[2003] NSWLEC 195
Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361
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[2003] NSWLEC 195
Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361
Judgment (20 paragraphs)
[1]
JUDGMENT
Registrar: This notice of motion was listed before me for hearing on 1 May 2024. The notice of motion was filed by Catherine Power who is seeking to be joined to the proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979, or in the alternative rules 6.24 or 6.27 of the Uniform Civil Procedure Rules 2005 (UCPR) or in the second alternative seeks orders for her to participate in the proceedings under a Double Bay Marina Order.
In support of her notice of motion, Ms Power relied on the affidavit of Ms Penklis and a number of plans were tendered along with a draft Statement of Facts and Contentions which Ms Power would rely on if joined.
The application is opposed by the Applicant and the Council neither consents nor opposes the orders sought in the motion.
The substantive proceedings concern an appeal against the deemed refusal by the Council of a development application for alterations and additions to the existing residential structures on the site and subdivision of the site into 2 lots. Ms Power owns the site immediately adjacent to the development site.
The Applicant lodged its development application with the Council on 10 August 2023. That development application was notified to surrounding property owners from 18 September 2023 to 5 October 2023 and then notified again on 5 October 2023 to 20 October 2023 to a broader group of surrounding property owners.
On 22 December 2023, Ms Power was provided with a copy of Council's Statement of Facts and Contentions filed on 20 November 2023 by Council's solicitors.
On 7 March 2024, Ms Penklis was notified by Council that Ms Power would be provided the opportunity to make submissions as an objector on site at the conciliation conference and hearing fixed for 20 and 21 May 2024.
On 2 April 2024, Ms Power sent to the Council reports she had caused to be prepared in planning, landscaping and heritage. On 5 April 2024, Council wrote to Ms Penklis advising that Ms Power's submission (including the 3 reports on planning, landscaping and heritage) had been provided to Council's experts for consideration prior to their joint expert conferencing.
As Ms Power has argued for joinder using a number of powers, I will consider each in turn now.
Section 8.15(2) of the Environmental Planning and Assessment Act (EPA Act) provides:
(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.
Consideration of an application under s 8.15(2) is a two-step process in which I must first determine whether one of the limbs of s 8.15(2) is met and second, whether to exercise my discretion to make an order: Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243.
Before I am able to order joinder, Ms Power is required to satisfy me that she is able to raise an issue which should be considered in relation to the appeal but which would not be likely to be sufficiently addressed without her joinder.
Ms Power's draft Statement of Facts and Contentions sets out the matters which she is seeking to raise. These issues can broadly be categorised as an encroachment contention, a heritage contention and an amenity/landscaping contention.
Turning first to the encroachment contention, Ms Power has prepared a survey which was tendered at the hearing of this motion alleging an encroachment of 17.5cm onto her land of an existing building on the Applicant's land.
Ms Power's submitted to me that as there is an encroachment, her owner's consent is required in order for the Applicant to carry out his proposed development. She argues that as owner's consent is a jurisdictional matter that it follows that she should be joined to the proceedings.
The Applicant has submitted that he does not accept that there is any encroachment. The Applicant submitted that his proposed development does not seek development consent to carry out any work on Ms Power's land, and accordingly, that the Court is not being asked to approve any works on Ms Power's land. He submits that no landowner's consent is required and no jurisdictional question is raised.
I agree with the Applicant.
Even if the encroachment exists, it is not relevant to the determination of the subject appeal and rectification, or regularisation of that encroachment can be pursued by either Ms Power or the Applicant in another forum.
It should also be noted, that the lack of an explicit mention of a jurisdictional issue does not mean that the Court will not undertake the requisite consideration of that issue. As Preston CJ noted in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]:
"Before dealing with ... a merit issue of whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met. The Council accepted that these other jurisdictional preconditions can be met, but noted that the Court, exercising the functions of the consent authority on the appeal, needs to be satisfied itself that the preconditions have been met."
It follows then that even if I am incorrect in my finding and that an alleged encroachment means that Ms Power's owner's consent is required, I repeat my observations from JCP Constructions & Development Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1204 at [12] - [19]:
"…the presiding judge or commissioner must be satisfied on all merit and jurisdictional issues before an order is made to grant consent.
Returning now to the test for joinder. The first proposed ground for joinder is a jurisdictional point [and].. I make these observations. Any orders for the grant of consent can only be made if the presiding officer has been satisfied of the proposal on … all jurisdictional preconditions…
This has always been the case.
It also means that when a presiding officer is presented with consent orders for a proposal that she does not consider to accord with the law and/or capable of consent on its merits, then she will refuse to make the orders.
So although this jurisdictional issue is not raised in the SOFC, it is important to note that it is an express obligation of the presiding officer to consider and give reasons about this jurisdictional issue.
