Kavia Holdings Pty Limited v Sydney City Council

(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. There does not appear to be a published judgment concerning this section suggesting it has been little used in the Court to date.

Before the enactment of s 39A persons seeking to be joined as parties in proceedings bought under s 97 of the EP&A Act did so under Pt 8 r 8 of the Supreme Court Rules 1970 which apply in this Court. Arguably the terms of Pt 8 r 8 of the Supreme Court Rules 1970 are narrower than s 39A of the Court Act.

One question that arises under s 39A is whether the power to join a party can be exercised conditionally. I raise this because of the wording in s 39A(a) which allows the Court to order joinder of a party if the Court is of the opinion that a 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 a person were not joined as a party. Despite the reference in s 39A(a) to being able to raise an issue, there is no provision within s 39A for joinder as a party to be made on a conditional basis which would limit a party in his or her participation once joined. It appears to me that a party that is able to satisfy the Court that a single issue would not be sufficiently addressed under s 39A(a) can be joined as a party with full participation rights. Nor is there any suggestion in s 39A(b) that the joinder of a party can be on a conditional basis.

I note that s 39A(b) refers to whether joinder should be made in the interests of justice or in the public interest. Both expressions are undefined in the legislation and are extremely broad in scope. Nor is there any guidance provided in the Minister's Second Reading speech at the time the amendment was made as there is no reference made to s 39A. It would therefore appear that the Court has a very broad and unfettered discretion in applying s 39A(b), provided always that the exercise of that discretion is undertaken judicially.

An alternative basis on which parties can participate in class 1 proceedings would be as an intervenor under a "Double Bay Marina" order to the effect that the intervenor may adduce evidence and participate in the proceedings but not be eligible to participate as a full party in the proceedings. Such orders can be made pursuant s 38(2) of the Court Act.

Despite reservations about this practice being expressed in a recent Court of Appeal decision of Lowy v The Land and Environment Court of New South Wales (2002) 123 LGERA 179 my understanding is that this practice has still been available in this Court. Does s 39A suggest that intervention on the basis of a "Double Bay Marina" order is no longer available pursuant to s 38(2)? Given that s 39A makes no reference to s 38(2) and that section is otherwise unamended, it would appear that such orders could still be made if the Court considers these are appropriate and I will return to these matters in due course.

The Society's President, Mr Woodhouse, provided evidence that the objects of the Society are to promote and enhance the conservation of heritage affecting the areas of Potts Point and Kings Cross by representing members in all jurisdictions. The Society was incorporated early this year but has existed as an unincorporated association since 1988. It currently has approximately 110 members.

The Applicant opposed joinder of the Society as a party or intervenor from the outset as unnecessary and unwarranted. The Applicant argued the Society's motion was premature in relation to stating issues would not be sufficiently covered by the Council as the Council has not yet filed its evidence. The Applicant also submitted that all of the issues the Society wishes to raise are covered by the Council's statement of issues and that the Society has not met the onus of proving any of the matters required to be met under s 39A. Furthermore, joinder of the Society would certainly lengthen the proceedings and increase costs. The Applicant's legal representative submitted that if the Court found against it on these arguments then it would be more appropriate to allow the Society some right of appearance limited to heritage issues if the Court is of the opinion the Council cannot adequately deal with it.

The Council also ultimately opposed the joinder of the Society as an intervenor or party on the basis that it, the Council, was able to adequately deal with all the pertinent issues and would be able to call members of the Society as witnesses.

I note the Council has filed a statement of issues in the proceedings as follows. 1. Whether the proposed development satisfies the aims and objectives of the South Sydney Local Environmental Plan 1998. 2. Whether the proposed development satisfies the objectives, performance criteria and controls of the South Sydney Development Control Plan 1997. 3. Whether the proposed development satisfies the objectives and requirements of the Strategy for a Sustainable City of South Sydney. 4. Whether the height, bulk, scale, mass of siting and design of the proposal is appropriate for the site and its surrounding context. 5. Whether the proposal is in keeping with the character, appearance and amenity of the surrounding conservation area. 6. Whether the proposal will detract from the landscape quality of the site. 7. Whether the proposal will result in an unreasonable degree of view loss thereby detrimentally impacting on the amenity of surrounding properties. 8. Whether the proposal will unreasonably reduce solar access and privacy to surrounding properties. 9. Whether the proposal will generate an unreasonable degree of traffic and on street car parking. 10. Whether any matters raised by objectors warrant the refusal of the application. 11. Whether the proposal is in the public interest. 13. The issues raised in the statement of issues filed by the Council are certainly broad and include heritage matters.

