Flaherty v Hawkesbury City Council

Land and Environment Court (NSW)|2020-04-09|Before: Pain J

SOLICITORS: Addisons (Applicant) Marsdens (Respondent) File Number(s): 19/200819

Judgment

The Heritage Council of New South Wales (Heritage Council) has filed a notice of motion dated 1 April 2020 seeking an order that it be joined as a party in these Class 1 proceedings relying on s 8.15(2) of the Environmental Planning and Assessment Act (EPA Act) and r 6.27 of the Uniform Civil Procedure Rules 2005 (UCPR). The Class 1 appeal was commenced by the Applicant following a refusal by Hawkesbury City Council (the Council) of a development application (DA) for a large subdivision in the North Richmond area. The subdivision proposed is on part of a large area known as Yobarnie Farm, listed on the State Heritage Register (SHR). The Council did not make any submissions on the notice of motion. The Applicant opposes the order for joinder being made.
The proposed development is integrated development under the Environmental Planning and Assessment Act 1979 (EPA Act) by virtue of s 58 of the Heritage Act 1977.

4.47 Development that is integrated development (1) This section applies to the determination of a development application for development that is integrated development. (2) Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent. (3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval. (4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application. ... 4.50 Granting and modification of approval by approval body (1) Despite any other Act or law, an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked. (2) The approval may be granted subject to conditions that are not inconsistent with the development consent. Neither the provisions of section 4.17(6)-(10) nor the imposition of conditions as to security by the consent authority prevent an approval body from imposing conditions, or additional conditions, as to security. (3) Subsection (1) does not apply to or limit the granting of approval to an application for renewal of an approval. (4) An approval body cannot vary the terms of an approval granted for integrated development for which development consent has been granted before the expiration, lapsing or first renewal of the approval, whichever first occurs, other than to make variations that are not inconsistent with the development consent. … Division 8.3 Appeals - development consents … 8.14 Powers of Court on appeals … (4) If an appeal under this Division relates to integrated development - (a) the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from each relevant approval body, and (b) the Court is not bound to refuse an application for development consent because a relevant approval body has decided that general terms of approval will not be determined or has decided not to grant a relevant approval, and (c) the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body. 8.15 Miscellaneous provisions relating to appeals under this Division … (2) On an appeal under this Division, 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.

Heritage Act 1977

Relevant sections of the Heritage Act provide: 4A Heritage significance (1) In this Act: State heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to the State in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. … Division 1 Constitution of the Heritage Council … 8 Members of Heritage Council (1) The Heritage Council is to consist of 9 members. Of the members, 8 are to be appointed by the Minister (the appointed members). (2) The other member is to be the Secretary of the Department of Planning and Environment. (3) Five of the appointed members are to be persons who, in the opinion of the Minister, possess qualifications, knowledge and skills relating to any of the following areas: (a) (Repealed) (b) archaeology, (c) architecture, (d) the building, development and property industries, (e) conservation of the environmental heritage, (f) engineering, (g) New South Wales or Australian history, (h local government, (i) moveable heritage, (j) natural heritage, (k) planning, (l) property, planning or environmental law, (m) property economics, (n) rural interests, (o) cultural landscapes. … Division 1 Preliminary 56 Definitions In this Part: approval body means: (a) in respect of an interim heritage order made by the Minister or listing on the State Heritage Register - the Heritage Council, or … integrated development has the same meaning as in section 91 of the Environmental Planning and Assessment Act 1979. Division 2 Controlled activities 57 Effect of interim heritage orders and listing on State Heritage Register (1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3: (a) demolish the building or work, ... Division 3 Applications for approval Subdivision 1 Applications generally 58 Application of Subdivision (1) This Subdivision applies to an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1). (2) This Subdivision applies in addition to, and not in derogation from, the provisions of any other Act or statutory instrument under which an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1) is required to be made.

