by Council and as such is a matter for consideration under s 4.15(1)(a)(i) of the Act. Applying Freshwater, the provisions of s 4.6 of the Resilience SEPP provide adequate safeguard to ensure consideration of the jurisdictional issue.
In this case, the Applicant has also raised both compliance with s 4.6 of the Resilience SEPP and the McElhones' reasons why it says the provision is not complied with for the Court to consider. The Applicant expressly outlines the requirements of s 4.6 of the Resilience SEPP in its Reply, relies on the PSI report, identifies the criticisms in the PEM report and highlights for the Court that the PEM report should be taken into consideration as a relevant submission (s 4.15(1)(d) of the Act). The full PEM report is contained in the Reply which has been filed with the Court and would be considered by the presiding officer.
The McElhones will have a further opportunity to address the Court on the Submission and the criticisms in the PEM report at the s 34 conciliation conference. The McElhones have been given an opportunity to make an oral submission at the s 34 conciliation conference on 13 September 2024 (which it can be assumed they will accept). The McElhones do not need to be a party for this issue to be raised or to sufficiently address the Court on their objections to the PSI report. I accept the Applicant's submission that the Court is likely to be able to test the Applicant on these criticisms.
I am satisfied that the Resilience SEPP contention has been put before the Court as a jurisdictional matter and can be sufficiently addressed without an order for the joinder of the McElhones.

Development already carried out contention

The next issue raised is that the DA seeks approval for development which required consent that has already taken place and such consent cannot be validly granted to regularise the development. The contention says that the DA for continuing use of the orchard cannot regularise the construction of the orchard works including the irrigation system and no construction certificate could be granted for those works. Further, that the orchard could be successfully relocated to another part of the Applicant's land. The McElhones seek to lead evidence from an agronomist and arborist about this issue and in the exhibit are affidavits in the Class 4 proceedings from these experts.
The Applicant accepts that the DA does not and cannot seek consent for development that has been carried out. The lawfulness of works already carried out, it says, is not a relevant matter for these proceedings and relies on Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [40] (Jonah). Although the relocation issues may be a question of discretion in the Class 4 proceedings it is not a relevant matter in these proceedings. Further, the relocation issue is raised in the Contentions at contention 1(g).
In my view, the DA clearly seeks consent for use of the orchard and does not seek retrospective approval for works already carried out. The proposed contention does not raise an issue in relation to the DA but states the limits of any approval for the DA being to approve future use only and not the works themselves. This is acknowledged by the Applicant and consistent with authorities that unauthorised works cannot be approved retrospectively. To the extent that the proposed contention refers to the relevant context that the orchard works occurred without development consent, a contention which focusses merely on unlawfulness in the past is not a relevant matter in determining the merits of an application: Jonah at [40].
Further, the Submission raises the objection that consent cannot be granted retrospectively for works carried out without consent including the irrigation system. Contention 4 of the Contentions says that the DA should be refused having regard to the issues raised in the submission, and the McElhones will have a further opportunity to address the Court on this objection at the s 34 conciliation conference.
The relocation of the orchard aspect of the contention is squarely raised in contention 1(g) and will already be considered by the presiding commissioner.
I am satisfied that the objection relating to the nature of the development already carried out can be addressed in submissions and appreciated by the presiding commissioner onsite without joinder of the McElhones.

Setback development contention

The next proposed contention is that the further impact of the development within the setback area following lodgement of the Submission has not been assessed. The contentions raises that the DA extends beyond the area the subject of the application, including existing trees planted in the setback and use of heavy machinery (such as tractors). The works in the setback area have not been assessed and are not in the Contentions.
The Applicant says that the allegation the setback area has been or will be used unlawfully is not a relevant question for determination. The Applicant says the contention as it relates to impacts arising from the development in terms of privacy, noise and drainage works has been raised by the McElhones in the Submission which must be considered under s 4.15(1)(d) of the Act.
In my view, the DA clearly does not seek consent for works in the setback area. I accept the Applicant's submission that impacts in terms of privacy, noise and drainage works on the McElhones land were raised in the Submission, and the Submission is a relevant matter for consideration. The Submission raises issues with noise generated by tall machinery operating within or near the orchard adjoining their house and the loss of privacy due to overlooking. Contention 4 says that the DA should be refused having regard to the issues raised in the submission, and the McElhones will have a further opportunity to address the Court on this objection at the s 34 conciliation conference. Further,
I am satisfied that the nature of the setback development objection can be addressed in submissions and appreciated by the presiding commissioner onsite without an order for the joinder of the McElhones.

