Mr Peter Tassis, by Notice of Motion filed 18 October 2017, seeks to be joined as a respondent to Class 1 proceedings instituted by Mr Miles Barclay in respect of the refusal of Woollahra Municipal Council ('Council') to a development application for 6 Rawson Road, Rose Bay, for an addition to an existing dwelling on that site, namely a roof terrace and external spiral staircase ('the DA').
In the alternative to an order for joinder, Mr Tassis seeks an order pursuant to s 38(2) of the Land and Environment Court Act 1979 ('the Court Act') to participate in the s 34AA conciliation conference and the hearing of the matter in the terms set out in the Notice of Motion, being:
1. to participate in the s 34AA conciliation conference in issues relating to view loss and visual impacts, including, without limitation, the calling of expert evidence on view loss and visual impacts; and
2. to participate at any hearing on the merits in issue relating to view loss and visual impacts, including by relying on the expert evidence of Dr Richard Lamb.
The Motion is opposed by Mr Barclay, the applicant in the substantive proceedings and the Council neither consents to nor opposes the Motion.
For the reasons set out below, I dismiss the Motion in its entirety.
[2]
Background
6 Rawson Road is located on the corner of Rawson Road and Churchill Road, Rose Bay, with Rawson Road forming the main western frontage to the block (approximately 18.3m in length) and Churchill Road providing the secondary frontage (approximately 34m in length). The site has an area of approximately 695.6m2. The site is currently occupied by a 2 storey dwelling-house with a flat roof.
Mr Peter Tassis owns the property directly to the east (being the rear) of 6 Rawson Road, Rose Bay, known as 1 Churchill Road, Rose Bay.
6 Rawson Road has a lower elevation than 1 Churchill Road. As such, both properties currently share panoramic views of the main channel of Sydney Harbour, the eastern suburbs, the lower north shore, the Opera House and the Harbour Bridge.
The DA was initially refused on 1 December 2016. Mr Barclay made an application for a review under s 82A of the Environmental Planning and Assessment Act 1979 ('EP&A Act') which amended the original DA. On review under s 82A of the EP&A Act, the DA was refused on 18 April 2017.
On 25 May 2017, the Class 1 Application was filed appealing the Respondent's decision under s 97 of the EP&A Act.
The matter was listed for s 34AA conciliation conference and hearing on 10 and 11 October 2017.
On 10 October 2017, the conciliation part of the s 34AA conciliation and hearing began. On that day a plan, proposing a different layout for the roof terrace was provided to Mr Tassis. At 3pm on the same day a new hand annotated plan proposing a different layout for the roof terrace was provided to Mr Tassis. On 13 October 2017, further plans proposing a different layout for the roof terrace were provided to Mr Tassis.
The proceedings are currently adjourned, and the conciliation component of the proceedings remains on foot and the matter has not yet progressed to a hearing.
[3]
The statutory power to order joinder
The Court has power to make an order for joinder pursuant to s 39A of the Land and Environment Court Act 1979 ('Court Act'). Section 39A states:
"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."
At the hearing of this Motion, Mr Tassis submitted that he be joined on two bases, being that:
1. he is able to raise an issue that would not be adequately dealt with if I do not to make an order for joinder; and
2. it is in the interests of justice.
It is well established that the exercise of the power pursuant to s 39A of the Court Act involves two steps. The first step is that the Court is satisfied that one of the three limbs within s 39A has been satisfied. The second step is whether, in all of the circumstances of the application, the Court is satisfied that it ought to exercise its discretion to order a joinder.
In considering whether to exercise the discretion under s 39A, it is well established that the Court seeks 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 [2009] NSWLEC 63; Homemaker Hub Pty Ltd v Strathfield Council [2009] NSWLEC 74). Further, 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 consideration (Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195 ('Kavia Holdings Pty Limited')).
The questions for my consideration are, firstly, whether there is any issue identified by the applicant for joinder that ought to be raised in the proceedings that would not be adequately dealt with if I was not to make an order for joinder. The second question in this case is whether it is in the interests of justice that I make an order for joinder. The third question concerns whether, if I am satisfied that any one of the limbs within s 39A has been satisfied, I ought to exercise my discretion in favour of making the order for joinder.