…
As such, I am satisfied that … this issue is sufficiently before the Court and will be addressed."
I adopt the same approach for Ms Power's proposed Contention 1. If the alleged encroachment is found by the Commissioner to be a jurisdictional matter, the Court is duty bound to consider it. Accordingly, it is not necessary for the joinder of Ms Power for this issue to be sufficiently addressed.
Turning now to Ms Power's proposed heritage contentions.
Ms Power's property is a heritage item listed in Pt 1 of Sch 5 of the Burwood Local Environmental Plan 2012. She submits that the Council's Statement of Facts and Contentions does not specifically:
1. raise the impact of the proposed development on that heritage item;
2. set out one of the objectives in clause 4.7.2 of the Burwood Development Control Plan 2013 (Burwood DCP); and
3. refer to the proposing landscaping and its impact on the locality or the retaining wall between Mr Power's property and the site of the proposed development.
As Ms Power identifies in her submissions, not every particular she wishes to raise is explicitly set out in the Council's Statement of Facts and Contentions. However, that is not the test for determining an application for joinder.
In support of this approach, I am guided by the position of Pain J in Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 at [36]:
"…The fact there are issues the [Intervenor] wishes to raise which the Council does not wish to is not sufficient to warrant the automatic application of [the power for joinder]…"
My view is that heritage issues Ms Power seeks to raise are sufficiently addressed by Council in its Statement of Facts and Contentions, and although they are not detailed to the level of specificity that Ms Power's wishes, I consider them to be sufficient to encompass her heritage concerns.
The final issue on which Ms Power seeks joinder is amenity and landscape. These contentions concern the location of planting and the types of plants proposed to be used in the landscaping, loss of privacy to her property and the bulk and scale of the proposed development. Ms Powers submitted that she seeks joinder on this basis because the references to the impacts on her property in contention 5 of the Council's Statement of Facts and Contentions are "weak". She further submits that contention 4 of the Council's Statement of Facts and Contentions which deals with the privacy and amenity impacts, only reference the subdivided lot in the chapeau to the contention and, as such, her concerns about privacy and amenity are not capable of being sufficiently addressed.
I disagree with this approach.
Contention 5 raises the amenity impacts to Ms Power's property so that they are sufficiently capable of being addressed by the Court. And although it is correct that the chapeau to contention 4 refers to the new subdivided lot, the particulars of the contention and the clauses of the Burwood DCP referred to are in relation to impacts to neighbouring properties, which would include Ms Power's property.
Furthermore, the concerns regarding the landscape plans and the plantings have been raised by Council in its Statement of Facts and Contentions as an insufficient information contention.
My view is that these landscaping and amenity issues will be sufficiently addressed by the Court without the joinder of Ms Power.
The second limb in the test for joinder in s 8.15(2)(b) has two grounds: the interests of justice and the public interest. I now consider these two grounds in turn.
In relation to the first ground, it is not necessary to join Ms Power's in the interests of justice.
As evidenced in the affidavit of Ms Penklis and set out earlier in this decision, Ms Power has been given numerous and meaningful opportunities to make her concerns known and I am guided by Preston's J decision in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 where at paragraph [53] he states:
"A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission."
In relation to the second ground in subs 8.15(2)(b), it is not necessary to join Ms Power having regard to the public interest. As I have said, each of the issues that Ms Power wishes to raise have been raised in written submission by her and adequately canvassed. Those issues are evident in the Council's Statement of Facts and Contentions and are capable of being sufficiently addressed during the course of the appeal. In addition, Ms Power will have the opportunity on site to address the Commissioner about the issues that concern her.
This is not a case where the Court would not be able to obtain meaningful assistance as to the issues proposed to be agitated by Ms Power. These issues have been raised and are evident in the material before the Court.
For these reasons, I find that the test for joinder under s 8.15(2) of the EPA Act to not be satisfied.
It was put to me that if the test for joinder under s 8.15(2) of the EPA Act was not satisfied, that joinder was sought in the alternative under rr 6.24 and 6.27 of the UCPR.
The power to order joinder is contained in r 6.24 of the UCPR. Rule 6.27 of the UCPR gives me the discretion as to whether I join a third party as an applicant or a respondent in proceedings.
Rule 6.24(1) states 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."
Ms Power is not someone who ought to have been joined to these proceedings and based on my findings earlier in this decision, I do not consider it necessary for Ms Power to be joined in order to determine all the matters in dispute.
In relation to the second alternative that I make a Double Bay Marina Order under s 38(2) of the Land and Environment Court Act 1979, I am guided by Jagot J who stated in relation to s 38(2), in her decision Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 at [5]:
"…Whiles 38(2) is not similarly constrained, the types of consideration that are set out in s [8.15(2)] no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order."