Land and Environment Court Act 1979

Relevant provisions of the Land and Environment Court 1979 (LEC Act) provide: Division 4 Special provisions respecting Class 1, 2 or 3 proceedings 34 Conciliation conferences (1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court - (a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and (b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference. … Part 6 Miscellaneous … 64 Appearance by the Crown (1) The Crown may appear before the Court in any case in which the public interest or any right or interest of the Crown may be affected or involved. ...
The Heritage Council relied on the affidavit of Mr T Flaherty solicitor sworn 31 March 2020. Mr Flaherty is the solicitor with daily carriage of the matter at the Department of Planning, Industry and Environment (DPIE).
Annexed to the affidavit are the Heritage Council's report assessing the DA (Annexure A), a letter dated 9 October 2019 from the Heritage Council to the Council ("General Terms of Approval" (GTA refusal letter) (Annexure B), the "Statement of Facts and Contentions" (SOFAC) filed by the Council in the appeal on 15 October 2019 (Annexure C), a letter dated 26 February 2020 from the Council's solicitors to the Heritage Council (Annexure D), and a chain of email correspondence between Mr Flaherty and solicitor for the Council Ms Corradini-Bird exchanged between 10 March 2020 to 30 March 2020 inclusive (Annexure E).
The GTA refusal letter outlined two reasons why the Heritage Council would not grant approval. The first reason is that Yobarnie Farm is a place of state heritage significance that is protected on the SHR for its historic, associative, technical, aesthetic and rarity values. The proposed development will have a detrimental impact on those values. The second reason is that insufficient information has been provided to demonstrate that the proposed development will not have a detrimental impact on the significance of Yobarnie Farm.
The Heritage Council instructed Mr Flaherty that it has been provided with several sets of amended plans and additional information for the DA since the GTA refusal letter was issued to the Council. Despite this the Heritage Council maintains its concerns with the DA as set out in the GTA refusal letter.
The Heritage Council instructed Mr Flaherty that if joined as a party, it intends to raise the matters set out in the GTA refusal letter and the appropriateness of granting development consent for development that can never proceed because the Heritage Council has no power to grant approval for the development which is required under the Heritage Act.
The Heritage Council instructed Mr Flaherty that the issues it intends to raise will not be sufficiently addressed if it is not joined as a party. If joined, the Heritage Council would assist the Court and the parties regarding the impacts of the proposed development on heritage significance and how such impacts might be ameliorated.
The Heritage Council instructed Mr Flaherty that it is in the public interest for the Heritage Council to be joined as a party as approval of the proposed development would not be in the public interest due to the unacceptable heritage impacts it would have.
The following chronology appeared in the Heritage Council's written submissions and I do not understand this to be contested: a. 15 November 2018 - DA lodged with Council (Flaherty Affidavit, p. 27, Annexure "C", [34]); b. 17 December 2018 - complete DA documentation/material received by the Intervenor (Flaherty Affidavit, p6, Annexure "A", [34]); c. 10 January 2019-21 February 2019 - DA notified. 38 submissions received (Flaherty Affidavit, p. 27, Annexure "C", [35]); d. 22 March 2019 - the Intervenor [Heritage Council] is notified of the submissions received by Council (Flaherty Affidavit, p. 6, Annexure "A"); e. 28 June 2019 - the current appeal was commenced (Flaherty Affidavit, p.45, Annexure "D"); f. 21 August 2019 - the Intervenor provides Council with a request for further information and justification. The request provides that the further information and justification should be provided within 21 days (Flaherty Affidavit, p. 7, Annexure "A") g. No further information or justification is received within 21 days and Council informs the Intervenor that it is unlikely that the information or justification will be provided as the Applicant has a number of other applications pending at Redbank (Flaherty Affidavit, p. 6, Annexure "A"); h. Council indicated to the Intervenor that it has major concerns with the proposal and was awaiting further information from the Applicant (Flaherty Affidavit, p. 6, Annexure "A"); i. 9 October 2019 - the Intervenor issued General Terms of Refusal (GTRs) to Council (Flaherty Affidavit, pp 19-20, Annexure "B"); j. 15 October 2019 - Council filed its statement of facts and contentions for the appeal (Flaherty Affidavit, p. 21, Annexure "C"); k. 30 December 2019 - Council advises Intervenor of the proceedings and refers a suite of additional DA information (including plans and supporting documents) to the HC (the 30 December 2019 package). This package is a response to the following: i. Council's initial assessment letter ii. Council's SOFAC iii. The Intervenor's GTRs ... l. 7 February 2020 - the Intervenor provides Council with its response to the 30 December 2019 package; m. 24 February 2020 - Council refers another suite of additional DA information (including plans and supporting documents) to the Intervenor (the 24 February 2020 package). Council describes this package as a response to the HC's comments of 7 February 2020; n. 26 February 2020 - the Intervenor receives a letter from Council's solicitor of the same date (Flaherty Affidavit, p. 45, Annexure "D"); o. 28 February 2020 - section 34 conference takes place. The conference was adjourned to 13 March 2020 to enable the parties to continue ongoing without prejudice discussions; p. 2 March 2020 - further additional DA information (including plans and supporting documents) provided to the Intervenor directly by the Applicant. q. 18 March 2020 - Council's solicitor informs Troy Flaherty of DPIE that the s34 conference has been further adjourned to 1 April 2020 (Flaherty Affidavit, p. 54); r. 27 March 2020 - Council's solicitor confirms the form of the amended application received by Council (Flaherty Affidavit, p. 49, Annexure "E"); s. 30 March 2020 - Council's solicitor informs Troy Flaherty that the form of the proposed development is now agreed between the Applicant and Council subject to conditions which are still to be agreed. Mr Flaherty requests a full copy of the amended application (Flaherty Affidavit, p. 47-48); t. 31 March 2020 - the Intervenor's joinder notice of motion and affidavit in support are lodged with the Court. The notice of motion is stamped as being filed on 1 April 2020.
As identified in the chronology the Applicant and the Council have participated in s 34 conciliation conferences in February and March 2020. The Court has been informed the adjourned s 34 conference is now at 2.00pm on Tuesday 14 April 2020. This judgment has of necessity been prepared quickly by me as duty judge to accommodate this timetable.

