Li v Woollahra Municipal Council

Land and Environment Court (NSW)|2023-03-06|Before: Mr J

JUDGMENT

COMMISSIONER: The substantive proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Respondent on 5 May 2022 of development application DA327/2021 (DA) for the demolition of two existing dwelling houses and construction of a dwelling house, swimming pool, landscaping and associated site works (Proposed Development) on land identified as Lot 100 in Deposited Plan 1209632 located at 85-89 Hopetoun Avenue, Vaucluse (Site).
On 7 February 2023, the parties reached an agreement pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) as to the terms of a decision in the proceedings that would be acceptable to the parties and being a decision that the Court could have made in the proper exercise of its functions. The parties requested that the Commissioner dispose of the proceedings in accordance with that decision. The Commissioner has reserved her decision.
On 9 February 2023, two days after the agreement was entered into and during the period that the judgment was reserved, Mr Wise, filed a motion seeking to be joined to the proceedings pursuant to s 8.15(2) of the EPA Act or r 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR) in the alternative.
The Mr Wise owns the property located at the rear of the Site.
I have been allocated to hear Mr Wise's motion for joinder by the Acting Chief Judge.

Background

On 5 August 2021 the DA was lodged with Woollahra Municipal Council (Council) and on 25 August 2021 the DA was notified by the Council.
On 7 December 2021 Mr Wise sent a letter to the Council setting out his objection to the DA which included issues concerning view loss, privacy, overshadowing, inconsistency with the desired future character, height and bulk and characterisation of use. That submission contained drone photographs at various vantage points from his property, which at the time of this motion, had not completed construction.
On 17 January 2022 Mr Wise provided further drone photographs to the Council which were circulated to the parties to the proceedings.
In May 2022 the Council prepared an assessment report for the Woollahra Local Planning Panel (the Panel) recommending approval with conditions. That assessment report assessed the view impacts from Mr Wise's property and used the drone photographs provided by Mr Wise.
Following the publications of the assessment report, on 4 May 2022 Mr Wise provided two further objections concerning the view loss associated with the Proposed Development and provided additional photographs.
On 5 May 2022 the DA was considered by the Panel during its meeting and Mr Wise and his solicitor both made submissions to the Panel at that time. The DA was refused and view loss and views amongst the reasons given for refusal.
On 4 July 2022 the substantive proceedings commenced and the Statement of Facts and Contentions were filed by the Council on the 17 August 2022. That Statement of Facts and Contentions contains 11 contentions. Contention 10 squarely raises view and visual bulk issues from neighbouring properties and concerns regarding the equitable sharing of views and similar issues relating to view impact are also raised at Contention 5 (f) and 6(e).
On 30 September 2022 the matter was listed for mediation before a Commissioner of the Court and Mr Wise addressed the Commissioner at that time about his concerns with the Proposed Development.
On 18 October 2022, the Applicant provided the Council with amended plans for the purpose of the conciliation and hearing listed on 6 and 7 February 2023.
In January 2023 the town planning experts prepared a report which resolved all the contentions in the Council's Statement of Facts and Contentions subject to further revision to the architectural plans to address the bulk and scale and the view impacts. The report annexes a view analysis prepared by Urbis and dated October 2022. That analysis includes Mr Wise's property and uses the drone photographs he supplied.
On 6 February 2023 a s 34AA conciliation and hearing commenced on site and Mr Wise addressed the Commissioner. On 7 February 2023 the parties filed a s 34 agreement with the Court. On 9 February 2023 this motion was filed seeking for Mr Wise to be joined.

Evidence

Mr Wise relied on the following evidence in support of his application; 1. the affidavit of Robin Frederick Wise sworn 17 February 2023; 2. the affidavit of Rosalind Read sworn 28 February 2023; and 3. the affidavit of John Aspinall sworn 1 March 2023.
Mr Wise's application for joinder was neither consented to nor opposed by the Council and was opposed by the Applicant.
It was put to me by the Applicant that Mr Wise's joinder application should be dismissed for the following reasons: 1. the motion is precluded by s 34(3) of the LEC Act; 2. it is inconsistent with the decision of Preston CJ in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2008] NSWLEC 802 ("Morrison Design"); and 3. as a matter of discretion, the timing of the motion whilst the judgment is reserved is contrary to the imperatives of 'just, quick and cheap' under s 56 of the Civil Procedure Act 2005.
The Applicant relied on the evidence of Anthony Boskovitz sworn on 20 February 2023.

Is the application for joinder precluded by the operation of the Land and Environment Court Act 1979?

