Iris Hotels Casula Property Pty Ltd v Liverpool City Council

Background

1. On 14 October 2021, the Applicant lodged the Development Application with the Respondent.
2. On 20 December 2021, the Applicant filed Class 1 proceedings against the Respondent's deemed refusal of the Development Application.
3. On 18 January 2022, the Respondent filed its Statement of Facts and Contentions in these proceedings (Contentions).
4. On 20 January 2022, at the first directions hearing, the proceedings were set down for a s.34 conciliation conference on 5 April 2022.
5. Between 20 January 2022 and 3 February 2022, the Development Application was publicly notified by the Respondent. During this period a number of submissions were received, which included a detailed written submission and petition prepared by the Community Group against the Development Application.
6. On 11 February 2022, the Applicant filed its Statement of Facts and Contentions in Reply (Reply).
7. On 31 March 2022, the Applicant's solicitor received an email from the solicitor for the Community Group requesting to participate in the s.34 conciliation conference as an 'observer' on the basis that the filing of a Notice of Motion seeking to be joined to the proceedings was foreshadowed. The Applicant did not consent to the Community Group's participation as an 'observer'.
8. On 5 April 2022, at the parties participated in the s.34 conciliation conference before Bradbury AC. The Community Group chose not to make an oral submission at the commencement of the s.34 conference. Bradbury AC terminated the s.34 conciliation conference on the same date.
9. On 12 April 2022, the Court gave directions for the filing and service of a Notice of Motion to amend the Development Application.
10. On 19 April 2022, the Respondent filed a Notice of Motion seeking leave to amend its Contentions.
11. On 20 April 2022 the Community Group's Motion for Joinder was heard at which point the decision was reserved.
12. It is important to note that following the hearing of the Community Group's Motion for Joinder that on 22 April 2022, the Applicant filed a Notice of Motion seeking leave to amend the Development Application. On 29 April 2022, leave was granted to the Applicant to amend the Development Application. On the same day leave was granted to the Respondent to file an Amended Statement of Facts and Contentions.