14. The matter was adjourned after an initial hearing on 27 June 2003 as I required a meeting of the Society and the Council's representatives to be held to see if the issues the Society did wish to raise would be covered by the Council's evidence and approach to this appeal. That meeting was held on 10 July 2003. The Society's representative informed the Court on 23 July 2003, when the matter came before me again, that it wished to maintain its application for joinder.

15. The Society's representative maintains that it is necessary for the Society to be joined as a party because some issues which are relevant to the matter will not be addressed at all by the Council. Further, where issues will be addressed by the Council which the Society considers relevant, these will not be addressed sufficiently in the Society's opinion. Therefore an order under s 39A(a) of the Court Act is justified. It was further submitted that it was in the public interest that these matters be addressed, referring presumably to s 39A(b).

Matters the Society wishes to raise not addressed by Council 16. I will now deal with the matters the Society wishes to raise which are not at this stage likely to be addressed by the Council. The Council's view after the meeting with the Society's representative on 10 June 2003 was that all but two of the issues raised by the Society were already addressed by the Council's statement of issues filed in the matter and would be addressed adequately by the Council's evidence when this was finally prepared.

17. The two issues not raised by the Council's statement of issues are firstly, demolition of the current building on the site (Issue 1). The Council considers demolition is acceptable whereas the Society considers the building should be retained for its heritage value. The Society wishes to call the evidence of a heritage consultant, which would include a heritage impact statement, which will emphasise the heritage significance of the existing buildings which are to be demolished if the proposed development goes ahead. The buildings are apparently listed on the Society's own list of buildings of heritage importance in the area. The building is part of the heritage conservation area in the vicinity recognised under the relevant local environmental plan but is not itself specifically listed as a heritage item in the Council's planning instruments.

18. The second issue which the Society wishes to raise are health impacts from the proposed development. It wishes to do this in a way which the Council is not intending to raise. The Society wishes to bring forward the evidence of Professor Robinson from the University of Sydney considering the negative health impact which can result from the loss of sunlight because of lowered serotonin levels which it is said may result if the proposed development goes ahead (Issue 2). The Council's legal representative stated Council was not intending to call evidence of this nature. The Council is however intending to call town planning evidence concerning overshadowing and loss of sunlight.

19. I should note that there is also a third issue that falls in this category. The Society also wishes to call one of its members who operates a business in the building adjoining the site stating the negative economic impact likely to occur to her business due to the loss of amenity caused by the proposed high level development (Issue 3). Matters the Society wishes to raise that are likely to be addressed by Council 20. There are also matters which the Society wishes to address which are also likely to be addressed by the Council. The Society maintains that its intervention is still necessary to ensure that heritage matters which the Council is going to address are sufficiently addressed.

The Society wishes to bring forward evidence of a streetscape study to demonstrate the impact of the proposed development in the area (Issue 4). It was said that the Council was not intending to bring forward such evidence, although the Council's legal representative contradicted this from the bar table.

A further matter the Society wishes to raise is the overshadowing of Elizabeth Bay House and the adjoining McElhone Reserve by the proposed development. These are said to be issues of major concern to the Society. The Society considers the Applicant's shadow diagrams are inadequate and the Society proposes, if allowed, to put forward its own shadow diagrams to the Court (Issue 5). I note that Council is apparently satisfied the Applicant's shadow diagrams are sufficiently accurate and is not therefore intending to prepare its own shadow diagrams.

Another issue which the Society wishes to bring forward is evidence of a heritage study about the McElhone Reserve by Mr Warwick Mayne-Wilson (Issue 6). The Society also intends to call the Curator of Elizabeth Bay House to reflect on the adverse heritage impacts on the house if the development were to proceed (Issue 7).

The Society also wishes to bring forward evidence from one or two members of the Society concerning loss of privacy and amenity (Issue 8). I questioned Mr Woodhouse why this evidence and also evidence relating to health and economic issues for individual members was relevant to the Society's objectives of heritage conservation. It was put to the Court that to the extent there was a loss of enjoyment by members of the Society within the heritage conservation area, whether it be economic loss or another kind of loss, then it was the duty of the Society to represent its members in relation to those impacts.

One of the difficulties of assessing the Society's application is that to date the Council's evidence is not finalised simply because it has not been necessary given the stage of the proceedings. I am certainly not criticising Council in any way by that statement.