Heritage Council's submissions

The Council has advised the Heritage Council that it intends to enter into a s 34 agreement unless the Heritage Council is joined as a party. The Heritage Council believes the Applicant has not addressed the concerns of the Heritage Council as set out in the GTA refusal letter. The Council submits that it should be joined as a party because: 1. it is able to raise heritage issues that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the Heritage Council were not joined as a party; and 2. it is in the public interest for it to be joined.
The power under former s 39A of the LEC Act (now s 8.15(2) of the EPA Act) is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to an appeal (see: Preston CJ in Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 (Morrison Design) at [41]-[54]). In Vella v Penrith City Council [2019] NSWLEC 62 (Vella), Moore J considered an application for joinder by the Department of Education, as a concurrence body, and distinguished the decision in Morrison Design where the appearance of an approval body is in the public interest at [18].
The tests in s 8.15(2)(a) and UCPR r 6.27 are met. The Heritage Council seeks to raise issues, consistent with the GTA refusal letter, that the proposed development will have a material impact of the state heritage listed item, Yobarnie Farm. The Heritage Council has considered the totality of the amended proposal (provided in tranches with a complete copy provided on 30 March 2020). The Heritage Council maintains its position that the proposal will have a material impact on the state heritage item for the reasons set out in the GTA refusal letter. The issues that the Heritage Council seeks to raise relate to the preservation of the heritage significance of the state heritage listed Yobarnie Farm which should be carefully considered by the Court with a contradictor.
It is in the public interest that the Heritage Council be joined given the location of the subdivision on part of the Yobarnie Farm all of which has state significance. The "Statement of Significance" is attached to Mr Flaherty's affidavit.
The Heritage Council has a special interest in the proceedings as the NSW government agency representing the Crown responsible for administering the SHR. There are clear public interest considerations that support the Heritage Council's application to be joined to the proceedings given its role and expertise in relation to matters of state heritage significance.
In response to the Applicant's submission that the Heritage Council could have participated in the s 34 conference because of s 64(1) of the LEC Act, only parties can participate in s 34 conferences. The right of appearance under s 64(1) is not the same as being a party. As a practical matter the Heritage Council was only given two days' notice of the s 34 conference to be held on 28 February 2020 by emailed letter on 26 February 2020. That is insufficient notice.
The Heritage Council intends to oppose the grant of development consent unless its concerns are addressed by the Applicant. There is substantial utility in joining it as a party.
The issue in s 8.15(2) is whether a matter is sufficiently addressed not just that a particular issue is identified by the Council in its SOFAC.

