Michael Suttor Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2009-07-23

CITATION : Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256

APPLICANT Michael Suttor Pty Ltd

PARTIES : RESPONDENT Woollahra Municipal Council

KEY ISSUES: PRACTICE AND PROCEDURE - SECTION 97 APPEAL :- Application for joinder - expert evidence of town planner - nature of consent orders hearing

LEGISLATION CITED: Land and Environment Court Act 1979 s 39A

Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74 CASES CITED: Humphrey & Edwards Architects Pty Ltd v Council of the City of Sydney [2008] NSWLEC 329 Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195 KSK Developments Pty Ltd v Murray Shire Council [2009] NSWLEC 1215 Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802

APPLICANT FOR JOINDER Mr I Hemmings SOLICITOR Morgan Lewis Attorneys

APPLICANT LEGAL REPRESENTATIVES: Ms H Irish SOLICITOR McLachlan Thorpe Partners

RESPONDENT Ms Thomas, solicitor Wilshire Webb Staunton Beattie Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

09/10290 - Michael Suttor Pty Ltd v Woollahra Municipal Council

JUDGMENT 1 ACTING REGISTRAR: These proceedings come before me as a result of an application made by Chanan and Shelly Mowszowski ("the applicants for joinder") to be joined as parties to the proceedings.

2 The proceedings concern an appeal from a refusal by Woollahra Municipal Council ("the Council") of a development application for alterations and additions to a dwelling house at 18 Wyuna Road, Point Piper on 6 April 2009. The notice of determination contained three grounds on which the application was refused. The first ground relates to equitable view sharing. The second concerns the effect of the bulk scale and design of the building on adjoining heritage items. The third reason for refusal was the impact that the proposed bulk and scale of the dwelling house would have on the views. In particular, this third reason articulated that the effect of non-compliance with building height controls and set back controls was that there would be unacceptable view loss.

3 The appeal to this Court was commenced on 8 May 2009 and first came before the Court for directions on 5 June 2009. At that time the Court was informed that the application had been recommended by a Council officer for approval, but that the Development Control Committee had ultimately refused the application. The proceedings were then adjourned to allow the Council to obtain consultant advice. At the second directions hearing, on 8 July 2009, the Court was advised that the Council had resolved to consent to the orders sought by the applicant and the proceedings were fixed for a consent orders hearing. At that time there was an appearance on behalf of the parties who are now the applicants for joinder, foreshadowing the present application. The consent orders hearing was fixed on a date that was intended to accommodate the present application.

4 The application is made pursuant to s 39A of the Land and Environment Court Act 1979. That section provides: On an appeal under section 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979, 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.

5 It is well established that the Court's power pursuant to s 39A is discretionary. The Court must firstly be satisfied that the circumstances of sub-s (a) or (b) are established. If so, the Court is required to determine whether, in its discretion, it is appropriate to order the joinder.

6 The notice of motion filed by the applicants for joinder seeks, in the alternative, an order that they "be permitted to lead evidence, cross-examine witnesses and make submissions at the hearing of the matter." This order is known as a 'Double Bay Marina' order made pursuant to the Court's general power under s 38(2) of the Land and Environment Court Act (Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313).

7 The application is opposed by the applicant in the proceedings, but is neither consented to nor opposed by the Council.

8 In support of the application, the applicants for joinder rely on the affidavit of Mr McKeough sworn 16 July 2009. That affidavit sets out three types of evidence that the applicants for joinder seek to lead in relation to the development. That evidence was in relation to town planning, surveying and lay evidence. In the course of submissions, however, counsel for the applicants for joinder indicated that surveyor evidence was no longer intended to be relied upon. Further, in circumstances where the applicants for joinder would be giving evidence as objectors in any event, the application was made in order to allow them to lead evidence from the town planner only. A summary of the evidence to be given by the town planner, if the application for joinder is successful, is contained in a letter from Mr Moody at Annexure A to the affidavit of Mr McKeough. That evidence relates to the affect on view loss caused by non-compliance with height and set-back controls, and the issue of view sharing.

9 The Council's evidence in relation to those same issues is contained in the report by the Council's Assessment Officer dated 2 February 2009, and the position paper of Mr Kennan dated 22 July 2009. I am informed by the representatives of the Council that each of these documents will be contained in its bundle of documents, and a copy of the position paper was provided to me for reference at the hearing of the joinder application. The position paper was prepared as a result of the Council engaging an independent consultant in relation to the town planning issues, and was finalised following a private meeting with the Council.

