Jon Garling v Northern Beaches Council

Hearing of the Joinder Application

1. From at least 12 April 2022, Jefferies has been aware of the date of the s 34AA conciliation conference and hearing. She sought legal advice about the Class 1 appeal on 25 May 2022. It was not, however, until 22 July 2022, that the application for joinder was made by her.
2. At the first return date of the motion for joinder before the Court on 29 July 2022, the Registrar referred the matter for hearing instanter before the Duty Judge. This came as a surprise to the parties who were neither expecting nor prepared to have the matter heard on that day (they understood that it would be specially fixed for hearing before a judge). Consequently, the matter was set down for hearing by the Duty Judge at 4.30 pm on 4 August 2022, the first mutually convenient date and time of the parties and the Court. It was set down at that time because the parties assured the Court that the matter would take approximately 90 minutes to hear.
3. This was not the case and the matter took nearly three hours to hear, with the matter adjourned to today for the delivery of ex tempore reasons after the Court had concluded hearing a Class 5 matter.
4. Due to the urgency of the application, these reasons have been prepared without the benefit of a transcript and in a truncated time period. The urgency has been almost entirely the result of the late application for joinder by Jefferies.
5. Almost all of the hearing time was occupied by counsel for Jefferies, Peter Tomasetti SC. In the event, due to the lateness of the hour, a time limit was imposed upon him.
6. From the outset, Tomasetti SC was told that given the truncated hearing time and the urgency of the matter that he had to specifically take the Court to the evidence he would be relying upon (that is, time did not permit the wholesale tender of documents to be read later at the Court's leisure). The Court explicitly told Tomasetti SC that the Court would not receive documents into evidence absent any explanation as to their relevance. Accordingly, Tomasetti SC tendered the following documents: 1. the Council's SOFAC; 2. the agreed statement of facts filed on 29 July 2022; 3. the Class 4 consent orders; 4. the SEE; 5. photographs of the brushwood fence between the Garling and Jefferies's properties referred to in the Jefferies's affidavit; and 6. a Draft Second Respondent Statement of Facts and Contentions ("the draft Jefferies SOFAC").
7. The Court was not taken to the 2016 consent, the Mod 3 application, the determination by the Council of the Mod 3 application, the Class 1 application, or any of Garling's Statements of Facts and Contentions.

Applicable Legal Principles

1. The applicable legal principles were helpfully summarised in the written submissions prepared by Jacinta Reid, counsel for Garling. Despite being pressed to do so on several occasions, Tomasetti SC declined to indicate to the Court whether he disagreed with the summary. Instead, he referred the Court to comments made by Preston J In Avalon Beach Property Pty Limited CAN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council (2017) 227 LGERA 393; [2017] NSWLEC 130. It was the only authority that he took the Court to.
2. In my view, Reid has correctly set out the relevant legal principles to be applied in determining an application for joinder under s 8.15(2) of the EPAA. They are as follows.