Accordingly, the matters which the Society argues will be insufficiently addressed by the Council, as opposed to those the Council and Society say will not be addressed at all by the Council, are not fully before this Court to enable such an assessment. When questioned by me as to whether the heritage matters particularly raised by the Society concerning the streetscape study, the overshadowing of Elizabeth Bay House and the calling of the Curator of Elizabeth Bay House would be addressed by the Council, its legal representative's response was that these matters would be, although not necessarily in the way the Society wishes. The Council has its own heritage consultants who will give evidence. The Council is not intending to call the Elizabeth Bay House Curator, simply because it is considered unnecessary to do so.

As already noted, the Council is not as concerned with the demolition of the existing building on the site as the Society. The Council's legal representative also advised that all objectors to the development would be written to and advised of the Court case and asked if they wished to give evidence so that members of the Society could participate in that way.

Finding Heritage matters - Issues 1, 4, 5, 6 and 7 28. The matters concerning heritage conservation of the existing building and the impact of the proposed development on the physical environment of the surrounding heritage conservation area which the Society wishes to raise appear to be matters about which the Court should clearly be informed in these proceedings ( Issues 1, 4, 5, 6 and 7). The Court accepts the submissions of the Council's representative that is certainly the Council's intention to fully address the issues identified in its statement of issues. It seems to me, however, that the approach of the Society to some of the matters it wishes to bring forward and about which the Council will also bring evidence is likely to differ in some respects. The heritage concerns to the Society are clearly important issues in the context of this appeal. It is also clearly within the objectives of the Society to bring forward such material and I consider this should be done. The question however is whether it should be able to participate as a party or as an intervenor. I will return to this question, but firstly I will deal with other matters raised by the Society.

Issues 2, 3 and 8 29. I am concerned about some of the evidence the Society wishes to bring forward. This relates to the health impacts and evidence of the health impact due to loss of sunlight through the evidence of Professor Robinson (Issue 2), economic impacts on individual businesses (Issue 3) and evidence of one or two individual Society members concerning privacy and amenity impacts (Issue 8).

30. I am concerned that where people happen to be members of this Society and also have individual concerns about the proposed development, not related to heritage, those views are to be put forward to the Court through the Society. I do not accept the argument put by Mr Woodhouse that because, for example, there is economic impact on a Society member's business or that person's privacy amenity within the heritage conservation area that there is an impact on the heritage conservation area generally. This was the basis for arguing that such concerns were also part of the Society's objectives for protection of the heritage area. I stress I am not seeking to negate such individual concerns of residents about this proposed development. My concern is that the Society, with its limited objectives as an incorporated association, is not the appropriate vehicle to pursue individual member's concerns in the way it appears that it wants to.

31. In the first instance those individuals should be contacting the Council to discuss their own concerns and whether these can be incorporated in evidence brought by the Council. Ultimately evidence of this nature, particularly the economic impact on individual businesses surrounding the site, will be a question of weight for the Commissioner hearing this matter. I suggest to the Society and the individual members wishing to give evidence of economic impact, in particular, that such evidence is generally considered of marginal significance in merit issues such as this matter before the Court. I will return briefly to these issues at the end of the judgment.

Amended Plans 32. Another reason given to justify the joinder of the Society as a party was so that the Society could be appraised of any amended plans. None are currently proposed to be brought forward by the Applicant in the matter. The Society nevertheless argued that it should be joined as a party because in the event there were amended plans put forward by the Applicant it should have the opportunity of commenting.

33. I do not consider that is an acceptable basis for joinder as a party in proceedings of this nature. The essential reasoning behind these submissions appears to be that the Society does not wish to trust the Council to adequately represent its interests. The fact the Society has that view of the Council is irrelevant in my view to the Court's consideration of whether the Society ought be joined as a party under s 39A.

Application of s 39A 34. I now need to return to the question of whether the Society should be joined as an intervenor or a party and I therefore need to consider if s 39A of the Court Act should be applied in the Society's favour.

Looking firstly at s 39A(a), that requires the Court to form an opinion as to whether the Society 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 Society were not joined as a party.

I consider that given the broad nature of the issues raised by the Council's statement of issues and that the Court is entitled to expect the Council will do its job adequately, there is not an issue which falls in this category. The fact there are issues the Society wishes to raise which the Council does not wish to is not sufficient to warrant the automatic application of s 39A(a) in my view, given the nature of the issues the Society wishes to raise which fall in this category. One issue is the demolition of the existing buildings on the site (Issue 1). The nature of the material which the Society wishes to put to the Court is different from that which the Council will put given the Council's view that demolition is acceptable subject to conditions. The Council will nevertheless be putting forward expert evidence on heritage in relation to the site. I do not consider the issue will be insufficiently addressed.