10 Counsel for the applicants for joinder submits that in circumstances where firstly, the applicants for joinder were not given an opportunity to make submissions to the Council in relation to the position paper, and secondly, there are no contentions now raised by the Council, the application for joinder ought to be granted. Specifically, counsel for the applicants for joinder submits that unless there is a competing position, the issues in relation to view loss and view sharing will not sufficiently be addressed. The applicants for joinder therefore submit that the circumstances in s 39A(a) are established. Counsel for the applicants for joinder also submits that the circumstances of s 39A(b)(i) are satisfied in that there was no opportunity for submissions to be made in relation to the position paper, and that as such the interests of justice require joinder for the Court to be properly informed in relation to the issues contained therein. In this respect, counsel for the applicants for joinder refers me to the decision of Preston J, Chief Judge, in Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802. At par 49, his honour refers to the provision to the applicant for joinder "numerous and meaningful opportunities to be heard through the year long process of consultation and consideration by the Council". The applicants for joinder submit that in the current circumstances there is a departure from these principles in that no such long process was involved, and no opportunity was given to participate in consultation in relation to the position paper.

11 Further, the applicants for joinder submit that it is in the public interest for joinder to be ordered in circumstances where their proposed evidence will concern the impact of the development on both their property, the property at number 25, and any future owners of those properties.

12 Finally, counsel for the applicants for joinder submits that there exist no factors that would operate against the exercise of discretion in favour of an order for joinder. In particular, the hearing date would not be altered by virtue of an order for joinder. Therefore, the Court's duty to facilitate the "quick, just and cheap" resolution of the proceedings would not be impeded by the making of an order pursuant to s 39A.

13 A number of submissions are made on behalf of the applicant for the development consent, who opposes the present application. Firstly, it was submitted that the applicants for joinder, and their legal representatives, have no standing to speak on behalf of the other objectors and that the Court should not entertain the proposition that they represent the position of anyone other than the applicants for joinder themselves. Secondly, counsel for the applicant for development consent submits that the evidence from the town planner is unnecessary in circumstances where (a) there has been ample provision throughout the assessment process for his opinions to be expressed, and (b) where the submissions made by him to the Council and referred to in his letter will be contained in the bundle of documents to be before the Court at the consent orders hearing. It is therefore submitted that it is not necessary to allow the town planner to continue to articulate his objections. Thirdly, the applicant for development consent says that by virtue of the practice note in relation to development appeals, the parties (and, in particular, the Council) must be in a position to demonstrate that the relevant controls have been complied with and that it is appropriate for development consent to be granted.

14 It is also submitted that an order for joinder should not be made because it is inappropriate for the applicants for joinder to be given appeal rights. Finally, the applicant for development consent also submits that the expertise of the commissioner hearing the proceedings for consent orders will be sufficient to enable the Court to adequately deal with the issues as they are currently articulated in the submissions, objections and reports. The applicant for development consent submits that if the evidence of Mr Moody were to be considered appropriate for consideration by the Court, the appropriate order may be for the letter dated 16 July 2009 to be included in the bundle of documents.

15 I should indicate at the outset that I cannot accept the applicant for development consent's first submission in relation to standing. The provisions of s 39A are not limited to particular categories of persons. I also do not accept that the presence of appeal rights or otherwise should form a factor for my consideration in whether an order should be made pursuant to s 39A or the Double-Bay Marina order.

16 Counsel for the applicant for development consent referred to a number of decisions of the Court in relation to s 39A in order to support the submissions made. Those decisions include the judgments of Lloyd J in Humphrey & Edwards Architects Pty Ltd v Council of the City of Sydney [2008] NSWLEC 329 and Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63, and the recent decision of Pain J in Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74. Counsel for the applicants for joinder said that the present application can be distinguished from much of the case law by virtue of the fact that those decisions were made in circumstances where the Council opposed the granting of development consent. Whilst I accept this submission, I am of the view that some of the principles articulated in those decisions can be applied in the present application. Three of these principles are that (1) the practice of the Court is to limit the number of expert witnesses on any issue and to prevent the duplication of evidence (Azzure-Blacktown Pty Ltd v Blacktown City Council; Homemaker Hub Pty Ltd v Strathfield Council) ; (2) A written objection may be sufficient to bring the issues of an objector before the Court (Humphrey & Edwards Architects Pty Ltd v Council of the City of Sydney); and (3) In considering whether to make an order for joinder, the Court is required to balance the need for efficiency with the need to have all relevant matters before the Court for the consideration of the development application (Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195).

