Lewin Capital First Pty Ltd ATF Lewin Capital First Unit Trust v Woollahra Municipal Council

Category: Procedural rulings

Parties: Lewin Capital First Pty Ltd ATF Lewin Capital First Unit Trust (First Respondent on the Motion)
Woollahra Municipal Council (Second Respondent on the Motion)
Carmen McLoughlin (Applicant on the Motion)

Representation: Counsel:
S Berveling (Applicant on the Motion)
M Seymour SC (First Respondent on the Motion)
Solicitors:
Webb Henderson (Applicant on the Motion)
Boskovitz Lawyers (First Respondent on the Motion)
Marsdens (Second Respondent on the Motion)

File Number(s): 2026/00097309

Publication restriction: Nil

JUDGMENT

Introduction

1. By notice of motion filed on 9 June 2026, Carmen McLoughlin, the applicant on the motion, seeks joinder pursuant to s 8.15(2)(a) and (b) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) as the second respondent to a Class 1 appeal brought by Lewin Capital First Pty Ltd ATF Lewin Capital First Unit Trust (Lewin Capital).

2. The Class 1 appeal is brought pursuant to ss 8.7 and 8.11 of the EPA Act from the refusal by the Woollahra Local Planning Panel (W****oollahra LPP) on 16 April 2026 of development application DA449/2025/1 dated 18 November 2025 (the DA) for the demolition of the existing dwelling houses, lot amalgamation and the construction of an eight-storey residential flat containing 32 apartments above two levels of basement parking, landscaping, swimming pools and associated site works at 12-18 Wilberforce Avenue, Rose Bay (the property). The proceedings were commenced on 9 March 2026 against the then deemed refusal of the DA.

3. The proceedings are listed for a s 34 conciliation conference on 22 July 2026.

4. Lewin Capital opposes the joinder of Ms McLoughlin. Woollahra Municipal Council (Council) neither consents to nor opposes the application for joinder.

5. Ms McLoughlin seeks the following orders:

6. Carmen McLoughlin is joined as second respondent to the proceedings pursuant to s 8.15(2)(a) and (b) of the Environmental Planning and Assessment Act 1979.

7. Carmen McLoughlin is joined as second respondent to the proceedings pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005.

8. Carmen McLoughlin is directed to serve her Statement of Facts and Contentions within 2 days of the making of these orders.

9. That the costs of this application be costs in the proceedings.

10. Any such or other order as the Court sees fit.

11. Section 8.15(2) of the EPA Act provides:

8.15 Miscellaneous provisions relating to appeals under this Division

…

(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.

7. In her application for joinder, Ms McLoughlin relies primarily on paragraph (a) of s 8.15(2), contending that she is able to raise an issue that should be considered in the appeal, but which would not be likely to be sufficiently addressed if she were not joined as a party.

8. The issue she seeks to raise relates to the geotechnical and hydrogeological impact of the proposed development in the Rose Bay locality. That impact is the subject of section E2.2.10 Groundwater (hydrogeology and geotechnical impacts of the Woollahra Development Control Plan 2015 (the DCP). Chapter E2 of the DCP Stormwater, Flood and Geotechnical Risk Management commenced on 23 May 2015.

9. Rule 6.24(1) of the UCPR provides:

6.24 Court may join party if joinder proper or necessary

(1) If the Court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the Court may order that the person be joined as a party.

10. In support of the motion for joinder, Ms McLoughlin read the affidavit of her solicitor, Andrew John Christopher, sworn 9 June 2026 (the AJC a****ffidavit) and tendered Exhibit ACJ-1 (Ex AJC-1) to that affidavit. Mr Christopher, partner at the firm Webb Henderson and solicitor on the record for the applicant on the motion, Ms McLoughlin, deposes that Ms McLoughlin represents the following property owners who, together with Ms Mcloughlin, reside in close proximity to 12-18 Wilberforce Avenue:

11. Andrew Carr and Anne Lynch of 2/23 Wilberforce Avenue;

12. Julian Gold and Linda Gold of 24/26 and 28 Newcastle Street;

13. Lee Hawksley of 11 Wilberforce Avenue;

14. Pedar Kastengren and Diana Kastengren of 3/9 Wilberforce Avenue; and

15. David Fisher of 2/9 Wilberforce Avenue (together, the r****esidents).

16. In opposition to the motion for joinder, Lewin Capital read the affidavit of Anthony Boskovitz, solicitor, sworn 16 June 2026 (the AB a****ffidavit) and tendered Exhibit AB-1 (Ex AB-1) to that affidavit.