The other issue is that of health impacts due to loss of sunlight, particularly the evidence of Professor Robinson (Issue 2), which the Council will not otherwise call. Evidence of this nature is rarely, if ever, called in class 1 proceedings. The Council has indicated it will be calling evidence of a town planning nature concerning loss of sunlight. Once again, I do not consider this issue will be insufficiently addressed for the purpose of applying s 39A(a).

A person may be joined in the alternative to s 39A(a) under s 39A(b). Section 39A(b) allows the Court to join a party if it is in the interests of justice or it is in the public interest to do so. I note that s 39A(b)(i) and (b)(ii) are alternatives meaning I could let the Society join as a party under either subsection.

I have already observed that the Society clearly has the objective of the protection of the conservation area of Kings Cross and Potts Point and is prepared to bring forward expert evidence supporting the issues of concern to it. It may be that the Society wishes to present evidence of a different nature and slant to that presented by the Council and it appears likely that that is the case.

The development in question is significant in the locality it is proposed to be located in and potentially overshadows an important heritage conservation area which includes Elizabeth Bay House and the McElhone Reserve. It seems to me that the Society's input into the appeal on heritage matters in particular should be brought forward in the public interest and in the interests of justice in this matter. While the Council may, and no doubt will, do an entirely adequate job in addressing its Statement of Issues, the Society, given its particular focus, should be able to present its expert evidence to the Court in this appeal.

I also note the material relating to demolition of existing buildings (Issue 1), is also material which arguably should be before the Court from a public interest perspective as it is clearly relevant to a merit appeal of this kind.

I note however that I have expressed reservations about whether the Society is the appropriate body to be bringing forward the evidence of Professor Robinson (Issue 2), economic impacts (Issue 3) and privacy and amenity impacts (Issue 8).

I make this decision mindful that in the interests of justice, which is referred to in s 39A(b)(i), I need to balance the need for efficiency in the management of matters before this Court with the need to have all relevant matters put before the Court. The joinder of a new party does lead to greater work for the existing parties and the likely elongation of any hearing in the matter. In all the circumstances I consider however that the Society should be joined as a party rather than as an intervenor under a "Double Bay Marina" order.

I do make this finding with some trepidation that it is possible there will be some duplication between the evidence of the Society and the Council once the Council's evidence is finally prepared. I expect the Council and Society to work cooperatively to avoid that outcome. There is certainly no benefit to the Court in receiving the same evidence twice and the parties should bear this closely in mind.

As I have noted earlier, some of the evidence which the Society wishes to bring forward does not appear to be relevant to its objectives as I understand them, in relation to Issues 2, 3 and 8 which I have outlined previously. As evidence of this nature is not completely irrelevant to the merit hearing I will not make any orders at this stage directing that it should not be brought forward by the Society. I suggest at this stage to the Society that it exercises caution in bringing forward evidence in relation to Issues 2, 3 and 8. I have already indicated that the Council would appear to me to be the more appropriate body to present such evidence. It seems to me that further discussion must be held between those individual members of the Society and the Council concerning issues 2, 3 and 8 to establish what evidence, if any, will be called in relation to these matters by the Council. It may be that the Council would choose to put some or all of these matters to the Court ultimately. If such evidence is to be brought forward I stress again it seems to me that the Council is the more appropriate body to do so and it could do so given the scope of the Statement of Issues filed in the proceedings. I note that ultimately it is a matter for the Commissioner who will be hearing this matter what evidence is allowed in and what weight is given to that evidence.

Accordingly, I consider that pursuant to s 39A of the Court Act the Society may be joined as a party in the proceedings. It will of course be subject to all the rules which apply to parties in class 1 proceedings. I expect the Society and the Council to communicate closely and cooperatively with a view to ensuring there is no duplication of evidence.

Orders 47. The Court orders that: 1. The Potts Point and Kings Cross Heritage Conservation Society Inc ("the Society") is joined as a party to these proceedings pursuant to s 39A of the Land and Environment Court Act 1979. 2. The matter is set for mention before Pain J at 9.30 am on 6 August 2003. 3. The Council and the Society are to file and serve a joint Amended Statement of Issues by 5 August 2003. 4. Costs are reserved. 5. Return of subpoena for production issued by the Applicant to South Sydney Council and dated 1 July 2003 is stood over to 6 August 2003 at 9.30 am before Pain J.

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