Hassarati v City of Canada Bay Council

Legal Framework

1. Section 8.15(2) of the EP&A Act provides that: (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.
2. It is well established that it is a two-step process, firstly to determine whether one of the limbs of s 8.15(2) is met and, if so, secondly whether joinder is justified in the exercise of the Court's discretion: Campbell Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 96 (Campbell).
3. Rule 6.24 of the Uniform Civil Procedure Rules 2005 provides that: (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. 1. …

Evidence

1. Mr Touma relies on an affidavit of Nazih Touma sworn 3 November 2023. This affidavit annexes a Local Court judgment in proceedings brought by the Applicant under s 14 of the Dividing Fences Act 1991 seeking orders to construct a retaining wall and fence on the boundary with Mr Touma's property, and costs to be borne equally. The Local Court determined that the existing hedge was a sufficient dividing fence and the proposed retaining wall was not necessary for the support or maintenance of a fence, and so dismissed the application (Local Court judgement).
2. Ms Touma's affidavit annexes Mr Touma's objection to the DA (objection) which raised the Local Court judgment; lack of plans (survey, engineering, geotechnical or site line reports); misleading or incorrect information on height differences between the Applicant and Mr Touma's property; the retaining wall exceeds development standards; no justification for the excessive retaining wall; and impact on Mr Touma's amenity and views across Parramatta River, public reserves and below the Mean High Water Mark (MHWM).
3. The affidavit also annexes Mr Touma's proposed statement of facts and contentions (proposed contentions).
4. Further Mr Touma handed up a chain of emails between the Respondent's solicitor and Mr Touma dated 25 to 28 September 2023 which includes the notice to objectors and various replies to queries from Mr Touma (Respondent's emails).

Mr Touma's submissions

1. Mr Touma claims these proceedings are a continuation of the Local Court dispute where the primary issues were privacy and view impacts, and the appeal seeks to re-agitate the conclusions in the Local Court judgment.
2. Mr Touma seeks to raise proposed contentions 1-5 that he says are not part of the Contentions and are not before the Court as follows: 1. The DA should be refused as the retaining wall and privacy screen are excessive and will result in unacceptable view loss from the ground floor living areas and adjacent terrace of Mr Touma's property. The particulars include reference to Clause E3.2 and E3.10 of the CBDCP, and s 6.28(2)(e) of the BC SEPP. 2. Insufficient information to consider impacts on significant seagrass in Hen and Chicken Bay pursuant to s 6.32(3) of the BC SEPP. 3. Insufficient information to demonstrate that the retaining wall will be constructed wholly within the Applicant's property and construction will not undermine Mr Touma's land or impact the waterway. 4. Inadequate survey information on the location of the MHWM. 5. Inaccurate or inconsistent plans showing relative levels and section details.
3. Mr Touma submits that these issues should be considered in the appeal, and if not joined as a party the issues would not be addressed in evidence or submissions (or sufficiently so). Mr Touma submits there is factual similarly to the cases of Lannan v Inner West Council [2020] NSWLEC 20 and Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) 151 LGERA 394; [2007] NSWLEC 113 at [3]-[5] and [8]-[11]. Whilst Mr Touma conceded that the Court would always consider visual matters and view impact which is readily capable of being considered at the site view, he submitted that in the absence of a direct contention and a party to run the contention the Court might not search for this issue. If joined, Mr Touma intends to file the proposed contentions annexed to Mr Touma's affidavit prepared by Greg Boston his town planning expert and lead evidence from Mr Boston on view impacts and other contentions. Mr Touma submits that there is no discretionary reason not to order joinder, and that the omission of view impact strongly favours joinder.
4. Mr Touma submits that the interests of justice favour joinder in circumstances where the principal issues in the Local Court of privacy and view impacts are not raised by the Respondent in this appeal and this dispute has been before the Local Court in which Mr Touma was a party. This circumstance, Mr Touma submits, favours joinder to permit him to be a contradictor when the Respondent is not on these issues.
5. Mr Touma submits joinder is also in the public interest on the basis that he raises the applicability of provisions of the BC SEPP and the impact of the development on significant seagrasses.
6. In the alternative, Mr Touma submits that he is a 'necessary' party for the purpose of r 6.24 of the UCPR on the basis that his views will be directly affected and that the right to maintain those views will be directly affected and curtailed if the DA is approved. Mr Touma relies on the case of Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 (Pegang) at [56] to support the proposition that it is sufficient that proceeding may have a direct affect on a third party to make that party necessary under r 6.24.