Factual background

12. Section E2.2.10 of the DCP was amended on 6 December 2021 and 2 December 2024. Prior to those amendments, in 2019 Council had engaged GHD Pty Ltd, consulting engineers (GHD) to undertake an assessment of geotechnical and hydrogeological impacts associated with development in the Double Bay settlement zones. GHD subsequently provided Council with two reports: (i) the Double Bay Hydrogeological Geotechnical Impacts - Groundwater and Geotechnica**l Assessment Report; and (ii) the Double Bay Hydrogeological Geotechnical Impacts Proposed Changes to the planning provisions. Amongst other things, GHD recommended amendments to the Woollahra Local Environmental Plan 2014 (the LEP) and the DCP.

13. On 12 April 2021, the GHD reports were considered at a meeting of Council's Environmental Planning Committee. On 26 April 2021, Council resolved relevantly that:

14. a planning proposal be prepared to amend the LEP;

15. a draft DCP be prepared and publicly exhibited to amend the DCP; and

16. staff review the proposed controls in the draft DCP to identify if these can be applied to Rose Bay and Bellevue Hill.

17. On 11 October 2021, Council's Environmental Planning Committee considered a further report, and on 26 October 2021, Council resolved to approve the Draft Woollahra Development Control Plan 2015 (Amendment No 18).

18. On 14 June 2022, Council resolved to undertake a hydrogeological and geotechnical study for the Rose Bay basin area. GHD was again engaged to assess hydrogeological and geotechnical conditions in the area. A report titled "Rose Bay- Hydrogeological and Geotechnica**l Impacts" was prepared in May 2024 (the May 2024 GHD report). The May 2024 GHD report advised that the DCP would be strengthened by including provisions to address the impact of groundwater drawdown and land stability within parts of the Rose Bay area.

19. On 3 June 2024, the May 2024 GHD report and proposed amendments to the DCP were reported to Council's Environmental Planning Committee.

20. On 11 June 2024, Council deferred making a decision to amend the DCP and requested that further consideration be given to the draft controls for managing vibration impacts. Updated amendments to the DCP and a revised GHD report, Rose Bay Hydrogeological and Geotechnica**l Impacts (July 2024) (the July 2024 GHD report) were reported to the Environmental Planning Committee at its meeting on 5 August 2024.

21. At its meeting on 12 August 2024, Council resolved to exhibit the proposed amendments to the DCP.

22. At Council's meeting on 25 November 2024, it was resolved:

THAT Council:

A. Notes the post exhibition report on Draft Woollahra Development Control Plan 2015 (Amendment No. 30) which seeks to address groundwater drawdown, land stability and vibration impacts relating to development.

B. Approves Draft Woollahra Development Control Plan (Amendment No. 30), as exhibited at Attachment 1 of the report to the Environmental Planning Committee meeting of 4 November 2024, subject to the following changes:

i. Amend control C8 to include the words: "Including but not limited to demolition, excavation, sifting, piling and construction".

ii. Amend control C9 to include the word “and duration” after frequency, and at the end of the second paragraph at the sentence “such monitoring should be in place for the duration of all activities outlined in C8.”

iii. Amend the Notes after control C9 such that after anytime the following words are inserted "as all activities as defined in C8".

20. As at 2 December 2024, section E2.2.10 of the DCP provided:

E2.2.10 Groundwater (hydrogeology) and geotechnical impacts

Introduction

Council will require geotechnical, hydrogeological and vibration assessment reports for development applications which include below ground structures.

Any proposed development with below ground structures must consider the sub-surface conditions and the effects of construction on surrounding properties. In addition, those which are likely to extend below the level of seasonal fluctuations in the groundwater table, must also consider the effect of any changes induced in the sub-surface water levels and the groundwater flow patterns on surrounding properties. Unless site specific information exists to the contrary, excavations deeper than 1m must be assumed to have this potential to intersect the groundwater level and shall be considered as below ground structures.

Council's principal objective is to ensure that earthworks and associated groundwater dewatering, during and after construction, will not have any adverse impacts on:

(a) Environmental functions and processes

(b) Neighbouring uses

(c) Cultural and heritage items

(d) Any features of the surrounding land and infrastructure that could be impacted by geotechnical and hydrogeological changes.

Typically, adverse geotechnical impacts may include vibration induced damage and/or settlement from construction methods and equipment; instability of slopes, rock cliffs/faces influenced by excavation, filling or other loading such as footings of structures or construction plants; and inadequate support of adjacent land during and after construction. The vibration during construction can also cause discomfort to people occupying adjoining or nearby buildings.