Applicant's submissions

The Court has the power to approve the DA by virtue of s 8.14(a) of the EPA Act where the Council is otherwise limited by s 4.47(4) of the EPA Act from granting approval where GTAs are not forthcoming from an approval body.
The two bases referred to in the GTA refusal letter annexed to Mr Flaherty's affidavit are firstly, the potential impact of the proposed DA on state significant heritage item Yobarnie Farm. The Council has adequately reflected the Heritage Council's concerns in the SOFAC in relation to the topics of heritage, earthworks and flora and fauna. Secondly, the assertion of insufficiency of information in the GTA refusal letter is not relevantly an issue for the purposes of s 8.15(2). Discretion should be exercised against joinder in the circumstances of the present case, for two reasons. Firstly, it is unclear if the Heritage Council position is one for refusal of the DA. At best, reason no 1 in the GTA refusal letter speaks of the proposed development having "a detrimental impact", but does not in terms speak of refusal. Furthermore, the language of the deponent of the affidavit in support (Flaherty at par 28) is ambiguous as to whether refusal of the application is a position maintained by the Heritage Council or whether, consistent with the words of par 28, the contribution of the Heritage Council is as to how "those impacts might be ameliorated". (It is to be noted in this respect that par 30 does not advance the position any further.)
I note that the Heritage Council's legal representative confirmed at the hearing that the Heritage Council would be opposing the grant of development consent unless the Heritage Council's concerns were better accommodated as set out in [21] above.
Secondly, the Heritage Council failed to avail itself of rights available to it to present its position to the Court, and to the parties, consistent with those two paragraphs of the affidavit, or for that matter consistent with the matters set out in the GTA refusal letter. The s 34 conference was listed for 28 February 2020. On 26 February 2020 the Council advised the Heritage Council of its position at the impending s 34 conference: Flaherty affidavit at Annexure D. At the s 34 conference there was no attendance by anyone on behalf of the Heritage Council, and no appearance by the Heritage Council, despite a legislative entitlement for it to appear in s 64 of the LEC Act.
Finally, there is a reference in the affidavit in support (Flaherty at par 27) to there being a "no power" point that the Heritage Council wishes to raise. There is no articulated basis for the assertion, and on its face it is in fact inconsistent with the legislative scheme. That is, the legislative scheme involving integrated development in fact contemplates the prescription for an approval body to issue an approval consistent with the terms of a development consent issued in consequence of the integrated development regime, see s 4.50 of the EPA Act.