Applicant's submissions

1. The Applicant relies on the affidavit of Carl Ku affirmed 10 November 2023, which provides a brief background to the Local Court judgment and the DA, the documents accompanied with the DA and confirms the DA is not designated development. Mr Ku confirms the Applicant's understanding that the Court will visit Mr Touma's property onsite at the hearing to consider view loss, privacy and visual impact. Further Mr Ku provides his opinion as a solicitor that joinder would prolong the hearing and the two days listed will not be adequate.
2. The Applicant submits that Mr Touma's proposed contentions 1-5 are squarely within the Respondent's Contentions as follows: 1. View impacts are already before the Court as it follows from the height issue in contention 1(c) which refers to the expansive and overall height of the fence. Further, compliance with the CBDCP is raised in contention 1(c) and the BC SEPP is raised in contention 1(a). 2. Compliance with s 6.32(3) of the BC SEPP in relation to seagrass areas is raised in contention 1(a) as it refers to Pt 6.3 of the BC SEPP and s 6.32(3) is within that part of the BC SEPP. The Applicant submits that the contentions do not need to refer to each individual section of an instrument, it is sufficient that the issue is covered by the contention. 3. Potential construction impacts is put in issue by contention 1(c) which refers to the expansive and overall height of the fence. 4. The MHWM issue is raised in the Respondent's description of the site and contention 1(a). 5. The alleged inaccuracies and inadequacies with the DA plans are in issue in that the veracity of the evidence will be scrutinised by the Respondent.
3. The Applicant states that whether or not the issues sought to be raised are squarely before the Court, in order to meet the first limb of s 8.15(2)(a) the issue must be one that "should be considered" not merely one the person considers to be desirable of consideration: Campbell at [15].
4. The Applicant relies on the principles in Morrison Design Partnership Pty Ltd v North Sydney Municipal Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 (Morrison) at [50]-[54] (and applied in Campbell) that joinder is not in the interests of justice or the public interest: "51 … The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted. … 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."
5. The Applicant submits that even if not every submission made by Mr Touma is referenced in the Contentions, that is not sufficient to warrant joinder in the public interest: Campbell at [15]. The Applicant submits that it is not in the public interest to join a party to proceedings whose issues are squarely before the Court and capable of being addressed by the parties and their experts: Cassar v Northern Beaches Council [2023] NSWLEC 1588 (Cassar) at [17]. The Applicant submits Mr Touma has had adequate opportunity to raise his concerns and relies on Mr Touma's objection which raised height of the wall and views impacts.