Typically, adverse hydrogeological impacts may include settlement induced by changes in the groundwater level and seepage problems.

21. On 28 November 2025, the DA was lodged with Council together with owner’s consent. Lewin Capital is not the owner of the property. Also lodged with the DA was a report of Douglas Partners Pty Ltd dated 15 August 2025 prepared for Lewin Capital (the Douglas geotechnical report).

22. The Douglas geotechnical report stated that it was prepared in accordance with Council’s Guidelines for Geotechnical and Hydrogeological Reports. It also considered Chapter E2 Stormwater and Flood Risk Management in the DCP, and specifically section E2.2.10 in relation to groundwater (hydrogeology) and geotechnical impacts. The report considered the geology of the property through borehole testing in three locations, and the extent of groundwater through the installation of groundwater wells as well as the installation of groundwater monitoring sites for the ongoing measurement of groundwater.

23. On 7 January 2026, WaterNSW granted concurrence for the DA subject to the imposition of General Terms of Agreement.

24. Mr Christopher deposes that on 13 February 2026, the residents lodged an objection to the DA prepared by Sparke Helmore Lawyers. The covering letter from Sparke Helmore to the General Manager states:

We act for the following property owners in the Rose Bay settlement area:

(a) CJ McLoughlin of 3 Wilberforce Avenue,

(b) Catherine De Giorgio of 1 Wilberforce Avenue,

(c) Andrew Clark and Anne Lynch of 2/23 Wilberforce Avenue,

(d) Georgina Clark of 17 Wilberforce Avenue,

(e) Susan Parke of 4/40-42 Wilberforce Avenue,

(f) Julian & Linda Gold of 24/26 and 28 Newcastle Street.

25. Sparke Helmore advised that in support of the objection, their clients had engaged consultants, including Fortify Geotech, geotechnical engineers, and enclosed a geotechnical assessment report prepared by Fortify Geotech dated February 2026 (the Fortify report), a desk top study which provided a preliminary assessment of potential geotechnical impacts on neighbouring properties should the proposed development proceed.

26. In relation to the Fortify report, the letter of objection provided inter alia as follows:

27. Fortify Geotech expects that the proposed development will “drawdown groundwater levels by between 0.3m and 2m depth on between 25 and 60 adjacent properties”. Fortify Geotech considers that this modelling “must be provided by the proponent for detailed analysis to be carried out”. Dewatering levels at the site boundary is estimated to be approximately 7 times the limit permitted by Council's DCP controls, which were adopted to mitigate excavation risk.

28. The potential geotechnical impacts of the proposed development and its significant groundwater drawdown include:

(a) low bearing capacity of soil for supporting large structures; (b) potential to destabilise adjacent structures, potentially causing subsidence and damage; (c) non-cohesive sand conditions causing slippage or settlement; (d) potential to undermine or destabilise adjacent infrastructure such as road and sewer works; (e) vibration impacts, in particular caused by proposed sheet piling, causing damage to adjacent properties; (f) high pump-out rates exceeding the capacity of the stormwater network causing local flooding and damage to nearby structures and infrastructure; (g) installation of a sheet pile cut-off wall causing further impacts such as damming groundwater flows.

3. Fortify Geotech expects that the volume of water from the proposed groundwater drawdown will exceed the WaterNSW threshold of 3ML/year, and accordingly a Water Access Licence would be required to authorise the proposed development.

4. Fortify Geotech also considers that the applicant will be required to comply with the terms of the Water Sharing Plan for the Greater Metropolitan Region Groundwater Sources 2023.

5. Fortify Geotech is of the opinion that the groundwater drawdown of the proposed development will exceed the DCP threshold of 0.3m drawdown on adjacent properties by 7 times.

6. Their report provides an opinion whereby there are no practical methodologies or mitigation measures that will help achieve that threshold required under the DCP controls designed to safeguard homes against structural damage.

7. Sparke Helmore advised that “[o]ur clients consider that, in light of the comprehensive geotechnical assessment by Fortify Geotech which details the severe geotechnical and groundwater impacts associated with this proposed development, the DA must be refused.”