Legal Principles

1. Section 38(2) of the Land and Environment Court Act 1979 ("the LEC Act") provides: 38 Procedure … (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.
2. The applicable principles in relation to joinder applications in Class 1 proceedings have been stated in a number of decisions of this Court, albeit primarily in the context of applications under s 39A of the LEC Act which is in the same terms as s 8.15(2) of the EPAA.
3. However, as was stated by Jagot J in Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 (at [5]): 5 Under s 39A of the Land and Environment Court Act, the Court may only exercise the power to join a person as a party to these proceedings if it forms an opinion either 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 that it is in the interests of justice or the public interest that the person be joined as a party to the appeal. While s 38(2) is not similarly constrained, the types of consideration that are set out in s 39A no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order.
4. The Court's approach to joinder applications of this kind was summarised in Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5 by Craig J at [16]: 16 The caution that should be exercised before joinder in circumstances such as the present is, if I may respectfully say so, appropriately identified in the judgment of the Chief Judge of this Court in Morrisson Design Partnership Pty Ltd v North Sydney Council and the Director-General of the Department of Planning [2007)] NSWLEC 802; (2008) 159 LGERA 361. In particular, I refer to the observations made by his Honour as to the distinction that the legislature has drawn between development appeals involving objectors to designated development and those appeals in respect of development that are not so classified. Neither the power of joinder provided by s 39A nor the utilitarian application of "Double Bay Marina" participation should be seen as the provision of a plenary power to allow, in each and every circumstance, objectors to development to be joined or participate in a development appeal, with separate representation. As has been made clear by the Council's solicitor, those who objected to the development here proposed, including a representative of the Friends, will be invited by the Council to appear as a witness in the Council's case in support of their opposition to the development proposed by the Company.
5. Those observations are supported by a plethora of authorities of this Court and the principles applicable to applications for joinder are well established and may be summarised below: 1. an application under s 39A of the LEC Act is a two stage process to determine firstly, whether s 39A is met and secondly whether the exercise of discretion justifies an order (Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44]); 2. s 8.15(2) is facultative in the sense of enabling the Court to join a person to proceedings under the EPAA of the types listed in that section who would not otherwise have a right to be a party to such proceedings (Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 at [42]); 3. caution should be exercised before an order for joinder is made (Morrison at [41] - [54]): 1. the power under s 8.15(2) of the EPAA 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; 2. community consultation and public participation under the EPAA are not intended to give the community or affected persons who object to development any entitlement to veto development; and 3. mere dissatisfaction with the merit outcome of a determination of 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; 1. a multiplicity of parties is undesirable (Bongiorno Hawkins Frassetto at [9] and The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 at [34]); 2. so too is a multiplicity of experts; 3. both the multiplicity of parties and experts undermines the efficient conduct of litigation and practice of the Court (Azzure-Blacktown Pty Limited v Blacktown City Council [2009] NSWLEC 63 at [15]); 4. the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think sufficiently important does not automatically warrant an order for joinder under s 8.15(2) of the EPAA (Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 at [36] and The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 at [14]); 5. the Court retains a discretion as to whether or not an order for joinder should be made and would take into account matters such as: 1. the delay in the application, the likely strength of the issues sought to be raised and any other issue of potential prejudice in the proceedings (Bongiorno Hawkins Frassetto at [6]); and 2. the nature of the issues which an applicant for joinder seeks to raise in the context of the overriding objective of the "just, quick and cheap" resolution of the proceedings: see s 56 of the Civil Procedure Act 2005 ("the CPA") (Azzure-Blacktown at [16] and Sabian at [14]).
6. In Avalon Beach Property the Chief Judge also opined that (at [7]-[8] and [18]-[19]): 7 As I said, this characterisation issue has not been raised by the council. The neighbour submits that it is an issue that should be considered in relation to the appeal. The neighbour submits that unless he is joined to the appeal, the issue would neither be raised by the existing parties nor considered by the Court. The applicant for development consent submits that it would not be necessary for the Court to join the neighbour in order for the Court to consider that issue. 8 The applicant submits that the neighbour's contention that the development is prohibited is contained in various submissions that the neighbour has made to the council. In the usual course, the council would prepare a bundle of documents which would be tendered at the hearing of the appeal. That bundle of documents would include all submissions, including submissions made by the neighbour. The applicant submits, therefore, that the Court would have available the neighbour's submissions that the development is prohibited. Under those circumstances, the Court could take into account the issue raised by the neighbour that the development is prohibited. It is not necessary, the applicant submits, to join the neighbour in order for the Court to be able to consider that issue. … 18 I consider that it is necessary to have the neighbour joined in order to raise these planning issues. As I said, in relation to the characterisation issue, unless the neighbour is joined, there will not be a sufficient contradictor to the contentions put by the applicant and the council. As I have noted, the council has not raised, in its amended statement of facts and contentions, any of these three non-compliances with Pittwater Local Environment Plan or Pittwater 21 Development Control Plan. 19 True, the Court could ask the planners called by the applicant for development consent and the council for their view as to whether there has been or whether there will be any non-compliances in those respects and, if so, whether those non-compliances are acceptable. However, this would require the planners on the run to determine, first, the question of fact of whether there are non-compliances and, secondly, whether those non-compliances are satisfactory or not. It also would not provide an adequate opportunity to address the question of whether there should be a written request under cl 4.6 of the Pittwater Local Environmental Plan to justify any non-compliance with the height control in Pittwater Local Environment Plan. It is preferable that these issues be raised well in advance of the hearing and the parties have an adequate opportunity to address the alleged non-compliances.

