Evolution Planning Pty Ltd v Northern Beaches Council

History

1. In February 2016, Warriewood Vale (the applicant for joinder in the present proceedings) commenced an appeal against the Council's refusal of its development application seeking consent for 85 dwellings on 8 Forest Road. Following a conciliation conference, the application was amended to seek consent for 81 dwellings.
2. In those proceedings, the owners of the site in the present proceedings sought to be joined as parties. On 17 June 2016 Justice Pain declined to order joinder (Warriewood Vale Pty Ltd v Northern Beaches Council [2016] NSWLEC 77), and instead made orders allowing the owners of 4 Forest Road to call town planning evidence and make submissions on the issue of dwelling density. The appeal was ultimately heard by Commissioner Brown, and judgment is reserved.
3. The present proceedings are an appeal by Evolution Planning against the refusal by the Council of a development application for a concept proposal for 4 Forest Road, which proposes subdivision and associated works to achieve 8 residential lots including 6 lots for single dwellings, 1 lot for 4 attached townhouses and 1 lot for an 18-unit residential flat building.
4. The contentions raised by the respondent as reasons why consent should be refused can be summarised as follows: 1. The proposal the subject of the proceedings is prohibited if consent is granted to the development proposed on the adjacent site, as Cl 6.1(3) of the PLEP 2014 prohibits a proposal that would involve more than 94 dwellings being erected on the sector comprising the two sites. 2. The proposal fails to develop the sector as a whole to achieve the prescribed range of dwellings. 3. Inadequate water management details, including inconsistency with the Water Management Specification by failing to provide a range of details, failure to demonstrate that the topographical and planning constraints of the site are able to provide for the design OSD/Bio-retention basin and failure to provide detail of the road drainage systems. 4. Inappropriate subdivision layout, including failure to demonstrate: 1. that the attached townhouse building or detached dwelling house footprints are appropriately sized to accommodate a reasonable housing product, 2. how the proposed housing products integrate with the slope of the land, 3. an acceptable urban design outcome for off-street parking; 4. acceptable road layouts and landscape detail; and 5. appropriate amenity with the adjacent site. 1. Unacceptable design of residential flat building, including failure to provide an adequate mix of units, adequate parking, and adequate detail of consistency with the landscape treatment and communal open space requirements. 2. Insufficient information on road plans, bushfire assessment, geotechnical risk management and site works.

Application for Joinder

1. Section 39A, upon which the applicant for joinder relies, provides: On an appeal under section 96 (6), 96AA (3), 96A (5), 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.
2. The applicant for joinder makes the application on the basis that it says that it has genuine issues that ought to be before the Court. Those issues are:

• If the proceedings were heard prior to the decision in the related proceedings, there is a potential for embarrassment to the Court given that the issue of dwelling density on the sector has been fully ventilated in the related proceedings, and therefore evidence in relation to this should be put before the Court in these proceedings; and
• A contention that the land the subject of the development application is not capable of a dwelling density of 28 dwellings.

1. In support of the latter, the applicant for joinder submits that it would be necessary to call evidence in the disciplines of town planning, urban design, civil engineering, water management and bushfire.
2. The applicant for joinder also submits that it is in the interests of justice that they be joined to the proceedings in circumstances where any decision in relation to the dwelling density on the site the subject of the proceedings will have a direct impact on the highest and best use of their own site. The applicant for joinder also submits that it is in the public interest that they be joined so that the issue of land capability on 4 Forest Road can be fully ventilated and the desired dwelling density contemplated by the PLEP 2014 can be achieved across the two sites.
3. The applicant for joinder alternatively seeks an order for participation pursuant to s 38(2) of the Land and Environment Court Act 1979. This order is known as a 'Double Bay Marina' order made pursuant to the Court's general power under s 38(2) (Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313).
4. The applicant in the proceedings opposes the application for joinder but acknowledges that the applicant for joinder should have the opportunity to participate in the proceedings on the issue of dwelling density through orders under s 38(2) of the Court Act. Indeed, the applicant submits that there is nothing that warrants participation in any manner other than through orders similar to those made by Justice Pain in Warriewood Vale Pty Ltd v Northern Beaches Council.
5. The Council neither consents to, nor opposes, the application.