The motion was filed by Mr Wise following the parties filing a s 34 agreement and the Commissioner reserved her decision.
As set out above, the substantive proceedings were dealt with under s 34AA of the LEC Act, which sets out that s 34 of the LEC Act applies to the proceedings (with certain modifications). Relevantly, s 34(3) makes the following provision with respect to the Court's powers and duties if agreement is reached between the parties: "(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner - (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision."
Once a s 34 agreement has been executed and filed with the Court, the Court no longer has power to consider merit issues and the Court is limited to consider only those issues that go to its jurisdiction: AQC Dartbrook Management Pty Limited v Minister for Planning and Public Spaces [2020] NSWLEC 159 and confirmed on appeal by the Court of Appeal in AQC Dartbrook Management Pty Limited v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112. It was put to me that as Mr Wise only wishes to raise merit issues if joined to the proceedings, that his application for joinder is precluded by the operation of s 34(3) of the LEC Act.
I do not agree with this submission.
Although a s34 agreement has been filed, the Commissioner is reserved. Whether the agreement is a decision that could be made in the proper exercise of the Court's function is not yet determined. The submission that has been put to me disregards the Court exercising this determinative function.
If the Applicant's submission were correct, it could lead to absurd outcomes and mean that if the s 34 agreement was found by the Commissioner to not be within power and the matter proceed to hearing, then the mere filing of the agreement precludes merit issues from being considered.
My view is that the application for joinder is not precluded by s 34(3) of the LEC Act and as such, it is appropriate for me to consider whether the tests for joinder under s 8.15(2) of the EPA Act or r 6.24 of the UCPR are satisfied.

Should joinder be granted

The first issue before the Court, is whether to make an order for joinder under s 8.15(2) of the EPA Act. Section 8.15(2) of the EPA Act states: (2) On 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 the person 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.
Mr Wise's written submissions filed on 1 March 2023 annexes a copy of a proposed Statement of Facts and Contentions that he intends to file if joined to these proceedings. Relevantly, Mr Wise's proposed Statement of Facts and Contentions states that he intends to press Contentions 1 to 11 raised by the Council in its Statement of Facts and Contentions filed on 17 August 2022 and an additional 7 contentions.
The additional 7 contentions which Mr Wise proposes to raise are particularised in detail and are summarised as follows: 1. View analysis by Urbis dated 15 February 2022 lacks certainty; 2. Assessment of view loss under Tenacity principles in relation to 22 Village High Road is flawed; 3. View analysis by Urbis dated October 2022 lacks required details; 4. Calculation of the front and therefore rear setbacks under the DCP is incorrect; 5. Unarticulated side and front elevations do not comply with the DCP; 6. Internal amenity for the habitable rooms is unsatisfactory; and 7. Insufficient detail is provided about the ponds in the front setback.
In respect to Contentions 1 to 11 of the Council's Statement of Facts and Contentions, Mr Wise has informed the court he intends to continue to press those issues. Those contentions have been subject to a mediation with a Commissioner of the Court and conciliation as part of the s 34AA conciliation and hearing process with another Commissioner of the Court. The affidavit of Mr Boskovitz sworn on 20 February 2023 sets out that his client revised the plans in response to the contentions raised by Council and revised them again in response to the joint expert reporting process.
I do not consider the joinder of Mr Wise to be necessary in order to continue to press those contentions. Those contentions are squarely before the Court and although subject to an agreed position between the parties, I am satisfied that the Council's 11 contentions have been sufficiently addressed.
With respect to the additional 7 contentions proposed by Mr Wise, I am satisfied that these issues are sufficiently addressed without the joinder of Mr Wise as a party to the proceedings. These issues concern the view loss analysis undertaken by the Applicant (proposed additional Contentions 1-3) and compliance with the Woollahra Development Control Plan 2014 (DCP) (proposed additional Contentions 4-7).
With respect to the view loss analysis contentions, view loss from Mr Wise's property has been raised repeatedly before the Council. View loss and view loss from Mr Wise's property is discussed in the Council's assessment report, view loss is in the Council's Statement of Facts and Contentions and has been raised by Mr Wise in his submissions to the Council and to the Court. The photographs that Mr Wise requested be considered have been considered and are incorporated into the Applicant's amended materials. I consider view loss and concerns about the analysis of view loss to be sufficiently before the Court and not be a basis for the joinder of Mr Wise.
Turning now to the concerns about non-compliance with the DCP. This is squarely raised by the Council in its Statement of Facts and Contentions at Contentions 7 and 8. Furthermore, these are issues that can also be sufficiently addressed without the joinder of Mr Wise to these proceedings.
It was put to me by Mr Wise that because the Council and the Applicant have filed a s 34 agreement that there is no contradictor to the proceedings and that based on the findings of his Honour Preston J in Avalon Beach Property Pty Limited v Northern Beaches Council [2017] NSWLEC 130; (2017) 227 LGERA 393, it is appropriate for Mr Wise to be joined.
I do not agree with this submission.
Although the parties have filed a s 34 agreement with the Court, the Court has not been deprived of a contradictor. The Applicant and the Council have engaged with the court's dispute resolution processes through mediation, joint expert reporting and conciliation. The Proposed Development has been amended twice, once as a response to the Council's contentions and secondly because of the joint expert report. I do not consider the fact that after engaging in that process and the parties now having reached an agreed position to be analogous to the Court being deprived of a meaningful contradictor.
Each of these matters support a conclusion that the issues sought to be raised by Mr Wise have been sufficiently addressed without him joined as a party.
The second limb in the test for joinder in s 8.15(2)(b) has two grounds: the interests of justice and the public interest.
In relation to the first ground, it is not necessary to join Mr Wise in the interests of justice.
As submitted by both the Applicant and Mr Wise, Mr Wise has been given numerous and meaningful opportunities to make his concerns known. I have already detailed the many opportunities Mr Wise has had to express, both in writing and in person before the Council, the Panel and the Court, his concerns about the issues he wishes to raise about the Proposed Development and which are set out in this joinder application.
I am guided in this finding by his Honour's decision in the Morrison Design matter where at paragraph [53] he states: "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."
In relation to the second ground in subs (b), it is not necessary to join Mr Wise having regard to the public interest. As I have said, each of the issues that Mr Wise wishes to raise have been adequately canvassed throughout the course of the Council's consideration of the DA, the Panel's determination and those issues are evident in the Council's Statement of Facts and Contentions.
This is not a case where the Court would not be able to obtain meaningful assistance as to the issues proposed to be agitated by Mr Wise. These issues have been raised and are evident in the material before the Court.
For these reasons I find that the test for joinder under s 8.15(2) to not be satisfied.
It was put to me that if the test for joinder under s 8.15(2) was not satisfied, that joinder was sought in the alternative under r 6.24 of the UCPR.
Rule 6.24(1) states that: "(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."
Mr Wise is not someone who ought to have been joined to these proceedings and based on my findings earlier in this decision, I do not consider it necessary for Mr Wise to be joined to these proceedings in order to determine all the matters in dispute and joinder should not be ordered.
For all these reasons I find that the tests for joinder under s 8.15(2) and r 6.24 of the UCPR to not be satisfied.

