Kamenev v Woollahra Municipal Council

Background

1. Section 8.15(2) the Environmental Planning and Assessment Act 1979 ('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.
2. This section gives the Court power to join a person to proceedings in certain circumstances. The first is if the person is able to raise an issue that should be considered in relation to the appeal which would not likely be sufficiently addressed if the person were not joined as a party (s 8.15(2)(a)).The second is if 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 (s 8.15(2)(b)).
3. In the Amended Notice of Motion the Interveners also rely on r6.27 of the Uniform Civil Procedure Rules 2005 ('UCPR') for joinder. Whilst it is open for the Interveners to seek leave under that rule, it is preferable to make an order for joinder under the EPA Act in circumstances where the EPA Act provides me with the discretion to do so.
4. The Interveners propose to raise to following contention as set out in the Schedule to the Amended Notice of Motion: 'The proposed development will have adverse impacts upon the views of Sydney Harbour enjoyed by the residents of numbers 28 and 30-32 Coolong Road, Vaucluse, such adverse impacts ranging from moderate to severe. Consistent with the planning principle in Tenacity Consulting Pty Ltd v Warringah Council, the Applicant should be required to undertake a more skilful design that would provide the Applicant with the same development potential and amenity but also reduce the adverse impacts that will be suffered by the owners and occupiers of those properties to the views and Sydney Harbour currently enjoyed by them.'
5. This contention is supported by the expert report of Ms Karla Castellanos, Director of Urban Project dated 30 April 2018 dated 30 April 2018 (Exhibit 1).
6. Ms Castellanos report separates her comments and observations of the Proposed Development into two categories being 'Technical Points Requiring Classification' and 'View Impact Issues More Skilful Design Test'. These comments and observations are further particularised by Ms Castellanos with respect to the assessment of private views from the Interveners properties, including the location of height poles, the impact of proposed solar panels and the lift overrun. Ms Castellanos also provides an opinion on the impact of the Proposed Development on the private views enjoyed by the Interveners and the ability for that impact to be mitigated with a more skilful design as articulated in Tenacity Consulting v Warringah [2004] NSWLEC 140.

Council's Contentions

1. Council has adopted a neutral position in respect of the Amended Notice of Motion, however the difference between the Council's contentions and the evidence proposed to be led by the Interveners needs to be considered under s8.15(2)(a) of the EPA Act.
2. In its Statement of Facts and Contentions filed on 18 January 2018, Council firstly raises view loss from both the private and public domain and secondly that the Proposed Development is not in the public interest and will establish an undesirable precedent in the locality in terms of loss of significant private views.

Section 8.15(2)(a)

1. In the affidavit of Mr Kingston which was read without objection, he attests that: 'I am concerned that if the Application under DA 487/2017 is approved by the Court, a range of views that I and my family and Mr and Dr de Soysa currently enjoy to Sydney Harbour, will be moderately to severely impacted as a result of the proposed height and width of the building proposed under that application. On 18 January [2018] the Respondent filed a Statement of Facts and Contentions. The Council asserts at Contention 1 that the proposal will have an unacceptable impact on views from neighbouring properties. However, neither my property nor the property of Mr and Dr de Soysa, is referred to in that Contention as properties that would be severely impacted in the applicant under DA 487/2017 was approved. Nor does the Respondent's Statement of Facts and Contentions identify the location of impacted views or the extent of adverse affectation.'
2. The Applicant relied on the evidence of Ms Kalinda Doyle whose affidavit was affirmed on 30 April 2018 and read without objection on 1 May 2018. Ms Doyle attests that her affidavit was prepared having had the benefit of reading the affidavit of Mr Kingston and as such, is able to respond to that evidence which sets out the basis by which Mr Kingston and the other Interveners say they should be joined.
3. With respect to the Interveners' properties not being specifically referred to in the Statement of Facts and Contentions, the Applicant sought further and better particulars from the Respondent by way of a letter dated 15 February 2018. The response to particulars was provided by the Respondent to the Applicant by letter dated 5 March 2018. Both of these letters were annexed to the affidavit of Ms Doyle. The letter responding to the request for particulars confirms that the reference to private view loss in the Respondent's Statement of Facts and Contentions was in reference to the Interveners' properties and also identified the location of the impacted views and the extent of that view loss.
4. The solicitor for the Applicant also submits that the contention proposed to be raised by the Interveners has already been raised by the Respondent in its Statement of Facts and Contentions, the Applicant's Statement of Facts and Contentions in Reply and in the joint report prepared by the parties' town planning, urban design and arboricultural experts. The solicitor for the Applicant also contends that the specific issues proposed to be raised by the Interveners have already been raised by them repeatedly throughout the DA process and that the Interveners will have an opportunity to make further submissions during the relevant part of the s 34AA conciliation and hearing.
5. At this point it is important for me to address the evidence of Mr Kingston, which was admitted without objection at the hearing of this Motion. Mr Kingston has attested that Mr Booth, a town planner employed by the Respondent and appearing as an expert in these proceedings, said to him words to the following effect during the course of the experts' site inspection of the Interveners' properties: "Private view loss is not relevant as the proposal is compliant with the maximum height limits of the Code"
6. Mr Kingston goes on to attest that "It is my contentions that the amenity of properties 28 and 30-32 Coolong Road, Vaucluse could be better protected by a more skillful design that sought to give the Applicant the same amenity as proposed by the current application but which also sought to reduce the likely loss of views that would result from approval of the proposed development."
7. Various submissions were put to the Court by both the Applicant and the Interveners' solicitors about this statement and regardless of what was said to Mr Kingston by Mr Booth, private view loss remains a contention in these proceedings and remains squarely before the Court.
8. This is evidenced by the joint report prepared by the parties' experts in which Mr Booth expresses the opinion "that by lowering the building there is a clear opportunity to mitigate the impacts the amalgamation of lots has on a view from the public domain identified in the DCP and the private view loss from 28 and 30-32 Coolong Road. It is considered that the recommended lowering of the building by 1390mm would constitute a more skilful design as per the planning principle Tenacity v Warringah Council."
9. Having reviewed the experts' joint report and the Respondent's and Applicant's Statement of Facts and Contentions and the Applicant's Statement of Facts and Contentions in Reply, I am satisfied that the contention proposed to be raised by the Interveners is already before the Court.
10. As such I do not find the first test satisfied.