[4]
Has Mr Tassis identified an issue that ought to be raised in the proceedings that would not be adequately dealt with if I do not to make an order for joinder?
[5]
Mr Tassis' evidence and submissions
If Mr Tassis' application for joinder was successful, the contentions he would raise can be summarised as follows:
1. insufficient information having been provided regarding:
1. the height of the proposed:
1. deck;
2. 2.4m high timber and/or metal privacy screen; and
3. clear frameless glass balustrade,
1. visual impact and view loss; and
2. visual and acoustic impacts.
These contentions would be supported by the expert report of Dr Richard Lamb dated 18 October 2017, which was annexed to the affidavit of Mr Anthony Boskovitz and read on 24 October 2017. It is also important to note at this point that this report was provided to Council on 18 October 2017 under the cover of a letter on behalf of Mr Tassis and other objectors, setting out their objections to the DA.
Addressing each of Mr Tassis' proposed contentions in turn, Counsel for Mr Tassis submitted that the height of the proposed deck flooring and any proposed balustrades and screening have not been surveyed. As such, the height of these structures and the degree of impact on Mr Tassis' views is uncertain and unable to be accurately determined.
Counsel for Mr Tassis' submits that this failure may lead the Commissioner appointed to this matter to be led into an error of fact.
Relying on the report of Dr Richard Lamb, Counsel for Mr Tassis also submitted that the Sydney Harbour views Mr Tassis currently enjoys from his property would be severely impacted by the use of the roof terrace. It was submitted that although the roof terrace is unlikely to be used daily, it is most likely to be used at times when the view is particularly sought after and particularly valuable, such as during the start of the Sydney to Hobart yacht race, Australia Day celebrations and the New Year's Eve fireworks.
Counsel for Mr Tassis also submits that there would be severe impacts on his views outside of these events due to the proposal to use clear, transparent glass balustrades. Again, relying on the report of Dr Lamb, it was submitted that the presence of dirt on the glass would reduce its transparency and that this along with the combined effects of reflection, diffraction and refraction can result in the distortion of the view when looking through the glass, which would result in unacceptable view impacts.
[6]
Council's contentions
Although Council has adopted a neutral position in respect of this Notice of Motion, the difference between the Council's contentions and the evidence proposed to be led by Mr Tassis is required to be considered as part of the first test under s 39A of the Court Act.
The Council's Statement of Facts and Contentions state that the DA should be refused on the basis of unreasonable impacts on view loss, visual impact and public interest. In respect of public interest, Council contends that "[t]he proposed development should be refused having regard to the matters raised in the submissions received by Council to the extent they are consistent with the contentions set out in this document".
Part A, paragraph 11 of the Council's Statement of Facts and Contentions states:
"The submissions [received by Council] raised the following issues:
•Loss of public and private views
•Loss of visual privacy
•Loss of acoustic privacy
•Adverse visual impacts/excessive bulk and scale
•Inconsistency with the desired future character of the area
•Excessive height
•A staircase similar to that proposed has been previously ordered by the court to be removed."
[7]
Mr Barclay's submissions
In respect of Mr Tassis' first contention, the Court was informed that during the hearing of this Notice of Motion, the height and location of the roof terrace was currently being surveyed and would be pegged out with surveyed height poles in time for the next listing of this matter on 1 November 2017, so that the location of the proposed roof terrace, and the height of the proposed finished floor surfaces and any balustrades and screening would be before the Commissioner, Council and objectors to consider.
Mr Barclay's Counsel also contends that the contentions proposed to be raised by Mr Tassis have already been raised by the Council in its Statement of Facts and Contentions and have been sufficiently addressed in the Joint Report filed by the two town planning experts, Mr Scott Barwick and Mr David Booth retained by Mr Barclay and the Council, respectively. Counsel for Mr Barclay further submits that the specific issues proposed to be raised by Mr Tassis have already been raised by Mr Tassis (and other objectors to the DA) through the DA process and Mr Tassis' opportunity to make submissions at the onsite view during the conciliation conference.
[8]
Findings for first test
In respect of Mr Tassis' first proposed contention about insufficient information, I do not need to make any findings in that regard given Mr Barclay's submissions. As such, the height of the roof terrace and its corresponding impacts will be before the Commissioner at the listing of this matter and, if the matter proceeds to hearing, it is open to her to make any necessary findings on this point.