Ms Power has brought the issues she considers relevant to the attention of the Council. Council has also confirmed that those submissions were provided to the parties' experts. Ms Power does not need to be joined as a party so as to be able to continue arguing these particular submissions. As previously set out in this decision, Ms Power will have the opportunity to address the Court at the conciliation and hearing of these proceedings. Ms Power's written submissions to Council in respect of the Applicant's proposed development will also be put before the Commissioner in the usual course.
For these reasons, I decline to grant relief in the form of a Double Bay Marina Order.
I find that the tests for joinder under s 8.15(2) of the EPA Act, r 6.24 of the UCPR to not be satisfied and decline to make a Double Bay Marina Order.
The Court orders that:
1. The motion be dismissed.
[2]
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: 16 May 2024
[3]
(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 -
[4]
(i) it is in the interests of justice, or
(ii) it is in the public interest,
[5]
that the person be joined as a party to the appeal.
[6]
Consideration of an application under s 8.15(2) is a two-step process in which I must first determine whether one of the limbs of s 8.15(2) is met and second, whether to exercise my discretion to make an order: Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2)[2012] NSWLEC 243.
Before I am able to order joinder, Ms Power is required to satisfy me that she is able to raise an issue which should be considered in relation to the appeal but which would not be likely to be sufficiently addressed without her joinder.
Ms Power's draft Statement of Facts and Contentions sets out the matters which she is seeking to raise. These issues can broadly be categorised as an encroachment contention, a heritage contention and an amenity/landscaping contention.
Turning first to the encroachment contention, Ms Power has prepared a survey which was tendered at the hearing of this motion alleging an encroachment of 17.5cm onto her land of an existing building on the Applicant's land.
Ms Power's submitted to me that as there is an encroachment, her owner's consent is required in order for the Applicant to carry out his proposed development. She argues that as owner's consent is a jurisdictional matter that it follows that she should be joined to the proceedings.
The Applicant has submitted that he does not accept that there is any encroachment. The Applicant submitted that his proposed development does not seek development consent to carry out any work on Ms Power's land, and accordingly, that the Court is not being asked to approve any works on Ms Power's land. He submits that no landowner's consent is required and no jurisdictional question is raised.
I agree with the Applicant.
Even if the encroachment exists, it is not relevant to the determination of the subject appeal and rectification, or regularisation of that encroachment can be pursued by either Ms Power or the Applicant in another forum.
It should also be noted, that the lack of an explicit mention of a jurisdictional issue does not mean that the Court will not undertake the requisite consideration of that issue. As Preston CJ noted in HP Subsidiary Pty Ltd v City of Parramatta Council[2020] NSWLEC 135 at [16]:
[7]
"Before dealing with ... a merit issue of whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met. The Council accepted that these other jurisdictional preconditions can be met, but noted that the Court, exercising the functions of the consent authority on the appeal, needs to be satisfied itself that the preconditions have been met."
[8]
It follows then that even if I am incorrect in my finding and that an alleged encroachment means that Ms Power's owner's consent is required, I repeat my observations from JCP Constructions & Development Pty Ltd v Woollahra Municipal Council[2022] NSWLEC 1204 at [12] - [19]:
[9]
"...the presiding judge or commissioner must be satisfied on all merit and jurisdictional issues before an order is made to grant consent.
Returning now to the test for joinder. The first proposed ground for joinder is a jurisdictional point [and].. I make these observations. Any orders for the grant of consent can only be made if the presiding officer has been satisfied of the proposal on ... all jurisdictional preconditions...
This has always been the case.
It also means that when a presiding officer is presented with consent orders for a proposal that she does not consider to accord with the law and/or capable of consent on its merits, then she will refuse to make the orders.
So although this jurisdictional issue is not raised in the SOFC, it is important to note that it is an express obligation of the presiding officer to consider and give reasons about this jurisdictional issue.
...
As such, I am satisfied that ... this issue is sufficiently before the Court and will be addressed."
[10]
I adopt the same approach for Ms Power's proposed Contention 1. If the alleged encroachment is found by the Commissioner to be a jurisdictional matter, the Court is duty bound to consider it. Accordingly, it is not necessary for the joinder of Ms Power for this issue to be sufficiently addressed.
Turning now to Ms Power's proposed heritage contentions.
Ms Power's property is a heritage item listed in Pt 1 of Sch 5 of the Burwood Local Environmental Plan 2012. She submits that the Council's Statement of Facts and Contentions does not specifically:
[11]
(1) raise the impact of the proposed development on that heritage item;
(2) set out one of the objectives in clause 4.7.2 of the Burwood Development Control Plan 2013 (Burwood DCP); and
(3) refer to the proposing landscaping and its impact on the locality or the retaining wall between Mr Power's property and the site of the proposed development.