8. On 25 March 2026, Council’s development engineer to whom the DA had been referred provided a report (the technical referral report). Under the heading “f. Geotechnical, Hydrogeological and/or Structural comments”, that report provided that the Douglas geotechnical report had “not been prepared in accordance with Council’s DCP Chapter E2 – Stormwater, Flood and Geotechnical Risk Management Section E2.2.10 and Attachment 6 – Guidelines for Geotechnical and Hydrogeological Reports , and as such must be revised to address the following requirements …”. Thereafter followed six bullet points identifying requirements for the revision of the Douglas geotechnical report. Under the heading “4. Recommendation”, the technical referral report provided inter alia:

• Provision additional information and a revised Geotechnical and Hydrogeological Investigation, as detailed in Section f..“Geotechnical*,* Hydrogeological and/or Structural comments” of this document.

29. The technical referral report also made the following comments on site drainage:

The Stormwater Management Plan, Project Number 250291, Revision A, prepared by Smart Structures Australia, dated 12/11/2025 must be amended to address the following requirements in accordance with Woollahra DCP Chapter E2 - Stormwater, Flood and Geotechnical Risk Management:

• The site is not within an OSD exempt area and an Onsite Stormwater Detention (OSD) System must be provided for the entire site area. The OSD System must have a minimum volume of 49. 7m3 without the provision of a Rain Garden OR 39. 76m3 with the provision of a Rain Garden with a minimum area of 19.88m2. Section details with all levels must also be provided on plans. Note: this requirement is separate from the provision of Stormwater Treatment Systems, however provision of a Rain Garden can be counted as one of the water treatment systems.

• With the provision of the above required amendments, the MUSIC Model will most likely require to be revised and new MUSIC Model results submitted.

Therefore, the proposal is unacceptable with regard to the objectives and controls in Chapter E2 of the Woollahra DCP 2015, and this forms part of the reasons for refusal.

30. At a public meeting on 16 April 2026, the Woollahra LPP had before it and considered an assessment report (the a****ssessment r****eport) which relevantly:

31. included a Summary of Submissions which did not refer in terms to the Fortify report, but identified the issue set out below and provided the following conclusion:

| Issue | Conclusion | Section | | The subject site is located in Rose Bay settlement area which is hydrogeologically sensitive. The proposed excavation is deep and below the groundwater and it will pose great geotechnical risk, including but not limited to: • Groundwater • Water table and settlement • Structural stability of surrounding properties • Cumulative impacts • Foreseeable damage and long-term adverse effect • Risks that have not been resolved at DA stage and cannot be resolved through conditions of consent | Council's development engineer has reviewed the proposal and noted that the submitted geotechnical report is inadequate. In addition, the submitted documents do not clearly demonstrate impacts to the surrounding properties and infrastructure as a result of changes in hydrogeology or short-term and long-term effects created by construction, and they fail to demonstrate temporary changes to the groundwater level accord with Chapter E2 of the WDCP 2015. This forms part of the reasons for refusal. | 14.10 | | Council has commissioned a series of hydrogeological and geotechnical reports in the past and is well aware of the risks accompanying underground excavation in Rose Bay. | | | | Reliance on qualified expert reports does not resolve the foreseeable risks | | | | The proposal does not comply with the ground water drawdown control | | | | The proposed excavation may lead to foreseeable risks similar to the relevant NSW failure precedents | | | | The findings in the Geotechnical and Hydrogeological Report are contrary to the ones commissioned by Council in the past | | |

2. under the heading “14.10 Part 6.2 Earthworks” reproduced the conclusions of the technical referral report prepared by Council’s development engineer and concluded: “As such, the proposal does not comply with Part 6.2 of WLEP 2014, and this forms part of the reasons for refusal”.

3. under the heading ”15.4 Chapter E2 Stormwater and Flood Risk Management” referred to the comments in the technical referral report in relation to site drainage, and concluded: “Therefore, the proposal is unacceptable having regard to the objectives and controls in Chapter E2 of the Woollahra DCP 2015, and this forms part of the reasons for refusal”; and

4. included the General Terms of Approval provided by WaterNSW.

5. At its meeting on 16 April 2026, the Woollahra LPP determined to refuse the DA. The minutes of the meeting record that Jeremy Murray (author of the Fortify report) addressed the panel. The reasons for refusal include the following in relation to clause B3.4 of the DCP:

“The proposed development does not comply with controls C2, C7 and C8 and objective O1 for the following reasons:

• The proposed excavation volume exceeds the requirement.

• The proposed excavation is located within all setbacks.

• The submitted geotechnical and hydrogeological report is inadequate.