17 The applicant for joinder relied on the words of Justice Preston, Chief Judge of the Court, at paragraph 57 Morrison Design Partnership Pty Ltd v North Sydney Council: "This is not a case where the Court would be deprived of meaningful assistance if the Owners Corporation were not joined. Sometimes, by reason of agreement being reached between an applicant for development consent and the consent authority, there may be no meaningful contradictor and important issues that the Court needs to consider in order to give a proper and lawful decision, will not be available." 18 It was submitted that the words here are apt to display that in the present circumstances there is no meaningful contradictor and that therefore the applicant for joinder should be joined as a party to the proceedings. However, I cannot accept that the listing of the proceedings for a consent orders hearing is, in itself, sufficient to establish that, in the words of Preston J, "important issues that the Court needs to consider in order to give a proper and lawful decision, will not be available". I considered the same question in KSK Developments Pty Ltd v Murray Shire Council [2009] NSWLEC 1215 and at paragraph 29 I said: "The consent orders hearing is not merely a procedural requirement for the making of final orders. Rather, it is an opportunity for the Court to be provided with all the relevant information and planning laws in order to make its own determination of the development application in accordance with section 79C of the Environmental Planning and Assessment Act. It is required to do so pursuant to its powers arising under section 39 of the Land and Environment Court Act . Preston CJ's [sic] sets this out in par 46 of Morrison Design Partnership Pty Ltd v North Sydney Council : "It is the practice of the Court, as set out in the Practice Note Class 1 - Development Appeals, that on a consent order hearing, the consent authority 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. The consent authority is required to demonstrate that it has given reasonable notice to all persons who objected to the proposed development and advise them that will have an opportunity to be heard before the Court: see paragraph 36."" 19 Therefore, to order a joinder, I must be satisfied that the applicant for joinder, would, if joined, raise issues that would otherwise not be properly brought before the Court if the matter proceeds without joinder. If so, then the circumstances of s 39A(a) are met and I would then turn my mind to whether I ought to exercise the discretion to order joinder. To be so satisfied, I must have regard to the matters that will be before the Court at the consent orders hearing, and to the issues raised by the town planner engaged by the applicant for joinder. The difficulty in doing so is that the bundle of documents to be provided to the court for the consent orders hearing has not yet been filed (and the due date for its filing has not yet passed). However, I will proceed on the basis of the indication made by the Council's solicitor that the bundle of documents will contain the position paper of Mr Kennan dated 22 July 2009, the objections and submissions lodged with the Council, and the documents considered by the Council in the course of it determining the application. Beyond this, I have also proceeded on the assumption that the Council's bundle of documents will comply with order 12 of the usual directions contained in the Practice Note - Class 1 Development Appeals and will contain the relevant provisions of the planning controls.

20 In considering the matters that will therefore be before the court at the consent orders hearing, it is clear to me that the issues raised in the letter of the town planner dated 16 July 2009 do not raise any issue that is not addressed in the position paper of Mr Kennan. The letter addresses Mr Moody's concerns with the council assessment report. Each of those concerns relate to either the compliance with the development controls for height and setback and the resulting view loss, or the principle of view sharing. In relation to compliance with development controls, the letter dated 16 July 2009 and the position paper of Mr Kennan appear to have the following common views: · The proposed development does not comply with the Council's planning control in relation to height (Clause 4.5.7.2 of the Residential Woollahra Development Control Plan 2003 ("RDCP")); · The permission by the RDCP for a third storey for a basement is conditional upon "all other RDCP controls" being met; · The proposed development does not comply with the Council's planning control in relation to set-back (Clause 4.5.4 RDCP); Their opinion varies in relation to whether these non-compliances impact on view loss, and whether such non-compliance forms a sufficient basis on which to refuse the development application. 21 Similarly, in relation to the planning principle on view sharing, both the letter dated 16 July 2009 and the position paper articulate all of the same issues. Whilst the letter dated 16 July 2009 reaches a number of different conclusions to those reached in the position paper, the issues discussed are the same.