Jefferies Ought Not be Joined as a Party

1. As alluded to above, the real tension identified by Jefferies is whether the Class 4 consent orders, and their alleged breach as detailed at length by Jefferies in her affidavit, will be sufficiently considered by the Commissioner in the assessment of Mod 3.
2. On any view, the Commissioner must have regard to the consent orders pursuant to s 39(4) of the LEC Act, which states that: 39 Powers of Court on appeals … (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.
3. The Class 4 consent orders fall within the ambit of s 39(4) of the LEC Act.
4. Both when the matter came before the Court on 29 July and on 4 August 2022, it was reiterated by Garling that the Class 4 consent orders would be put before the Commissioner and a submission would be made by both him and the Council that the Commissioner had to consider them for the purpose of determining the appeal.
5. Jefferies has, in any event, brought the Class 4 consent orders and their alleged breach to the attention of the Council, both orally and in writing, on multiple occasions both before, during and after the determination by the Council of the Mod 3 application. She will, as an intervenor to the Class 1 appeal, be permitted to make submissions to the Commissioner on this issue during the conciliation conference and hearing. There is no reason to understand that these submissions and the Class 4 consent orders will not, to the extent that they are relevant, be taken into account by the Commissioner.
6. This is so notwithstanding some remarks made by the Council, at unspecified dates deposed to by Jefferies in her affidavit, to the effect that the Council did not consider the Class 4 consent orders to be relevant to the determination of the Mod 3 application or the Class 1 appeal (see, for example, paragraph 49 of the Jefferies affidavit).
7. These remarks seem to contradict the result of the Mod 3 determination. Following submissions made by Jefferies to the Council, the Council refused an increase in height to the privacy screen on the boundary wall between the two properties above the height approved by the Council pursuant to Mod 2, refused the approval of the "as built" brushwood fence and refused the approval of the "as built" landscaping plan (see paragraph 31 of the Jefferies affidavit).
8. It is these refused items that principally form the basis of the Class 1 appeal.
9. It is accepted by Jefferies in her written submissions that the Class 4 consent orders do not bind the Council in its assessment and determination of a modification application. The submission is correct. The same reasoning applies to the Commissioner in the Class 1 appeal.
10. Nevertheless, Jefferies submitted that because the Class 4 consent orders bind, as they must, the parties, the Court had to consider the effect of these orders and their breach when assessing Mod 3, and in the absence of a proper contradictor making any such submission, this would not occur.
11. At the risk of repetition, notwithstanding the absence of any reference to the Class 4 consent orders in the Council's SOFAC, the Commissioner must have regard to those orders under the LEC Act and I am satisfied that Garling and the Council will do as they say and expressly raise the Class 4 consent orders before the Court.
12. Moreover, Jefferies will have the opportunity to make submissions on the consent orders and their effect as an intervenor in the Class 1 appeal.
13. To the extent that it was suggested by Tomasetti SC that there was an issue concerning the extent to which Garling was using the modification power in the EPAA to circumvent the effect of the Class 4 consent orders and that therefore he ought to be prevented from lodging such applications, this is not a matter that can be dealt with, as a matter of jurisdiction, by a Commissioner in any Class 1 appeal.
14. That question and the issue of whether the Class 1 appeal can be used as a vehicle to amend the Class 4 consent orders to remedy any breach of those orders (arguably it cannot) are, in my view, the exclusive domain of Class 4 proceedings and not a Class 1 application.
15. In any event, Garling has given an undertaking that no such works will be carried out pursuant to Mod 3 until the Class 4 consent orders are amended.