• The submitted documents do not clearly demonstrate impacts to the surrounding properties and infrastructure as a result of changes in hydrogeology, short-term and long-term effects created by the method of construction or changes to the groundwater level are in accordance with the relevant provisions. In addition, the deep soil landscaped area is deficient.”

32. However, as submitted by counsel for Ms McLoughlin, the panel’s reasons for refusal) of the DA make no reference in terms to the Fortify report, nor in terms to that part of Chapter E2.2 of the DCP relating to geotechnical and hydrogeological matters.

33. On 8 May 2026, Council filed a Statement of Facts and Contentions **(**Council’s SOFAC) in the proceedings which inter alia:

34. includes a Summary of Submissions including para 19(j) which provides:

(i) Excavation in hydrogeologically sensitive settlement area does not comply with relevant provisions and it will have geotechnical risks including: (ii) Groundwater. (iii) Water table and settlement. (iv) Structural stability of surrounding properties. (v) Short- and long-term effects. (vi) Cumulative impacts. (vii) Result in relevant failure precedents across New South Wales. (viii) Issues that could not be addressed via conditions of consent if the proposal were to be approved.

2. includes a contention, contention No 6 Excavation impact, in which Council contends that that “the proposed excavation is excessive and inconsistent with the provisions under cl. 6.2 “Earthworks” of the WLEP 2014 or satisfy (sic) the controls set out in Part B3.4 “Excavation” of WDCP 2015”. Particular (b) of contention No 6 provides:

(b) The submitted documents do not clearly demonstrate impacts to the surrounding properties and infrastructure as a result of changes in local hydrogeology, short-term and long term-effects created by the method of construction or changes to the ground level are in accordance with the relevant provisions. In addition, the documents do not demonstrate that there will be no adverse impact on the surrounding properties and infrastructure as a result of vibration created by the method of construction, and no Implementation Plan that includes monitoring program, contingency plan or construction methodology is submitted.

3. includes a contention, contention No 14 Stormwater Impact, which makes reference to the requirements of Part E2.2.4 of the DCP relating to stormwater impact, but not to Parts E2.2.10 and E2.2.11 relating to groundwater (hydrogeology) and geotechnical impact, and absorption systems; and

4. as submitted on behalf of Ms McLoughlin, does not include a contention which in terms relates to groundwater (hydrogeology) and geotechnical impact, and absorption systems, or refers to sections E2.2.10 or E2.2.11 of the DCP.

5. Ms McLoughlin has provided a statement of facts and contentions on which she proposes to rely in the event that joinder is granted. In relation to hydrogeology, Ms McLoughlin’s statement of facts and contentions provides:

3.1. The proposed development includes a two level basement carpark extending about 6 to 7 min depth (to about RL-0.8 m).

3.2. Groundwater is present at the Site and the proposed development will require dewatering.

3.3. Woollahra Development Control Plan 2015, Chapter E2 - Stormwater, Flood and Geotechnical Risk Management, requires a Geotechnical and a Hydrogeological Report in accordance with Attachment 6 to the First Respondent's DA Guide.

3.4. The Geotechnical and Hydrogeological Reports must contain an Implementation Plan, including a Monitoring Programme, Contingency Plan and Construction Methodology.

3.5 The Applicant's report prepared by Douglas Partners entitled "Specialist Advise [sic] on Geotechnical and Hydrogeological Investigation -12-18 Wilberforce Ave, Rose Bay" dated 15 August 2025 was not prepared in accordance with Attachment 6 to the First Respondent's DA Guide.

3.6 Without a Dewatering Management Plan, any results of, groundwater drawdown and settlement due to groundwater drawdown, the impacts on neighbouring and properties either adjacent, nearby or within the locality, cannot be assessed.

Relevant authority

35. In Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 **(**Morrison), Preston CJ of LEC said at [42] to [43] in relation to the then s 39A of the Land and Environment Court Act 1979 (which was re-enacted as s 8.15(2) of the EPA Act):

[42] 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 1979 of the types listed in s. 39A of the Land and Environment Court Act 1979 who would not otherwise have a right to be a party to such proceedings. . . .

[43] . . . 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 all holders of development consent. Rather the circumstances in which the court may order a party to be joined as a party to proceedings of the types listed in s. 39A are limited to the circumstances set out in paragraphs (a) and (b) of s. 39A.

36. And at [52] to [54], in Morrison the chief judge said:

37. [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.

38. [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.

39. [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.