Consideration

1. It is well established that the exercise of the power pursuant to s 39A of the Court Act involves two steps. The first is that the Court must be satisfied that one of the three limbs within s 39A has been satisfied. The second is that the Court must consider whether, in all of the circumstances of the application, it ought to exercise its discretion to order a joinder.
2. In considering whether to exercise the discretion under s 39A, it is well established that the Court seeks to limit the number of expert witnesses on any issue and to prevent the duplication of evidence (Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63; Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74). Further, in considering whether to make an order for joinder, the Court is required to balance the need for efficiency with the need to have all relevant matters before the Court for consideration (Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195).
3. The questions for my consideration are, firstly, whether there is any issue identified by the applicant for joinder that ought to be raised in the proceedings that would not be adequately dealt with if I was not to make an order for joinder. The second question is whether it is in the public interest or the interests of justice that there be an order for joinder. The third question concerns whether, if I am satisfied that any one of the three limbs within s 39A have been satisfied, I ought to exercise my discretion in favour of making the order for joinder.
4. In considering these questions, for the reasons outlined below I have determined that it is not appropriate for an order for joinder to be made. This then requires me to consider a final question concerning whether it is appropriate for an order to be made pursuant to s 38(2) of the Court Act, allowing the applicant for joinder to intervene in the proceedings in some limited manner.

1. An identified issue
2. There are two issues identified by the applicant as ones that it says should be raised in the proceedings, and would not be adequately dealt with if they were not joined as a party to the proceedings.
3. Firstly, the applicant for joinder submits that there will be potential embarrassment if the evidence on the sector's dwelling density given in the related proceedings before the Commissioner is not put before the Court in these proceedings. For this reason, the applicant for joinder submits that they would be in a position to provide this evidence at the hearing of these proceedings, therefore avoiding such embarrassment.
4. I do not accept that potential embarrassment is a reason for joinder, and I do not accept that this leads to there being an issue that would not otherwise be adequately dealt with in the proceedings if the applicant for joinder were not joined. If the issue of the potential dwelling density of the sector is relevant to these proceedings, then it will be raised appropriately in these proceedings through further particularisation of contention 2 and expert evidence will be adduced by the parties accordingly. The Council is a party to both proceedings and will be in a position to bring to the Court's attention any relevant matter that may have arisen out of the related proceedings, if appropriate.
5. Secondly, the applicant for joinder submits that a contention ought to be raised asserting that the land is not capable of supporting a dwelling density of 28 dwellings. The draft contention proposed is as follows: "The land subject of the development application is not capable of supporting a dwelling density of 28 dwellings Particulars a) The topography of the land limits the dwelling density capable of being supported."
6. The applicant for joinder says that in support of that contention, it would seek to rely on evidence from a range of disciplines, including town planning, urban design, civil engineering and bushfire. In particular, the applicant for joinder raises the following points:

• The difference in the opinion as to maximum density of the site has the potential to impact on the 'highest and best use' of the site owned by the applicant for joinder;
• There should be evidence before the Court as to the extent of the earthworks necessary to support the development and how the resultant levels will impact on the ability to support the proposed dwelling density;
• There should be evidence from a bush fire consultant as to the required asset protection zone; and
• There should be evidence from a drainage engineer concerning the appropriate design of the detention pond.