Consideration

1. The body of authorities on joinder before this Court establishes that caution should be exercised before an order is made for joinder: Morrison at [41]-[54] and Jon Garling v Northern Beaches Council [2002] NSWLEC 102 (Garling) at [47]. The power in s 8.15(2) of the EP&A Act is not intended to permit joinder in every case to objectors in non-designated development appeals and it enables granting of a right to be joined in the limited circumstances set out in subss (a) and (b): Garling at [47] and Morrision at [42]-[43].
2. In relation to the first step of s 8.15(2), I firstly consider subs (a) and contention 1-5 proposed to be raised by Mr Touma (par [15] above).
3. Proposed contention 1 seeks to raise that the DA be refused due to the proposal being excessive and will result in an unacceptable view impact. The proposed contention raises compliance with controls in the CBDCP and BC SEPP.
4. I accept that the reference to the proposal being excessive is specifically pleaded in contention 1(c) in the context of compliance with control C7 of the CBDCP. I do not accept the Applicant's submissions that proposed contention 1 has been squarely raised in the Respondent's Contentions, as view loss from Mr Touma's property along the adjoining boundary across the Parramatta River foreshore is not directly raised by the Respondent nor are the specific clauses of the CBDCP or BC SEPP particularised. Though I note that s 6.28(2)(e) is within Pt 6.3 of the BC SEPP and that part is specifically referred to in contention 1(a).
5. I accept the Applicant's submissions that the issue of view impact is likely to be addressed given the framing of the Contentions, and specific reference to maintaining consistency between Mr Touma's property and the Applicant's property. Contention 1(c) provides that fencing within control C7 requires that "…new fencing should complement any original fencing found on adjoining properties and in the street in terms of style, height, materials, colour, texture, rhythm of bays and openings." Further, it notes that though fill was utilised on Mr Touma's property "…the expanse and overall height of the proposed fence is considered excessive and not viewed as consistent with adjoining sites or desirable" and "…height could be reasonably extracted from the structure and service the desired intent and reduce visual bulk."
6. Even if the parties' representatives or experts do not address the Court on the view impact of the alleged excessive bulk and scale (which in my view is likely), Mr Touma raised view impact as part of the public consultation process in his objection. The objection states: "Such excessive retaining wall and fence construction proposed is without precedent in the area and would significantly impact our amenity and views across Parramatta River not only across the side boundary but across the Foreshore Building line and the Mean High Water Mark; impact views to neighbouring properties; be unsightly as viewed from The Parramatta River, Public Reserves and the area accessible below the MHWM via Tingara Lane". This is the only reference to view impact in the objection, and although the objection says that Mr Touma intended to provide a more detailed response, the evidence on the Motion did not include any further submission prior to the appeal. The Court would need to be satisfied that any issues raised in submissions that should be addressed has been addressed prior to determination. Mr Touma's written submissions is likely to be included in the Respondent's bundle of documents which will be tendered into evidence before the Court.
7. Mr Touma will be given a further opportunity to be heard onsite at the s 34AA, and this is evidenced from the notice to objectors sent to Mr Touma from the Respondent. Mr Touma's request to participate in the s 34AA has been acknowledged by the Respondent and the Respondent has asked him whether he will speak or his consulting expert Greg Boston (in the Respondent's email). Mr Touma and or his expert are therefore likely to be heard on this issue given the Applicant has also already conceded that the site visit will include Mr Touma's property and a consideration of any view loss that might arise. The notice of objectors which is yet to be filed by the Respondent can include copies of written submissions or documents which objectors seek to rely on for the purpose of making their oral submissions. As conceded by Mr Touma, view impacts can readily be considered at the site view and it is a relatively straightforward issue. Further, presiding officers regularly deal with view impacts and are likely to be able to readily consider the view impact of this fence and the well-established planning principles in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 with or without the benefit of Mr Touma's expert's evidence.
8. This leads me to find that the Court will not need to go searching for the issue of view impact on Mr Touma as it is likely to be considered under the Respondent's Contentions and sufficiently addressed in Mr Touma's submissions.
9. Proposed contention 2-5 are framed as contentions that relate to insufficient information to enable assessment of the DA.
10. Proposed contention 2 seeks further information on potential impacts on seagrass pursuant to s 6.32(3) of the BC SEPP. I am satisfied that the issue is raised in contention 1(a) as it refers to the overarching Pt 6.3 of the BC SEPP. The first particular of contention 1(a) states that "The Biodiversity and Conservation SEPP, and specifically Part 6.3 Foreshores Waterways Area applies to the site in that it does abut the Foreshores and Waterways Area. The site is located adjacent to zone 2 'Environmental Protection' and Zone 5 'Water Recreation'". Mr Touma had an opportunity to raise this issue in his objection and seek further information be provided, but his objection did not raise it. Mr Touma does not provide any evidence or make any submissions about the basis on which he claims there might be a potential impact on seagrass, he simply asserts it in the draft contentions. I consider that this issue is likely to be addressed under the existing Contentions and Mr Touma has not satisfied the Court that it is an issue that should be raised.
11. Proposed contention 3 seeks further information on potential construction impacts. Mr Touma does not provide any evidence or make any submissions about the basis on which he claims there might be a potential impact on his property during construction, he simply asserts it in the draft contentions. Further, the Respondent's email noted Mr Touma's position that Mr Touma does not consent to any works being carried out on his property and stated that "Matters relating to construction are usually addressed via conditions of development consent." I consider that matters of construction impacts and a construction methodology are capable of being sufficiently addressed without Mr Touma being joined.