[12]
As Ms Power identifies in her submissions, not every particular she wishes to raise is explicitly set out in the Council's Statement of Facts and Contentions. However, that is not the test for determining an application for joinder.
In support of this approach, I am guided by the position of Pain J in Kavia Holdings Pty Limited v Sydney City Council(2003) 127 LGERA 293; [2003] NSWLEC 195 at [36]:
[13]
"...The fact there are issues the [Intervenor] wishes to raise which the Council does not wish to is not sufficient to warrant the automatic application of [the power for joinder]..."
[14]
My view is that heritage issues Ms Power seeks to raise are sufficiently addressed by Council in its Statement of Facts and Contentions, and although they are not detailed to the level of specificity that Ms Power's wishes, I consider them to be sufficient to encompass her heritage concerns.
The final issue on which Ms Power seeks joinder is amenity and landscape. These contentions concern the location of planting and the types of plants proposed to be used in the landscaping, loss of privacy to her property and the bulk and scale of the proposed development. Ms Powers submitted that she seeks joinder on this basis because the references to the impacts on her property in contention 5 of the Council's Statement of Facts and Contentions are "weak". She further submits that contention 4 of the Council's Statement of Facts and Contentions which deals with the privacy and amenity impacts, only reference the subdivided lot in the chapeau to the contention and, as such, her concerns about privacy and amenity are not capable of being sufficiently addressed.
I disagree with this approach.
Contention 5 raises the amenity impacts to Ms Power's property so that they are sufficiently capable of being addressed by the Court. And although it is correct that the chapeau to contention 4 refers to the new subdivided lot, the particulars of the contention and the clauses of the Burwood DCP referred to are in relation to impacts to neighbouring properties, which would include Ms Power's property.
Furthermore, the concerns regarding the landscape plans and the plantings have been raised by Council in its Statement of Facts and Contentions as an insufficient information contention.
My view is that these landscaping and amenity issues will be sufficiently addressed by the Court without the joinder of Ms Power.
The second limb in the test for joinder in s 8.15(2)(b) has two grounds: the interests of justice and the public interest. I now consider these two grounds in turn.
In relation to the first ground, it is not necessary to join Ms Power's in the interests of justice.
As evidenced in the affidavit of Ms Penklis and set out earlier in this decision, Ms Power has been given numerous and meaningful opportunities to make her concerns known and I am guided by Preston's J decision in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning(2007) 159 LGERA 361; [2007] NSWLEC 802 where at paragraph [53] he states:
[15]
"A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission."
[16]
In relation to the second ground in subs 8.15(2)(b), it is not necessary to join Ms Power having regard to the public interest. As I have said, each of the issues that Ms Power wishes to raise have been raised in written submission by her and adequately canvassed. Those issues are evident in the Council's Statement of Facts and Contentions and are capable of being sufficiently addressed during the course of the appeal. In addition, Ms Power will have the opportunity on site to address the Commissioner about the issues that concern her.
This is not a case where the Court would not be able to obtain meaningful assistance as to the issues proposed to be agitated by Ms Power. These issues have been raised and are evident in the material before the Court.
For these reasons, I find that the test for joinder under s 8.15(2) of the EPA Act to not be satisfied.
It was put to me that if the test for joinder under s 8.15(2) of the EPA Act was not satisfied, that joinder was sought in the alternative under rr 6.24 and 6.27 of the UCPR.
The power to order joinder is contained in r 6.24 of the UCPR. Rule 6.27 of the UCPR gives me the discretion as to whether I join a third party as an applicant or a respondent in proceedings.
Rule 6.24(1) states that:
[17]
"(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."
[18]
Ms Power is not someone who ought to have been joined to these proceedings and based on my findings earlier in this decision, I do not consider it necessary for Ms Power to be joined in order to determine all the matters in dispute.
In relation to the second alternative that I make a Double Bay Marina Order under s 38(2) of the Land and Environment Court Act 1979, I am guided by Jagot J who stated in relation to s 38(2), in her decision Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council[2007] NSWLEC 205 at [5]:
[19]
"...Whiles 38(2) is not similarly constrained, the types of consideration that are set out in s [8.15(2)] no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order."
[20]
Ms Power has brought the issues she considers relevant to the attention of the Council. Council has also confirmed that those submissions were provided to the parties' experts. Ms Power does not need to be joined as a party so as to be able to continue arguing these particular submissions. As previously set out in this decision, Ms Power will have the opportunity to address the Court at the conciliation and hearing of these proceedings. Ms Power's written submissions to Council in respect of the Applicant's proposed development will also be put before the Commissioner in the usual course.
For these reasons, I decline to grant relief in the form of a Double Bay Marina Order.
I find that the tests for joinder under s 8.15(2) of the EPA Act, r 6.24 of the UCPR to not be satisfied and decline to make a Double Bay Marina Order.