1. The applicant for joinder says that these matters are all relevant to the question of what constraints exist on the site, and therefore what dwelling density can be achieved. In support of this submission, the applicant for joinder points to the disparate opinions of the town planners on the issue of potential dwelling density, which opinions are contained in the joint report filed in the proceedings concerning the adjacent land.
2. I am not satisfied that this contention, as currently framed, is an issue that can be relevantly raised in the proceedings. The proceedings are an appeal concerning a particular proposal. The relevant matters for the Court's consideration relate to the issues around that particular proposal. They are well articulated in the contentions raised in the Statement of Facts and Contentions. In particular, the precise problem regarding whether what is proposed can fit on the subject land is raised in the contentions as drafted.
3. However, a contention that requires an assessment of the capacity of the land to support a particular dwelling density is a general one. It seeks to adduce evidence on what can or cannot be constructed on the site, or more particularly, on what the development potential of the site is given its constraints. Whilst the applicant for joinder has an interest in establishing that this site can only support a certain number of dwellings, the theoretical carrying capacity of the land is not relevant to the Court's assessment of the particular proposal before it. That is, an investigation and opinion on the potential dwelling yield of the site is a separate and distinct exercise to assessing the merits of a particular development proposal. The former is theoretical only and is not a relevant consideration for the latter, although the assessment of each may share some commonality.
4. I am therefore not satisfied that there is an issue identified by the applicant for joinder that ought to be raised in the proceedings. Furthermore, the proposal to rely on evidence from experts in (at least) four different disciplines to address the contention sought to be raised will add additional cost to the proceedings. In light of my view on the relevance of such a contention, I am not satisfied that such an additional cost is warranted in the conduct of the proceedings. Further, contentions relevant to the assessment of the proposal and falling within some of those areas of expertise are already raised. For example, water management is raised through contention 3, urban design through contention 4, and the ability of the site to accommodate a reasonable design for what is proposed in contention 4. It is a matter for the Council to determine whether it seeks to adduce expert evidence in support of any of those contentions. If the applicant for joinder seeks to obtain expert evidence from these experts, it can do so of its own accord and provide that evidence in support of any objection made to the Council regarding the proposal.

2. The interests of justice and the public interest
3. I am similarly not satisfied that the interests of justice warrant joinder. Although the development potential of the applicant for joinder's land is affected by any consent given on the adjoining land the subject of these proceedings, I am not of the view that development potential is a right that the applicant for joinder should have the opportunity to protect through becoming a party to the proceedings. In that respect, the present application can be distinguished from that in Pro-Vision Developments Pty Ltd v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226. The use and enjoyment of the land, flowing from the property rights of the applicant for joinder, is not affected by the present proposal. Instead, the interest that the applicant for joinder is seeking to protect is an economic one. I am not satisfied that this interest ought to be defended in the proceedings by an order for joinder being made.
4. I am also not satisfied that it is in the public interest that the applicant for joinder be joined as a party to the proceedings. The public interest that the applicant for joinder asserts can be protected by them being joined as a party concerns the ideal dwelling density of the sector that comprises the two sites. This issue is squarely raised by the second contention. It is neither efficient nor appropriate that it be raised again by an additional party being joined to the proceedings.

3. Whether a Double Bay Marina order is appropriate
4. Having considered that an order for joinder should not be made, I am required to consider whether any alternative orders ought be made, enabling the participation of the applicant for joinder. Consistent with the decision of the Court in Warriewood Vale Pty Ltd v Northern Beaches Council, in circumstances where the development potential of 8 Forest Road will be affected by any consent issued with respect to 4 Forest Road, and where there is an issue as to how the dwelling density will be determined across the two sites, I am of the view that the interests of justice in this case do suggest that orders be made to enable participation. That participation should be limited in the same way as what was ordered by the Court in Warriewood Vale Pty Ltd v Northern Beaches Council. This will allow the applicant for joinder to participate as an Intervener and furnish evidence on how the specified density across the two sites should be achieved insofar as such evidence is relevant to the first, second and fourth contentions raised in the proceedings.
5. The Court orders that: 1. Pursuant to s 38(2) of the Land and Environment Court Act 1979, Warriewood Vale Pty Ltd may participate in the proceedings on the contentions regarding dwelling density (Contention 1, 2 and 4) through the making of legal submissions and calling town planning evidence at the s 34 conciliation conference and at any hearing on the merits, including through the participation of a town planner in any joint conference of experts in town planning that is the subject of directions made by the Court pursuant to r 31.20 of the Uniform Civil Procedure Rules 2005, subject to the following conditions: 1. The Applicant for joinder agrees to keep confidential all matters discussed in the s 34 conciliation conference; and 2. The applicant for joinder agrees not to make an application for costs against any party to, or any other person in connection with, the proceedings.

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: 07 April 2017