40. In Jon Garling v Northern Beaches Council [2022] NSWLEC 102 **(**Garling) Pepper J at [47] summarised the principles in relation to s 39A as follows:

[47] … the principles applicable to applications for joinder are well established and may be summarised below:

(a) 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]);

(b) 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]);

(c) caution should be exercised before an order for joinder is made (Morrison at [41] – [54]):

(i) 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;

(ii) 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

(iii) 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;

(d) 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]);

(e) so too is a multiplicity of experts;

(f) 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]);

(g) 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]);

(h) 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:

(i) 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

(ii) 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]).

41. In Optus Mobile Pty Ltd v Central Coast Council [2025] NSWLEC 74 (Optus Mobile) Beasley J considered the principles concerning joinder, now in s 8.15(2) of the EPA Act, and made an order for joinder pursuant to s 8.15(2). At [39] to [41] Beasley J said:

[39] There was some suggestion in the submissions made by Mr Tomasetti that Denny would be deprived of an aspect of procedural fairness because the Council and Optus may reach agreement at the s 34 Conference, and thereby leave the Court with the task of only determining if that agreement reflects a decision that the Court could have made in the proper exercise of its functions, which if answered in the affirmative binds the Court to disposing of the Appeal in accordance with the agreement: s 34(3) of the Land and Environment Court Act 1979 (NSW); AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112; Wheeldon v Woollahra Municipal Council [2025] NSWLEC 55.

[40] This might be the case, but it is not on its own a proper ground for joinder.

[41] Ordinarily, if a Court is not persuaded that all issues that should be considered on an appeal such as this will not likely be adequately addressed, it is unlikely that the Court would find it is somehow in the public interest or in the interests of justice for an order for joinder to be made: see Morrison Design Partnership Pty Ltd v North Sydney Council and Director General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 per Preston CJ of LEC, particularly at [48] to [60].

42. In Annandale Street Developments Pty Ltd v Woollahra Municipal Council [2026] NSWLEC 5 and Prosker Pty Ltd v Mosman Municipal Council [2026] NSWLEC 43 (Prosker), Beasley J and Robson J similarly considered the principles concerning joinder in s 8.15(2) of the EPA Act, and in each case dismissed the application for joinder. In Prosker Robson J said at [16]:

[16] Pursuant to s 8.15(2)(a) of the EPA Act, in order to grant leave to a person to be joined to proceedings, the Court must form the opinion that the joinder applicant “is able to raise an issue that should be considered” in the appeal but would otherwise not likely be sufficiently addressed if the person were not joined. Alternatively, under s 8.15(2)(b), the Court can grant joinder if it forms the opinion that it is either in the “interests of justice” or in the “public interest” that the person be joined as a party to the appeal.

Submissions of Ms McLoughlin on joinder

43. The thrust of Ms McLoughlin’s application for joinder concerns the alleged failure of Council’s SOFAC to refer to Chapter E2 of the DCP.

44. Counsel for Ms McLoughlin submitted that particular 6(b) of Council’s SOFAC is a complaint about the submitted documents, “assumed to be predominantly the Douglas Partners Geotechnical Report”, and that whilst it refers to changes in local hydrogeology, it does not refer to the requirements in section E2.2.10 of the DCP for geotechnical and hydrogeological reports – “see C5 – C7 in s. E2.2.10”. It was submitted that controls C6 and C7 require preparation of the report to be in accordance with Council’s DA Guide, requiring in practice preparation of the report in accordance with Attachment 6 to the guide. Whilst the geotechnical report prepared for the applicant by Douglas Partners “purported to have been prepared in accordance with Attachment 6”, Council’s engineer concluded otherwise. Counsel for Ms McLoughlin submitted that “[i]t cannot be said that Contention 6 properly relates to the geotechnical and hydrogeological impact of the proposed development, the subject of s E2.2.10 of the DCP.”

45. The geotechnical and hydrogeological impact of the proposed development was submitted to be a matter to be taken into consideration in the assessment of the DA, “falling into the following matters of relevance to the development the subject of the DA”: (a) the provisions of the DCP (s 4.15(1)(a)(iii) of the EPA Act); (b) the significant likely impacts of the proposed development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality (s 4.15(1)(b) of the EPA Act; and (c) submissions made in accordance with the EPA Act or the regulations (s 4.15(1)(d) of the EPA Act). Despite the hydrogeological and geotechnical impact of proposed developments “having caused the amendment of the section E2.2.10 of the DCP first in 2021 and secondly in 2024 to relate specifically to the Rose Bay locality” and having been raised in the public notification submissions to Council, it was submitted that the issue:

46. was not raised in the assessment report, despite the stated “[awareness] of the risks accompanying underground excavation in Rose Bay” therein;

47. was raised in the reasons of the Woollahra LPP for refusal only in relation to clause 6.2 of the LEP and Part B3.4 of the DCP and then only due to the inadequacy of the submitted geotechnical report;

48. was not raised in the LPP’s reasons for refusal in relation to section E2.2.10 of the DCP, nor despite the panel having heard from Mr Murray, the author of the Fortify report; and

49. was not raised in Council’s SOFAC (other than in reference to the summary of submissions in the assessment report, the LPP’s reasons for refusal, and the inadequacy of the applicant’s Douglas geotechnical report).