Consideration

As the parties submitted, the consideration of s 8.15(2) is a two-step process. Firstly, are the requirements of s 8.15(2) met and, secondly, if they are does the exercise of discretion justify an order for joinder being made see Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44]. The parties referred to Morrison Design at [41]-[54] where relevant considerations on joinder questions are identified including that the section (then s 39A of the LEC Act) was not intended to be a plenary power allowing in all circumstances objectors to non-designated development to become a party to an appeal. In Vella at [18] Moore J considered joinder of an agency of the Crown, there the Department of Education was warranted, distinguishing Morrison Design. In Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11 (Hardie Holdings), relied on by the Applicant, Pepper J refused to join the Roads and Traffic Authority of New South Wales (RTA) as it was not necessary to do so as the issues concerning a Category 1 road were otherwise adequately addressed in the appeal proceedings in her view. Pepper J identified that it would not be appropriate that the RTA be a party whenever a Category 1 road was an issue. In relation to s 64 of the LEC Act, Pepper J noted that it had received little consideration by the Court. That it was an avenue available to the RTA in that case was taken into account. Each case must be determined on its own circumstances.
Any person can apply for an order for joinder as a party in an appeal under Div 8.3 at any time under s 8.15. The Court must form an opinion about the matters in s 8.15(2). As to the matter in s 8.15(2)(a) of whether the person can raise an issue not likely to be sufficiently addressed if that person was not joined as a party, the present circumstances suggest strongly this is the case in relation to the Heritage Council. While the Council has included heritage and related issues in the SOFAC as the Applicant submitted, the Council intends to enter into a s 34 agreement with the Applicant. In making the s 34 agreement the Court must be satisfied that it has the jurisdiction to do so. There will be no merits hearing by the Court in these circumstances. The Heritage Council has been kept informed about what is proposed by the Applicant according to the undisputed chronology and is not currently satisfied that heritage concerns relevant to an item of state significant heritage, Yobarnie Farm, are adequately protected. Unless joined as a party I consider the issue of state heritage significance in this context will not be sufficiently addressed.
I also accept the Heritage Council's submissions that it is in the public interest that it be joined as: 1. The SHR includes items in both private and public ownership that are identified as significant for the whole of NSW and meet one or more of the criteria outlined in s 4A the Heritage Act. 2. Heritage Council members possess qualifications, knowledge and skills in the matters listed in s 8 of the Heritage Act, and as such the Heritage Council is best placed to assist the Court in relation to the heritage issues raised in the proceedings because: 1. the site is an SHR listed item containing unique evidence of the early experimental stages in the development, implementation and demonstration of the Keyline farming system. The evidence of the sustainable transformation of natural landscapes by human agendas is considered in the assessment of significance to be rare; and 2. the proposal puts forward demolition of two dams which form part of the significant fabric and significant earthworks. The dams are proposed to be "reinterpreted" in different locations and the Heritage Council raises concern that there will be a material impact on the heritage significance of the item. 1. The Heritage Council has a special interest in the proceedings and is best placed to assist the Court in relation to the heritage issues raised in the proceedings as the approval authority under Pt 4 of the Heritage Act and Pt 4 Div 4.8 of the EPA Act because: 1. under s 4.50 of the EPA Act, the Heritage Council must grant approval to any application made under Pt 4 of the Heritage Act that is made within three years after the date on which any development consent is granted if, within that three-year period, the development consent has not lapsed or been revoked; and 2. any development consent granted as part of the proceedings, including as part of the s 34 conciliation conference, effectively binds the Heritage Council to that consent in the exercise of its duties in relation to applications for approval made under the Heritage Act. 1. The Heritage Council is best placed to assist the Court in relation to the heritage issues raised in the proceedings due to its cognisance of and expertise in: 1. the requirements and application of other planning controls relevant to this SHR listed site; and 2. the heritage significance of the site.
There is clearly utility in the Heritage Council being joined as a party given its present views are to oppose the DA in its current form, contrary to one of the Applicant's submissions. The joinder of the Heritage Council ensures that the NSW government agency charged with the protection and assessment of matters of state heritage significance can participate in a substantive way in circumstances where it is not satisfied that adequate protection of heritage values will occur if the mooted s 34 agreement is made.
Section 64 provides an entity of the Crown the ability to appear in proceedings. The scope of what this means is uncertain according to Hardie Holdings at [20]-[22]. The Heritage Council stated that s 64 did not provide it with the rights of a party. This did not appear to be disputed by the Applicant, rather it submitted that it did provide rights which would have enabled the Heritage Council to appear and participate at the s 34 conference. Given that s 34 expressly states that parties participate, and is to encourage and enable conciliation between the parties, the extent to which s 64 has a role to play in relation to s 34 processes is not clear. I do not need to resolve the extent to which if at all s 64 enables the Crown to intervene in a s 34 process in order to resolve whether the Heritage Council should be joined as a party.
The Applicant was critical of the "no power" point referred to in Mr Flaherty's affidavit. At issue is s 4.50 of the EPA Act whereby an approval body must act consistently with a development consent and its conditions in subsequent modifications. Whether that is properly characterised as an issue of power, as identified by the Heritage Council, that provision underscores the public interest in having the Heritage Council play a role now as it is otherwise bound by the development consent it would oppose when imposing later controls. I make that statement without having the time to properly consider how s 4.50 operates in circumstances where an approval body has not in fact provided general terms of approval, as in this case, and the potential exists by virtue of s 8.14(4) for the Court to grant development consent in the absence of general terms of approval being provided by an approval body.
Matters to consider in the exercise of discretion whether to make a joinder order include whether there was delay in making this application. I accept the Heritage Council's submission in light of the chronology of events identified at [13] above that it has acted responsibly in seeking information to understand the final form of the DA and making inquiry with the Council as to whether discussions could be undertaken to avoid the need for joinder, see Flaherty affidavit Annexure E.
While the Applicant will suffer prejudice in that a s 34 agreement will not be entered into immediately, any prejudice must be weighed against the real issues sought to be raised by the Heritage Council.
No separate submission was made in relation to UCPR r 6.27 by the Heritage Council. As I have determined that joinder pursuant to s 8.15(2) is warranted I need not consider r 6.27 further.
The order sought in the Heritage Council's notice of motion joining it as a party in these proceedings will be made.

Orders

The Court orders: 1. Pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 the Heritage Council of New South Wales is joined as a party in proceedings No 19/200819 as Second Respondent.

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: 15 April 2020

(2007) 159 LGERA 361

At a glance

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Judgment (11 paragraphs)

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Cases Cited (5)

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