Humphrey & Edwards Architects Pty Limited v Council of the City of Sydney

Environmental Planning and Assessment Act 1979 s 79C LEGISLATION CITED: Land and Environment Court Act 1979 s 39A Uniform Civil Procedure Rules 2005 r 31.20(2)(e)

CASES CITED: Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361

APPLICANT: M. Craig QC and S. Duggan SOLICITORS: Mallesons Stephen Jaques

LEGAL REPRESENTATIVES: RESPONDENT: S. Kondilios (solicitor) SOLICITORS: Maddocks

INTERVENOR: P. Rigg (solicitor) SOLICITORS: Deacons

JUDGMENT:

• 1 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

HUMPHREY & EDWARDS ARCHITECTS PTY LIMITED v COUNCIL OF THE CITY OF SYDNEY [2008] NSWLEC 329

1 HIS HONOUR: On 2 July 2008, the applicant, Humphrey & Edwards Architects Pty Limited, lodged an application with Sydney City Council for particular uses within an approved retail and commercial building at 296-298 Botany Road and 284-300 Wyndham Street, Alexandria. The proposed uses involve an increase in additional retail floor space and an additional basement car-parking level. The applicant has appealed against the deemed refusal of the application. The appeal has been listed for hearing on 2-4 February 2009. 2 There is now before me two notices of motion. The first is a motion by the Council seeking to limit the expert evidence to be adduced by the applicant to a strategic planner and a retail expert. The second is a motion by Landcom seeking an order that it be joined as a party, together with consequential orders. 3 Under r 31.20(2)(e) of the Uniform Civil Procedure Rules 2005, the court may make a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue. As to the Council's notice of motion, the nature of any expert evidence that may be called is thus related to the issues raised by the parties. The Council contends that the issues are limited to those of strategic planning and retail. 4 The applicant proposes to call the following expert witnesses: (a) Gabriel Morrish on urban design. (b) Gary Batley on strategic planning. (c) Harvey Sanders on statutory planning. (d) Peter Leyshon on retail. (e) Brian Aratsis on economics. (f) Andy Yeung and Dan Bright on traffic. 5 It can be fairly said, I think, that questions of strategic planning and statutory planning overlap. Similarly, questions of retail and economics overlap, so that there can be no objection to the applicant calling two witnesses addressing each of those issues. 6 The Council's statement of facts and contentions also raises traffic issues and the applicant is thus perfectly entitled to call a traffic expert. The Council's statement of facts and contentions also refers to an issue described as the disconnection between the Green Square Town Centre and the appeal site and refers to a contention that the proposal and the Green Square Town Centre will not function as one cohesive centre. It refers to physical restraints separating the two and other matters relating to the separation of the two, including the length of the retail precinct that would result. 7 It seems to me that this issue also raises questions of urban design and the relationship between the subject site and the Green Square Town Centre, so that the applicant should not be limited in calling evidence on that issue. 8 Accordingly, the Council's notice of motion seeking to limit the expert witnesses to be called by the applicant is dismissed. 9 I now turn to the notice of motion for joinder brought by Landcom, which is the owner of No. 355 Botany Road, Alexandria. That property is within an area described as Green Square Town Centre which is identified as a planned major centre in Sydney's metropolitan strategy. In this respect, it may be said that Landcom is a competitor of the applicant's development. 10 The application for joinder is made under s 39A of the Land and Environment Court Act 1979 ("the Court Act") which enables the court to order the joinder of a person as a party to an appeal. The grounds upon which joinder is sought in the present case is a concern that not all relevant issues under s 79C of the Environmental Planning and Assessment Act 1979 would be sufficiently or at all addressed by the respondent Council; that unless Landcom is joined as a party, appropriate expert evidence will not be available to the Court in relation to the broader retail, economic and social issues raised in its submission lodged with the Council and other matters of detail. 11 Section 39A enables the Court to order the joinder of a person as a party if the court is of the opinion (a) that the person is able to raise an issue that should be considered but would be unlikely to be sufficiently addressed unless the person was joined or (b) that it is in the interests of justice or it is in the public interest that the person be joined as a party to the appeal. 12 In Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361, Preston J described the role of s 39A in the legislative scheme. I can do no better than quote his Honour (at [42] and [43]): I note at the outset that s 39A is facultative in the sense of enabling the Court to join a person to proceedings under the Environmental Planning and Assessment Act of the types listed in s 39A of the Land and Environment Court Act who would not otherwise have a right to be a party to such proceedings. Under the Environmental Planning and Assessment Act , persons who object to development proposed in a development application or to a modification of a development consent, have no right to be joined as a party to proceedings unless the development is classified as designated development. Objectors to development applications for designated development do have a right of appeal under s 98(1) of the Environmental Planning and Assessment Act and have a right to be joined to an appeal in respect of such development by the applicant for development consent under s 97(4).

This is relevant to note because the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation, including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering exercising the power under s 39A. The power under s 39A 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 appeals under ss 96, 96AA, 96A and 97 by dissatisfied applicants for or holders of development consent. Rather, the circumstances in which the Court may order a person to be joined as a party to proceedings of the types listed in s 39A are limited to the circumstances set out in paras (a) and (b) of s 39A.

13 As I understand it, Landcom lodged a submission with the Council objecting to the application which is now the subject of the appeal. There is no suggestion that the Council did not take into account the substance of Landcom's submission or that the matters which Landcom proposes to raise have not been taken into consideration by the Council. The Council has identified the grounds upon which it says the application presently before the court should be refused. In doing so there is, as I have said, no suggestion that Landcom's submission was not adequately considered in the course of the Council's consideration of the application. The matters raised by Landcom in its objection are the same as the issues raised by the Council in the appeal and as to which the Council's expert evidence is directed. 14 The role of objectors to applications for development which is not designated development is a limited one. Unlike designated development, that role is described by Preston J in Morrison Design as follows (at [51] and [52]): Community consultation and public participation should not be viewed as being adversarial. 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.

Community consultation and public participation under the Environmental Planning and Assessment Act are not intended to give the community or affected persons who object to development any entitlement to veto development.

15 The written objection of Landcom in the present case, together with those of any other objectors, will be before the court when it hears and determines the appeal. Moreover, as I have said, the substance of Landcom's objection has been raised by the Council as issues and the Council's expert evidence related to those issues. That is sufficient to bring the issues which Landcom otherwise proposes to raise before the court. That is, the circumstances or considerations for joinder under s 39A of the Court Act are not present in this case. 16 Accordingly, the notice of motion brought by Landcom is dismissed. CRAIG: Your Honour, we would seek costs.

KONDILIOS: Only that my client, your Honour, raised a legitimate concern in class one. I have heard what your Honour has reasoned in judgment about an endeavour to reduce the number of experts without at the same time causing prejudice to the council. That was always our point and that's not something that your own decision has culled. We're in class one. There was a legitimate application made with a genuine endeavour, in the interest of justice and the administration of justice, to contain costs. Beyond that, I can't take it any further.

RIGG: Your Honour, with the matter today, there's been no costs incurred by the applicant. The applicant was here on a motion by a party and the hearing of the motion by Landcom has not in any significant way expanded the costs incurred by their attendance otherwise to hear the motion put on by another party in those proceedings.

HIS HONOUR: Well that would be a matter for the costs assessor. These motions are not part of the hearing or determination of the merits of the appeal and costs should follow the event. In each motion there will be an order that the applicant on the motion pay the costs of the motion.

I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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.