50. The geotechnical and hydrogeological impact of the proposed development was submitted to be a significant issue not referred to in the SOFAC in any substantive sense, and one which will not be sufficiently addressed without the joinder sought.

51. Counsel for Ms McLoughlin also referred to clause 6(f) of Schedule B of the Court’s Practice Note, Class 1: Development Appeals which requires, where it is contended that a proposal does not comply with provisions of, relevantly, a development control plan, identification of the provision that is breached. Further, as noted in clause 61 of the Practice Note*:* “Expert opinions in reports and joint reports are to deal with the contentions raised by the parties.” In the absence of a contention relating properly to the geotechnical and hydrogeological impact of the proposed development, there will be no relevant expert evidence before the Court.

52. It was submitted to be “very appropriate for the Court to exercise its discretion and grant leave for the joinder sought”. The issues summarised by Pepper J in Garling which go against joinder do not apply, either at all or sufficiently, to warrant refusal of joinder here. The hydrogeological and geotechnical impact of proposed developments is a significant issue. Council’s recognition of the importance of the issue, and its relevance to the DA make it just, quick and cheap to deal with it in the current proceedings.

Submissions of Lewin Capital on joinder

49. Lewin Capital submitted that in order for the Court to make an order for joinder under s 8.15(2) of the EPA Act, it must reach a state of satisfaction that either:

(a) 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 it is in “the interests of justice” or “the public interest”.

50. Lewin Capital submitted that the Court could not form any such opinion on the material provided by Ms McLoughlin.

An issue that will be addressed in the appeal

51. Lewin Capital submitted that the issue proposed to be raised by Ms McLoughlin concerns hydrogeology, particulars of which are that there should be particular types of “plan” promoted for the development, that the DA is deficient in not providing for such plans, and that in the absence of a dewatering plan the potential for impacts to adjoining properties “cannot be assessed”. That subject matter was submitted to be “entirely covered” by the existing contentions raised by Council in the appeal. Contention 6 particular (b) identifies an issue for assessment by the Court as to whether the DA provides sufficient material to inform assessment of hydrogeological impacts in both the short-term and long-term. A particular concern is identified as the “method of construction” to enable assessment of this potential for impact. Contention 6(d)(i) confirms that in the absence of sufficient information to identify any capacity for short-term or long-term impacts, the scale of excavation involved is likely to be “excessive” and result in impacts to adjoining properties.

52. Lewin Capital submitted that the Court should be satisfied that the appeal raises as a principal contested issue hydrogeology such that Ms McLoughlin would not raise an issue that should be considered in relation to the appeal that is not likely to be sufficiently addressed if she were not joined as a party. Further, it is not generally considered to be in the interests of justice (or the public interest) for the Court to order joinder of persons because this adds parties, and expert evidence, to proceedings and “undermines the efficient conduct of litigation and practice of the Court”: Garling at [47(f)] per Pepper J. It is also not usually considered to be in the interests of justice to join a party merely because the matter is scheduled for conciliation and the council and applicant might reach agreement such that contentious issues are resolved: Optus Mobile at [39] to [40] per Beasley J.

53. Lewin Capital also referred to the usual caution that the Court expresses on the issue: Garling at [47(c)]. Something unusual in the circumstances is usually required for the Court to be satisfied that it is in the interests of justice for a person to be joined because that person will be able to participate in the ordinary way as an objector such that status as a party is unnecessary: compare Optus Mobile at [41] to [42].

Discretion

54. As as an additional matter of concern either in terms of the question of the fulfillment of statutory criteria, or as a matter arising on the general discretion to exercise the power to order joinder, Lewin Capital referred to the ambiguity over the “person” to be joined and their purported “representation” of other adjoining landowners. The affidavit of Mr Christopher made no reference to the Court’s requirements for agent representation. No attempt to grapple with the Court’s usual policy concerning agency had been made by Ms McLoughlin. That it is unclear who the “person” is to be joined and their status with respect to others was a good reason to refuse the present application.