22 It is clear from my examination of these documents that the issues articulated by Mr Moody are already sufficiently raised by the documents that will be before the Court at the consent orders hearing. Mr Moody may differ in his conclusions. However, I do not accept the submission made on behalf of the applicants for joinder that unless there is a competing position, the issues in relation to view loss and view sharing will not sufficiently be addressed. Rather, I am of the opinion that the commissioner considering the consent orders will be of sufficient expertise to form their own finding based on the contents of the position paper, the provisions of the planning instruments, and the on-site view. Further, I accept the submission made by the applicant for development consent that the specific opinion of Mr Moody will be before the Court in the form of the submissions made by him to the Council through the assessment process. In accordance with what was said by the Chief Judge in Morrison Design Partnership Pty Ltd v North Sydney Council, the Council will be required to demonstrate that that submission has been properly considered.

23 The relevant issues that are set out by the applicant for joinder in the letter from the town planner are therefore likely to be sufficiently dealt with by the Court when it considers the proposed consent orders, without there being an order made for joinder. I cannot, therefore, be satisfied that the circumstances of s 39A(a) are met.

24 I am also not satisfied that the provisions of s 39A(b)(i) are satisfied. The exclusion of the applicants for joinder from the preparation of the position paper is not a sufficient basis on which joinder should be ordered in the 'interests of justice'. The letter of Mr Moody makes it clear that opportunities for consultation were given by the Council throughout the development process, and submissions were provided by Mr Moody on behalf of objectors to the Council as a result. Again, those submissions will be before the Court and the Council will be required to demonstrate that they were considered in the course of assessment.

25 Finally, I am not satisfied that the circumstances of s 39A(b)(ii) are met. The commissioner is required to consider the public interest in the course of the hearing, and must have regard to the issues set out in the objections, the assessment report and the position paper. There is no public interest over and above these considerations that will be served by an order for joinder.

26 Having determined that none of the provisions of s 39A are established, I must then consider whether it is appropriate to make the alternate "Double Bay Marina" order that is sought by the applicants for joinder. This is a difficult question in circumstances where none of the case law provided articulates why such an order might be appropriate in circumstances where the Court is not satisfied that the provisions of s 39A are established. However, it is clear that I ought to consider the three principles I outlined in par 16 above. In circumstances where the applicants for joinder seek to have Mr Moody prepare an individual report and participate in joint conferencing, I must therefore balance the "cheap" resolution of the issues in the proceedings with what is necessary to ensure that all the relevant issues are before the Court at the consent orders hearing. Based on my earlier findings, I cannot be satisfied that that the evidence of Mr Moody raises any issues that will not already be before the Court. Therefore, the requirement for the "cheap" resolution of the issues in these circumstances in my view outweighs the necessity of having a report prepared by Mr Moody, whether that is an individual or joint report. To require the same would result in a duplication of expert evidence where, as I set out earlier, the only points of difference lie with the conclusions. I therefore decline to make the alternate order that is sought.

27 In the course of submissions, counsel for the applicants for development consent suggested that if the Court considered it appropriate, an order might be made for the letter of Mr Moody dated 16 July 2009 to be included in the bundle of documents filed by the Council in the proceedings. As discussed earlier, Mr Moody's letter sets out concerns in relation to the council officer's assessment report. Whilst I do not have available to me a copy of that report, it appears that some of the views contained in the report are articulated again in the position paper of Mr Kennan. The effect is that Mr Moody's letter articulates different conclusions that those contained in the position paper of Mr Kennan. I do not have a copy of Mr Moody's submissions and so I cannot ascertain whether his letter simply repeats the original submissions made to the Council. Whilst it would be unusual to allow the letter to be included in the bundle of documents, particularly where I am of the view that it fails to raise any additional issue that ought to be considered by the commissioner at the consent orders hearing, I accept that it may be useful for the commissioner to be apprised of Mr Moody's continuing objections as they relate to the contents of the Council officer's assessment report. Whilst there may be little utility in making an order for its inclusion, the making of such an order causes no prejudice to the parties to the proceedings, nor will it compromise the quick, just and cheap resolution of the issues in the proceedings. On that basis I will make the order suggested by the counsel for the applicants for development consent.

That the letter of Mr Moody dated 16 July 2009 be included in the bundle of documents to be filed by the Council in the proceedings; 2. That the Notice of Motion filed 16 July 2009 be otherwise 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.

At a glance

Court

Decision date

Source

Judgment (38 paragraphs)

Parties

Cases Cited (6)

Cited By (2)