12. Proposed contention 4 identifies an alleged inadequacy in that the DA was not accompanied by a survey plan confirming the location of the MHWM. I accept the Applicant's submission that the location of the MHWM is raised in the Contentions. Contention 1(b) states "… provided plans appear to incorrectly define the foreshore area." I consider that this a matter that is in issue and does not warrant joinder.
13. Proposed contention 5 identifies inaccuracies and inconsistencies in the RLs and sections of the architectural plans. I accept the Applicant's submission that the DA plans are in issue in that the veracity of the evidence will be scrutinised by the Respondent. Mr Touma's objection did not raise the insufficient information issue as set out in the proposed contention, and he did not provide any evidence or make any submissions about it other than asserting it. I consider that these relatively narrow consistency issues of RL levels and consistency with sections in the DA plans are matters that may be capable of being addressed by the Court without Mr Touma being joined to the proceedings.
14. I am satisfied that the proposed contentions 1-5 are likely to be sufficiently addressed without Mr Touma being joined to the proceedings and do not warrant joinder under s 8.15(2)(a).
15. I now turn to consider s 8.15(2)(b)(i) and (ii), the interests of justice and the public interest. I am persuaded by the Applicant's submissions that joinder is not in the interests of justice or the public interest, applying the principles in Morrison.
16. I do not accept Mr Touma's submission that the principal dispute between Mr Touma and the Applicant in the Local Court was about privacy and view impacts therefore it is in the interests of justice that he act as contradictor when the Respondent has not raised them. In my view the basis of the dispute between these neighbours and which was considered by the Local Court under the Dividing Fences Act 1991 does not necessarily have any relevance to the merit issues that are in contention (or should be in contention) in the DA appeal. Mr Touma is able to raise any issue he considers desirable in his objection or in oral submissions as an objector at the hearing, and the extent to which they are relevant or given weight is a matter for the presiding officer. However applying the principles in Morrison objectors do not have any entitlement to be an adversary or to veto development and it is not necessary to join a person who wishes to continue the process of objection: at [51] and [54].
17. I do not accept Mr Touma's submission that that public interest is engaged by reference to the provisions in the BC SEPP and the impact of the DA on seagrasses. As stated in consideration of proposed contention 2 above (par [34]), I consider that this issue is likely to be addressed under the existing Contentions and Mr Touma has not satisfied the Court that it is an issue that should be raised. For the same reasons, I find that the public interest does not favour joinder.
18. In relation to the alternative power to order joinder in r 6.24 of the UCPR, I am not persuaded that Mr Touma is a necessary party to these proceedings. I agree with the Applicant's submissions that it is not in the public interest to join a party whose issues are before the Court, are capable of being addressed and are likely to continue to be addressed in the conciliation conference and hearing: Cassar at [17] and Morrision at [55]. I do not agree with Mr Touma's argument on the application of the Pegang judgment, that the right to maintain existing views is an aspect of the legal environment which would be directly affected warranting joinder. Further, as in Morrison, it is not the case that the Court would be deprived of meaningful assistance if Mr Touma were not joined: at [57].
19. In the further alternative, Mr Touma seeks what is referred to as Double Bay Marina orders so that the issues he wishes to raise are properly ventilated. Given my findings above I do not consider it appropriate to make any orders giving leave to adduce evidence, cross examine witnesses or make submissions at the hearing. In circumstances where the parties are both legally represented and have town planning experts engaged, in my view it is not necessary in order to assist the Court.
20. I am satisfied that Mr Touma will continue to be given appropriate further opportunities to participate as an objector and give oral evidence at the hearing of this appeal (set out in par [31] above), as with any other objector to this appeal. The Respondent's has facilitated the wishes of Mr Touma by providing a copy of the Contentions, confirming Mr Touma's opportunity to give oral evidence, responding to his queries about the plans and confirming the Applicant has not sought to amend the DA. These are the same opportunities given to any objector should they wish to give oral evidence, observe the hearing or make inquiries of the Respondent about the appeal, and are part of the usual expectations of the Respondent in facilitating the involvement of objectors in merit appeals.
21. As I am not persuaded that any of the powers to order joinder are engaged by Mr Touma, I need not consider whether to exercise the discretion to order joinder. I note for completeness that I consider the circumstances of the issues sought to be raised by Mr Touma at this stage of the appeal would not favour exercising the discretion.
22. A relevant discretionary matter is the nature of the issues proposed to be raised by the joinder applicant in the context of the overriding objective of the "just, quick and cheap" resolution of the proceedings: s 56 of the Civil Procedure Act 2005, Garling at [47] and Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 (Azzure-Blacktown) at [16]. In circumstances where Mr Touma's proposed contentions have been raised or are likely to be sufficiently addressed, it is not in the interests of justice that he be joined and if joined it would not promote the quick and cheap resolution of this appeal. At the time this Motion was heard, the town planning joint report was imminent and it is likely if joined a supplementary joint conclave of the experts would be required with Mr Touma's expert thereby increasing costs. The joinder of a further party and expert giving concurrent evidence also has the potential to increase the duration of hearing. The multiplicity of parties and experts is generally considered undesirable, and undermines the efficient conduct of litigation and Court practice: Garling at [47] and Azzure-Blacktown at [15]. This is particularly so in the context of a residential development appeal to which s 34AA applies and the Court encourages parties to consider whether any expert evidence is genuinely necessary as unnecessary evidence substantially increases the time of cost of appeals: Practice Note at [23].

Orders

1. I am not satisfied to grant the motion for the reasons set out above, and so I dismiss the Motion.
2. There was no application for costs of the Motion, so I make no order as to costs.
3. The Court orders that: 1. The notice of motion filed 3 November 2023 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: 04 December 2023