Lindvest DM Pty Ltd v Ku-ring-gai Council

Land and Environment Court (NSW)|2020-02-04

Judgment

By Notice of Motion filed on 16 January 2020 (Motion), Christina Sau-Ning Koo and Stephen Koo seek an order that they be joined as parties to the Class 1 appeal under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
The Motion is supported by two affidavits, affirmed by: 1. Christina Sau-Ning Koo on 21 December 2019 and filed on 16 January 2020 (the first applicant for joinder); and 2. Tony Moody on 22 December 2019 and filed on 16 January 2020;
Lindvest DM Pty Ltd (Lindvest), the applicant in the Class 1 appeal opposes the Motion and seeks an order that it be dismissed.
Ku-ring-gai Council (Council), the respondent to the Class 1 appeal, neither consents to nor opposes the orders sought by the applicants for joinder.
Lindvest relies on two affidavits, affirmed by: 1. Alexander Ostermayer on 24 January 2020 and filed on that date; and 2. Alexander Ostermayer on 31 January 2020 and filed on that date.
Lindvest also relies on: 1. Council's Statement of Facts and Contentions filed on 28 February 2019; 2. Lindvest's Statement of Facts and Contentions in Reply filed on 24 July 2019; 3. Short Minutes of Order filed in Court on 4 October 2019; and 4. Land and Environment Court of New South Wales Practice Note - Class 1 Development Appeals dated 29 March 2018 (commenced 3 April 2018).

Statutory provision pursuant to which joinder is sought

The applicants for joinder seek an order under s 8.15(2) of the EP&A Act, which 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.
The Court is not satisfied that this is an appropriate matter to order joinder for the following reasons.

The applicants for joinder are not able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed

Paragraph 15 of the affidavit of Christina Sau-Ning Koo dated 21 December 2019 states that the application for joinder is on the basis that: "[15] The Second Applicant and I seek to be joined to the Proceedings so that we may have access to the Amended Plans submitted by the Applicant to the Respondent and to raise issues that are in the public interest as well as of high significance to us and for Our Property including: a. Whether there has been a reasonable offer made in respect of Our Property; b. Whether approval of the DA would result in an unacceptable impact on Our Property by site isolation; and c. Whether drawings prepared by the Applicant concerning the development potential of Our Property, when isolated, are deficient for reason of non-compliance with development controls."
In their submissions to the Court at the hearing of the Motion, the applicants for joinder acknowledge that their town planner Mr Moody has reviewed amended plans and made an objection on their behalf. As such, the Court has considered the Applicant's claim for joinder based on what I will broadly refer to as issues relating to site isolation. The applicants acknowledged in their submissions that the Statement of Facts and Contentions includes the issue of site isolation and how it specifically affects their property. However, it was put to me that although raised, this issue would not be sufficiently addressed. It was put to me that the parties to the proceedings are likely to seek consent orders and if the applicants are not joined as parties to the proceedings there will be no contradictor to the proceedings and the issues of site isolation not sufficiently addressed.
At this point it is useful to refer to the Statement of Facts and Contentions filed in these proceedings and the contentions raised by Council in relation to site isolation and the applicants for joinder's property at 17 Milray Street.
Contention 5 states: "5 The development application should be refused as the development application has failed to demonstrate that adjoining parcels of land not included in the development site shall be capable of being economically developed contrary to the objective and controls of 3B KDCP 2018. Particulars a. The proposal will isolate the adjoining site at 5 Havilah and 17 Milray Street Lindfield which have a combined site area of 881.7 m2. b. The application is not supported by sufficient documentary evidence that reasonable offers and negotiations between the owners f the lots have commenced prior to lodgement of the development proposal based on independent valuation/s that have been submitted to the land owners as at the time (20 march 2018). c. The application is not supported by detailed concept plans, which demonstrate that orderly and economic use with acceptable level of amenity and development of the adjoining sites can be achieved that complies with relevant design criteria and statutory controls. d. The application is not supported by details and diagrams of development for the isolated site(s) that is of appropriate urban form and amenity. The submitted model/diagram does not indicate height, setbacks and resultant footprint pursuant to 3B KDCP 2018. e. The application does not satisfy the Planning Principle relation to Isolation as per Karavellas v Sutherland Shire Council [2004] NSWLEC 251, the adjoining site are to be modelled demonstrating the site is able to achieve a development of appropriate urban form and with acceptable level of amenity, should the adjoining property undergo redevelopment."
Contention 8 states: "8. The development application should be refused as it is not in the public interest and will establish an undesirable precedent in the immediate locality. Particulars … b. The proposed development is not within the public interest having regard to the matters raised in the submissions that have been received by Council."
At paragraph 23 of the Statement of Facts and Contentions, the Respondent lists the issues that were raised by residents in their submissions. Those submissions that particularly relate to site isolation and the property of the applicants for joinder are as follows: "(k) The proposal will isolate the properties at 5 Havilah Road and 17 Milray Street and a reasonable offer in accordance with the caselaw has not been provided as the valuations do not consider the worth of the properties should they be amalgamated with the subject site. (l) The concept plans submitted to demonstrate the viability for redevelopment at 5 Havilah Road and 17 Milray Street exhibit multiple non-compliances with Council controls and would not be a viable design … (p) Unsatisfactory visual and amenity impacts upon 17 Milray Street"
In Mr Moody's affidavit in support of the motion for joinder, Mr Moody attests that "My written submissions have raised a number of issues/concerns including, but not limited to, likely adverse impacts on my Clients' Property". The Court notes that these submissions are included in the exhibit to Mr Moody's affidavit and are reflected in the contentions raised by the Council.
As such, I am satisfied that the issues identified in paragraph 15 of Ms Koo's affidavit are squarely raised in the Council's contentions.
The question before me though is whether those contentions are "sufficiently raised", particularly if the parties to the proceedings apply for consent orders.
I note that in the short minutes of order made on 4 October 2019, the Council is required to to file and serve a bundle of documents 14 days before the hearing which will include, among other things, copies of all submissions from objectors.
Furthermore, paragraph 99 of the Class 1 Practice Note for Development Appeals applies to any application for consent orders, namely: 1. Both parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. 2. Council will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. 3. Additionally, Council will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: 1. the content of the proposed orders (including the proposed conditions of consent); 2. the date of the hearing by the Court to consider making the proposed consent orders; and 3. the opportunity for such person to be heard, or that, in the circumstances of the case, notification is not necessary.
"The whole of the relevant circumstances" for the purposes of paragraph (a) above and the obligation "to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account" for the purposes of paragraph (b) above can reasonably be expected to include all three submissions from Tony Moody on behalf of the applicants for joinder. There will also be an opportunity for all persons who objected, including the applicants for joinder, to be heard at any hearing where consent orders are sought.
As such, for the purposes of s 8.15(2)(a), I am not satisfied that the applicants for joinder are able to raise an issue that is not likely to be sufficiently addressed if they are not joined as a parties.