16. By reference to the SEE, the draft Jefferies SOFAC and the other tendered documents (referred to above), Tomasetti SC further submitted that absent joinder of Jefferies there would be no contradictor on the following matters of contention, namely: 1. impacts upon view; 2. the brushwood fence; 3. impacts upon privacy; 4. the installation of CCTV security cameras; 5. the impact of the proposed landscaping; 6. the frosting of the windows; and 7. the Court's power to have regard to the Class 4 consent orders and their alleged breach.
17. However, even the most cursory survey of the Council's SOFAC revealed that this was not correct. Thus: 1. the impact on the view is raised in contention 2; 2. the brushwood fence is dealt with in contention 2; 3. the impact on privacy is referred to in contention 2; 4. the CCTV security camera installation is dealt with in contention 4 and was not, in any event, part of the Class 4 consent orders; and 5. the frosting on the windows is raised in contention 3.
18. While the Court's power to have regard to the Class 4 consent orders and their alleged breach is not dealt with in the Council's SOFAC, for the reasons explained above, this will not provide a sufficient basis for the Court to exercise its power to permit the joinder.
19. In addition, to the extent that Jefferies is concerned about Mod 3 effecting further breach of the Class 4 consent orders, she is protected by the undertaking given by Garling not to carry out such works until the consent orders have been amended.
20. Having regard to the legal principles above, including the remarks made by Preston J in Avalon Beach Property, I am of the opinion that joinder is not appropriate pursuant to s 8.15(2) of the EPAA, because the requirements of the provision are not satisfied in the circumstances of this case. The reasons for this are: 1. first, the issues sought to be raised by Jefferies can be sufficiently addressed without joinder. Submissions as to the existence and alleged breach of the Class 4 consent orders may be and have already been made by Jefferies. To the extent that other merit issues are raised, these are addressed in the Council's SOFAC; 2. second, the interests of justice do not require joinder in the circumstances of the case. Jefferies has been and will be given ample opportunity, as her affidavit makes tolerably clear, to be heard throughout the process of the determination of Mod 3 and the Class 1 appeal process; 3. third, nor does the public interest require joinder. It is not the case, as Tomasetti SC submitted, that joinder must follow in every circumstance where there is no contradictor on every issue raised by an intervenor. Contrary to the assertion by Tomasetti SC, this is not what the Chief Judge held in Avalon Beach Property. Were it otherwise this would subvert the test in s 8.15(2) of the EPAA. In any event, the issues that Jefferies seeks to agitate are clear and will be taken into account by the parties to the Class 1 appeal and by the Commissioner. Furthermore, as Garling noted, if an agreement is entered into by the parties the Commissioner is required to be satisfied that any jurisdictional precondition to the grant of consent is met; and 4. fourth, to allow joinder at this late stage would neither, in my view, facilitate the overriding purpose contained in s 56 of the CPA of the just, quick and cheap resolution of the real issue in the proceedings nor be in conformity with the purpose of s 34AA of the LEC Act.
21. Moreover, as a matter of discretion joinder ought not be permitted. This is because, and without repeating the matters above to the extent that they are relevant: 1. the issues raised by Jefferies can be sufficiently addressed absent joinder; and 2. joinder will necessarily result in an multiplicity of parties with a concomitant increase in costs and complexity in what is a relatively simple appeal. Tomasetti SC indicated that in addition to the making of submissions, Jefferies may seek to cross-examine various witnesses, including expert witnesses. There is therefore a real risk that the hearing will not conclude in the time allocated to it.

Conclusion and Orders

1. For all these reasons I am not satisfied that Jefferies has satisfactorily demonstrated a basis for joinder pursuant to s 8.15(2) of the EPAA.
2. The orders of the Court are therefore that: 1. the notice of motion filed on 22 July 2022 is dismissed; and 2. the exhibits are to be returned.

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: 09 August 2022