Timing of the application for joinder

Despite finding that the tests for joinder under s 8.15(2) and r 6.24 to have failed, it has been put to me by the Applicant that the timing of this motion is another ground for the dismissal of the motion for joinder.
As I have said, Mr Wise has participated meaningfully in the planning process to date. In both his evidence and submissions he states that his solicitors were engaged to lodge an objection with Council in 2021. Accordingly, it is surprising to the Court that this motion for joinder was put on so late in the proceedings. It comes following two directions hearings, a mediation and a s 34AA conciliation and hearing. Indeed, it wasn't until 9 February 2023, being 2 days after the s 34 agreement was filed in the Court, that this notice of motion for joinder was filed.
In his affidavit evidence Mr Wise sets out his understanding of the circumstances leading up to the filing of s 34 agreement by the parties. However, despite having experienced solicitors engaged prior to these proceedings being commenced and now counsel engaged, I find that no reasonable explanation has been provided to the Court setting out the reasons for the timing of this application.
As I have found that both the tests for joinder have failed, there is no need for me to exercise a discretion. However, in the circumstances of this case, I would have found it appropriate to exercise my discretion and not allowed the joinder due to the timing of the application.
An order for joinder at this stage of the proceedings when the Applicant for joinder has had the benefit of legal representation and participated meaningfully in the planning process before it was brought to the Court and after two directions hearings, a mediation, and a conciliation conference, following which the parties have reached an agreed position needs to weighed against the prejudice such an order would cause to both parties to the proceedings.
My view is that, in this case, an order for joinder at this time would not have accorded with the dictates of justice and the Court's overriding purpose to facilitate the just, quick and cheap resolution of the real issues in proceedings (ss 56 and 57 of the Civil Procedure Act 2005).

Orders

The Court orders that: 1. Mr Wise's motion for joinder is dismissed. Sarah Froh Registrar of the Court

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: 14 June 2023

(2021) 105 NSWLR 152

(2017) 227 LGERA 393

(2007) 159 LGERA 361

(2008) 159 LGERA 361

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