Is it in the interests of justice that the person be joined as a party to the appeal?

I am now required to consider whether it is in the interests of justice or the public interest to join Mr and Ms Koo. Ms Koo attests in her affidavit that because her property at 17 Milray Street will be affected in a particular way by the proposed development, that she and Mr Koo should be joined. However, as Preston CJ observed in Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 (Morrison) at [50]-[53], that such an approach misunderstands the purpose of public consultation and public participation: "50 To some extent, the application of the Owners Corporation 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. 51 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. 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. 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."
It is my view that it is not necessary to join the applicants for joinder in the interests of justice. As set out in Morrison at [49]: 1. They have been given numerous and meaningful opportunities to be heard through the process of consultation and consideration by the Council; 2. They and the expert engaged by them have had many opportunities to express their concerns as to each of the issues they now wish to raise; 3. There is no suggestion that they have not had adequate opportunity; 4. There will be further opportunity for them to participate (without joinder) in the hearing including any application for consent orders.

It is not in the public interest that the person be joined as a party to the appeal

Ms Koo refers to the public interest in her affidavit at paragraph 15 and Contention 8 in Council's Statement of Facts and Contentions squarely raises the public interest as a reason for refusal, including "having regard to the matters raised in submissions that have been received by Council".
It is my view that the issues which the applicants for joinder wish to raise have been adequately canvassed and will continue to be addressed at any hearing by consideration of the Council documents that will inevitably be tendered as the practice of the Court. I do not consider this a case where the Court would be deprived of meaningful assistance if the applicants for joinder were not joined.
The Court is not satisfied that it is in the interests of justice or that it is in the public interest for the applicants for joinder to be joined as parties.

Orders

The Court orders that: 1. The Notice of Motion for joinder is dismissed.

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: 28 April 2020

(2007) 159 LGERA 361

At a glance

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Judgment (8 paragraphs)

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Cases Cited (3)