Consideration

55. My reasons which largely reflect the submissions made on behalf of Lewin Capital are as follows.

56. I am satisfied that concerns in relation to the geotechnical and hydrogeological impacts of the proposed development arising from excavation and whether these can be appropriately monitored and managed have been identified in the contentions raised by Council are adequately raised in Council’s SOFAC. Likewise, the issue of stormwater management Particular (b) of contention No 6 raises whether the proposal should be refused because the submitted documents do not clearly demonstrate impacts to the surrounding properties and infrastructure as a result of changes in local hydrogeology, short-term and long term-effects created by the method of construction or that changes to the ground level are in accordance with the relevant provisions. In addition, Council contends that the documents do not demonstrate that there will be no adverse impact on the surrounding properties and infrastructure as a result of vibration created.

57. Contention 6 particular (b) clearly identifies an issue for assessment by the Court as to whether the DA provides sufficient material to inform assessment of hydrogeological impacts in both the short-term and long-term. Contention 6(d)(i) confirms that in the absence of sufficient information to identify capacity for short-term or long-term impacts, the scale of excavation involved is likely to be “excessive” and result in impacts to adjoining properties.

58. Further, the evidence before the Court and summarised at [12] to [20] above demonstrates a keen awareness on the part of Council from at least 2019 of geotechnical and hydrogeological impacts associated with development in the Double Bay Settlement Zone which includes within its catchment land within the Rose Bay Settlement Area. This is reflected in the engagement by Council of GHD to prepare a series of studies, including the May 2024 GHD report “Rose Bay – Hydrogeological and Geotechnical Impacts*”* which proposed amendments to the DCP which were ultimately adopted by Council. Council’s awareness of the geotechnical and hydrogeological impacts of the development proposed here is evident throughout the assessment process to date, including as set out above at [12] to [20], the technical referral report, the assessment report (including the summary of submissions) and the reasons for refusal.

59. As to particulars of the contention in relation to hydrogeology in the statement of facts and contentions on which Ms McLoughlin proposes to rely in the event that joinder is granted, I make the following comments:

60. particular 3.1 is an agreed fact;

61. particular 3.2 is likewise an agreed fact;

62. as to particular 3.3, the sufficiency of the geotechnical assessment has been raised by Council in its SOFAC;

63. as to particular 3.4, this matter is raised in contention 6(b) of Council’s SOFAC;

64. as to particular 3.4, this matter is plainly in contention and raised squarely in Council’s SOFAC; and

65. as to particular 3.6, I am satisfied that this matter has been raised and will be considered by Council without the need for the joinder of Ms McLoughlin to the proceedings.

66. There is nothing in these particulars which goes beyond what is raised by Council in its SOFAC in relation to geotechnical and hydrogeological impacts.

67. Nor, like Beasley J in Optus Mobile at [39] to [40], do I consider that the possibility that Lewin Capital and Council might reach agreement at the s 34 conference is on its own a proper ground for joinder.

68. Ms McLoughlin and the residents she is said to represent have had appropriate opportunity to date for involvement in the consideration of the proposal. They provided a written objection which is reflected in the Summary of Submissions in the assessment report. The author of the Fortify report, Mr Jeremy Murray, addressed the Woollahra LPP at its meeting on 16 April 2026. Ms McLoughlin’s ability to participate as an objector in the hearing, in accordance with the Court’s usual practice, will provide an opportunity for her and the other residents she represents to address the Court and the relevant experts in relation to their concerns.

69. As the chief judge said in Morrison at [52] (in relation to the similarly worded former s 39A of the EPA Act), community consultation and public participation under the EPA 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 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, and according weight to the matters as is considered appropriate; and reaching a merit determination.

70. Further, whilst as his Honour the chief judge observed in Morrison at [54] the process of the community and affected persons being heard and making submissions is important, 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.

71. For the above reasons, I am not persuaded that the issues of concern are not likely to be sufficiently addressed if Ms McLoughlin is not joined as a party to the proceedings. Nor am I satisfied that it would be in the interests of justice or in the public interest that she be so joined. Accordingly, I have determined that Ms McLoughlin’s notice of motion seeking joinder to the proceedings be dismissed.

Orders

66. The Court makes the following order:

67. The notice of motion filed on 9 June 2026 by Carmen McLoughlin seeking joinder as second respondent to the proceedings is dismissed.

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