Section 8.15(2)(b)

1. The Interveners also rely on the second test for joinder, being the interests of justice and public interest, to support their joinder application.
2. I find in relation to s 8.15(2)(b) that it is not necessary to join the Interveners having regard to the interests of justice or the public interest.
3. As set out earlier in this decision, the issue that the Interveners wish to raise has been adequately canvassed throughout the course of Council's consideration of the DA, by the Statements of Facts and Contentions filed by both parties, by the experts in joint conferencing and will continue to be addressed in the conciliation conference and at any hearing.
4. There is no suggestion that the Interveners have not had adequate opportunity to articulate their concerns or that the Court would be deprived of meaningful assistance if they are not joined as a party.
5. In coming to this decision I am guided by the judgment of Preston CJ in Morrison Design v North Sydney (2007) 159 LGERA 361; [2007] NSWLEC 802 ('Morrison') at [50] to [54] where he states: "To some extent, the application … 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. 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. 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. 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. 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."

Double May Marina Order

1. As I have determined that it is not appropriate for an order for joinder to be made, I am required to consider whether it is appropriate for an order to be made pursuant to s 38(2) of the Land and Environment Court Act 1979 (the 'Court Act') entitling the Interveners to participate in the conciliation and hearing under s34AA of the Court Act.
2. The effect of such an order would be as described by Pain J in Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195 (at [7]), that the Interveners would be permitted "to adduce evidence and participate in the proceedings but not be eligible to participate as a full party to the proceedings".
3. Turning first to the whether I have the power to make an order under s 38(2) entitling non-parties to participate in a s 34AA conciliation and hearing. Section 38(2) states "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", and s 34AA(2) states "the Court must arrange a conciliation conference between the parties and their representatives".
4. Relevantly, clause 12 of the Court's Conciliation Conference Policy states that "The council is to ensure that: • People who made submissions to the council are advised of the time of the site inspection so they have the opportunity to ask the council if they can make a submission on-site for consideration by the parties during the conciliation phase. • People who made submissions to the council are also advised that, at the conclusion of any submissions made on site, the parties will be undertaking confidential conciliation discussions facilitated by the Commissioner and that participation in those discussions is limited to the parties (including their legal representatives and experts)."
5. As such, it does not appear to me that there is power under s 38(2) to allow the Interveners to participate in the confidential conciliation component of the s34AA conciliation and hearing.
6. I turn now to the balance of Order 3 set out in the Amended Notice of Motion, and whether it is appropriate to make such an order under s 38(2) of the Court Act to allow the Interveners to participate in any hearing component of s34AA. In coming to my decision I am guided by Jagot J in her decision Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 in relation to s 38(2) where she says at [5]: "While s 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."
7. I am not satisfied that there are any issues in these proceedings that are not likely to be sufficiently addressed, or that the Court will not appropriately informed about if an order is not made under s 38 (2).
8. For the above reasons, this is a not a proper case to order the joinder of the Interveners as a parties to the proceedings or to make an order under s 38(2) of the Court Act.

Orders

1. The Court orders: 1. Leave is granted to amend the Notice of Motion filed on 23 April 2018 as set out in the Amended Notice of Motion filed on 1 May 2018. 2. The Amended Notice of Motion is dismissed.

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Sarah Froh Registrar of the Land & Environment Court

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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: 03 May 2018