Principles for Joinder Applications

1. The power to order joinder resides in s 8.15(2) of the EPA Act which 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.
2. This means that applications for joinder under s 8.15(2) involve a two-step process. First, to determine whether the requirements of the section are met. Secondly, whether an order for joinder is justified in the exercise of the Court's discretion.
3. Exhibited to the affidavit of Ms Svenson is a draft of the Contentions proposed to be raised by the Community Group which are as follows: "The Intervenor contends that the Development Application should be refused for the following reasons: The proposed development will have an unacceptable social impact as a result of the alcohol-related harms. Particulars a. The degree of infiltration of alcohol-related harms and disturbances, including an increased likelihood of motor vehicle accidents, within surrounding communities and suburbs arising from the proposed development, beyond a one kilometre radius from that development. b. the proposed development will cause an increase in domestic violence, particularly as a result of the greater availability of alcohol to the community after 10 pm. c. the proposed development will cause an increase in the incidence of health-related problems caused by alcohol, including sexually transmitted infection, liver cirrhosis, alcohol use disorders and injuries from assault and motor vehicle accidents. d. the degree of exposure of children and the community to alcohol signage and advertising is unacceptable. e. the mitigation measures proposed by the applicant to mitigate against the social impacts of the development including alcohol-related harm are inadequate."
4. I turn now to the Contentions filed by the Respondent on 18 January 2022. At Contention 9 the Respondent states: "The Development Application should be refused, as although a Social Impact Assessment has been submitted by the Applicant, the Respondent's notification period has not yet concluded and additional submissions may be received. Therefore, a comprehensive communication and adequate consultation with the impacted communities and stakeholders in accordance with the Respondent's Social Impact Assessment Policy and the objectives of the Liquor Act 2007 (NSW) is required. Particulars (a) The Respondent is concerned about the significant socio-economic impact of increased availability of alcohol and problem gambling in the Liverpool Local Government Areas, particularly in the low SEIFA indexed regions. Local agencies including those working with victims of domestic violence, Housing NSW, Liverpool Community Kitchen and Hub and Mission Australia all report that alcohol and gambling-related harm have been major contributors to homelessness when seeking assistance with temporary accommodation. The Proposed Development may intensify that risk. (b) The Proposed Development provides easy access to liquor and gaming machines, which would be a frequent destination of vulnerable groups of this suburb, which in turn might have a detrimental effect of the socio-economic stability. The proximity of the proposed liquor and gambling venue to a large school and child minding facility, public housing and other disadvantaged residents, refugee services, places of worship and medical facilities should be carefully considered. The concerns raised by the local residents should be addressed during determination process of this Development Application. (c) The Site is not adequately accessible by public transport at late night trading hours. The amenity and safety of the adjacent residential developments will be at risk during the closing hours. Strategies for smooth exit of patrons, i.e. contract local taxi service upon request of patrons, CCTV footage and at least one licensed uniformed security guard from 8.00 pm to 12.30 pm on Monday toe Sunday may not be sufficient. (d) The Proposed Development does not adequately address the likely social impacts in the locality, in accordance with section 4.15(1)(b) of the EP&A Act."
5. By the Applicant for joinders own submissions, it concedes that the issues it proposes to raise are largely addressed by this contention.
6. The only conclusion that can be drawn from this is the finding that the issues the Community Group proposes to raise are before the Court and will be sufficiently addressed by the parties to the proceedings.
7. As such this limb of the test for joinder fails.
8. It is worth noting at this point that following the hearing of the application for joinder, leave was granted for the Respondent to file and serve an Amended Statement of Facts and Contentions and Contention 9 was amended substantially as to read as follows: "The Development Application should be refused because the proposal is likely to have serious adverse social impacts arising from the introduction of a licensed premises into a highly vulnerable community and locality, noting the likelihood that these impacts cannot be adequately mitigated. Particulars (a) The Aims of the LLEP 2008 and the Objectives in Part 1, Section 26 of the DCP state: 'Liverpool Local Environmental Plan 2008 1.2 Aims of Plan (1) This Plan aims to make local environmental planning provisions for land in Liverpool in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act. (2) The particular aims of this Plan are as follows - … (b) to foster economic, environmental and social well-being so that Liverpool continues to develop as a sustainable and prosperous place to live, work, study and visit,…"' Liverpool Development Control Plan 2008 27. Social Impact Assessment … Objectives a) To ensure distributional equity of positive and negative social impacts of development, to help build healthier communities where people want to live and work; b) To apply a precautionary approach to, and encourage effective community engagement and participation in, planning and development decisions that may have significant impact; c) To ensure social impact assessments are undertaken in a consistent and transparent manner, by an appropriately trained person, and contain the information required to enable objective evaluation of potential impacts by Council." (b) Adverse social impacts associated with the development application are likely to include the following: i. A significant increase in alcohol-related harm including harm related to physical and mental health, domestic violence, personal and family distress, and exacerbation of existing alcohol-related health and welfare issues in the locality; ii. A significant increase in existing levels of alcohol-related crime including Assault (Domestic Violence) and Malicious Damage in the immediate locality where there are already hotspots for such crimes; and likely introduction of problems related to Assault (Non-Domestic) associated with the new hotel in this socio-economic context; iii. Amenity impacts related to noise, nuisance and annoyance from patrons returning to parked car and/or residences in nearby streets including late at night; iv. Introduction of a licensed premises into a highly vulnerable immediate locality/community that makes it far more accessible than existing hotels, and highly visible and within easy walking distance of highly vulnerable populations, public housing communities, and those with existing drug and alcohol problems; v. Whilst not considering electronic gaming machined (EGMs) per se, the likelihood that the 30 EGMs and late night trading will attract the most vulnerable members of the local community, including late at night, who are more likely to be alcohol affected, and at risk of flow on effects related to increased domestic violence and other alcohol-related harms, and as victims of crime; vi. Vehicle and pedestrian safety impacts in surrounding streets to the west of Hume Highway for patrons seeking to travel south on the Hume Highway including for cars exiting the premises in a highly trafficked environment; and for pedestrians leaving the premises, in particular in relation to increased risk of being adversely affected by alcohol consumption on the Hume Highway and in surrounding streets; vii. Adverse amenity and safety impacts on sensitive uses including the primary school, two crisis/DV refuges, child care centres and NDIS providers, residences, as well as on adjacent fast food premises; viii. Potential issues related to accommodation provided with the licenced hotel for guests who may be more vulnerable, and with regard to ready access to alcohol; ix. The lack of efficacy of administrative controls in the proposed Plan of Management in this context. (c) Having regard to the adverse social impacts associated with the development application and the inability of a management plan to address those social impacts, the development application should be refused."
9. The amendment to Contention 9 by the Applicant further confirms my finding that the issues proposed to be raised by the Community Group will be sufficiently before the Court and as such this test of the limb for joinder fails.
10. It has been put to me that I am required to consider the difference in the nature of the evidence proposed to be led by the parties concerning these contentions and the evidence proposed to be led by the Community Group as a result of the findings of Moore J in the matter Suh v Liverpool City Council [2016] NSWLEC 25 (Suh v Liverpool City Council).
11. The matter of Suh v Liverpool City Council concerned the same Community Group, the same Respondent and a similar development. In that case Moore J assessed the nature of the evidence proposed to be led by the parties and the Community Group and concluded that the nature of the evidence proposed to be led by the Community Group was sufficiently different and allowed the joinder.
12. My view is that this goes beyond the test for joinder and I decline to make any assessment of the evidence in this test for joinder. Furthermore, there is a long line of authority which holds that there is no property in a witness. The Council agrees to the joinder of the Community Group, however, as a party to the proceedings the Council has always been able to seek the necessary leave to call evidence from the Community Group's proposed experts and I do not see it necessary to join the Community Group to allow this to occur.
13. I move on now to the consider whether it is in the public interest or in the interests of justice to join the Community Group to these proceedings.
14. In considering this limb of the test for joinder I am guided by applicable principles succinctly set out in the judgment of the Chief Judge in Morrison Design Partnership Pty Ltd v North Sydney Municipal Council and Director-General of the Department of Planning [2007] NSWLEC 802 (Morrison v North Sydney Municipal Council) dealing with the identical predecessor provision in s 39A of the Land and Environment Court Act 1979 where he said at paragraph [50] to [54]: "50 To some extent, the application of the Owners Corporation misunderstands the purpose of public consultation and public participation. Meaningful community involvement can, of course, be beneficial in the development assessment process. It can provide members of the community with an understanding of what is happening in their area and how the proposed development may impact particularly on their interests; enable members of the community to participate by making submissions to the consent authority; inform the consent authority; and improve planning decisions. 51 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. 52 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. The planning scheme established by the Environmental Planning and Assessment Act vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination. 53 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. 54 The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. 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."
15. My view is that the interests of justice are not served by joining the Community Group as a party or by granting it leave to lead its own expert evidence, to cross examine experts and other witnesses and to make submissions where the issues it seeks to raise are contended by the Respondent. The joinder of the Community Group would add unnecessarily to the complexity and cost of the proceedings and the witnesses it proposes to call are able to be called by the parties to the proceedings.
16. For these same reasons I find that joinder of the Community Group is not in the public interest.
17. My view is that there is no discretionary reason to grant the orders sought in the Community Group's Notice of Motion.

Orders

1. The Court orders that:
2. (1) The Notice of Motion for joinder 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: 07 July 2022