Insufficient information contention

The final proposed contention is that there is insufficient information to properly assess the DA regarding contamination. Information sought includes the detailed history of potentially contaminating activities on the Applicant's land, copies of licences or approvals by regulatory bodies such as the Environmental Protection Authority (and any notices issued by such authorities) and details on any CWR disposed of on the land.
I was not addressed in submissions on this contention. As the information sought is in connection to the Resilience SEPP contention regarding contamination and given my findings at paragraph 33 above, it follows that this proposed contention also does not satisfy s 8.15(2)(a) of the Act. Finally, the Submission raises the lack of details on potentially contaminating activities and CWR onsite. The Submission is a relevant matter raised in Contention 4 for the Court to consider and the McElhones can also raise it in their oral submissions before the presiding commissioner.

An order for joinder is not in the interests of justice

Secondly, I consider whether it is in the interests of justice to join the McElhones as a party (s 8.15(2)(b)(i)).
Applying the principles in Morrison, the McElhones have been given numerous and meaningful opportunities to be heard throughout the process of consultation on the DA which is consistent with the purpose of public participation under the Act (Morrison at [49] - [50]). The McElhones had the opportunity to make a submission during notification of the DA and made a further submission, being the PEM report, after notification and in response to the PSI report. Further, the parties to the proceedings have proactively provided the McElhones with information and documents on the appeal, and provided the McElhones with an opportunity to be heard at the s 34 conciliation conference.
I am satisfied that the McElhones have had adequate opportunity to put forward their objections and will have further opportunity to be heard, so it is not necessary in the interests of justice to join the McElhones.

An order for joinder is not in the public interest

Thirdly, I consider whether it is in the public interest to join the McElhones as a party (s 8.15(2)(b)(ii)).
I am satisfied that having regard to the public interest it is not necessary to join the McElhones. As I have said, and consistent with the principles in Morrison, the issues have been adequately canvassed throughout the public consultation process and the Court of the proceedings, and will continue to be addressed at the s 34 conciliation conference and any hearing (Morrison at [55]). In this case the Court will not be deprived of meaningful assistance, as noted above the parties have taken proactive steps to ensure the McElhones' objections will be heard.

An order for joinder is not warranted in the exercise of discretion

As I am not satisfied that the McElhones have demonstrated a basis to order their joinder under s 8.15(2), I do not need to move to step two to consider the exercise of my discretion.
I note the McElhones made the submission on discretion that the outcome of this appeal is likely to significantly impact the Class 4 proceedings and there is a prospect of further litigation if the DA is approved. I do not accept that submission and I consider that the merits of the DA are a separate matter from the grounds raised in Class 4 proceedings. I am not minded to join the McElhones absent s 8.15(2) of the Act or r 6.24(1) of the UCPR being satisfied.

Alternative application to join under r 6.24(1) of the UCPR is not satisfied

The same arguments in support of the application for joinder under r 6.24(1) of the UCPR are relied upon as the application under s 8.15(2) of the Act. As such, for the same reasons stated above I find that the application under r 6.24(1) of the UCPR is not satisfied.

Orders

I am not satisfied to grant the motion for the reasons outlined above.
The parties did not make any application for costs of the motion.
The Court orders that: 1. The Notice of Motion filed 12 August 2024 is dismissed.

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. Decision last updated: 10 September 2024

(2017) 227 LGERA 393

(2006) 144 LGERA 408

(2007) 159 LGERA 361

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