With respect to Mr Tassis' second and third proposed contentions on view loss and visual impact, I readily accept Mr Tassis' submission that any obstructions between his residence and his view, be it screening, balustrades, or the presence of a number of people on the roof, may at any given time impact his views and that in certain situations those impacts may be severe.
However, these contentions that Mr Tassis proposes to raise all fall squarely within the Council's contentions regarding view loss and visual impacts. Having reviewed the joint experts' report and the Council's Statement of Facts and Contentions, I am not satisfied that the view loss and visual impact contentions that Mr Tassis proposes to raise are issues that are not already before the Court. In fact, adverse impacts on public and private views, loss of visual privacy, loss of acoustic privacy and adverse visual impacts are all set out in Council's Statement of Facts and Contentions and are all issues squarely before the Court.
In light of this I do not find that this first test has been satisfied.
[9]
Is it in the interests of justice for Mr Tassis to be joined to the proceedings?
Mr Tassis also relies upon the second test for joinder, being the interests of justice to support his joinder application. That application is made on two bases. Firstly, that because of the significant impact that development application will have on Mr Tassis' residence, it is in the interest of justice that he be joined. Secondly, and in further support of the first basis, there is a real apprehension that leave will be granted to Mr Barclay to amend the current development application before the Court and that Mr Tassis will not be afforded the opportunity to provide submissions or evidence on the impact a new layout of the roof terrace will have on his residence.
To this end, the applicant for joinder relies on the decision of Moore J in Suh v Liverpool City Council [2016] NSWLEC 25 ('Suh').
In that case Moore J observed:
"I have always understood that this limb, in effect, potentially provided a vehicle for joinder in circumstances where a development proposal was likely to have a significant impact on the specific circumstances of the party seeking joinder. Instances of this nature might arise, for instance, when questions of view analysis, view-sharing and general matters discussed by then Senior Commissioner Roseth in the planning principle in Tenacity Consulting v Warringah [2004] NSWLEC I40 were to be engaged."
In respect to the submission that the plan for the roof terrace could change and a deal struck between Council and Mr Barclay without the opportunity for Mr Tassis' views to be heard, I make these observations. Any agreement entered into under s 34(3) of the Court Act can only be entered if the Commissioner considers the agreement to reflect "a decision that the Court could have made in the proper exercise of its functions". As such, if for example a Commissioner is presented with a s 34 agreement which does not accord with law, despite the parties' agreement, the Commissioner is to refuse to make the agreement.
Furthermore, if a matter proceeds to hearing and leave is granted to rely on amended plans, as the Commissioner hearing the matter has all the functions and discretions of the original decision maker (s 39 of the Court Act), the Commissioner can require the re-notification of amended plans and to hear any objector evidence on those plans.
In respect to the interests of justice, Mr Barclay's Counsel relied on Preston CJ's observations in Morrison Design Partnership Pty Limited v North Sydney Council [2007] NSWLEC 802 at [48]-[54], and submitted that it is not necessary to join Mr Tassis to the proceedings as Mr Tassis has been given numerous, meaningful opportunities to be heard through the approximately year long process of consultation and consideration by the Council of the DA and throughout these proceedings.
Furthermore, Mr Barclay's Counsel submits that as there has been adequate opportunity for Mr Tassis to make objections, and that those objections have been addressed by Council and, accordingly, can be addressed by the Court. It is not in the interests of justice to join Mr Tassis to these proceedings so he can continue to make those objections.
Although the case of Suh may appear to provide clear grounds for the joinder of Mr Tassis to the proceedings, I am of the view that as Mr Tassis' has been afforded a number of opportunities to put his views to the Council and the Commissioner.
Indeed Mr Tassis' concerns have been broadly addressed by the Council in its Statement of Facts and Contentions and in the filed joint town planning report. Furthermore, it is the evidence of Mr Tassis that throughout the s 34AA process, he (and various other objectors) have also been given the opportunity to make submissions to the Commissioner about:
1. View loss;
2. Loss of visual and acoustic privacy;
3. Reflectivity of glass;
4. Diffraction through glass;
5. Economic loss;
6. Photomontage policy of the Court; and
7. Accuracy of height poles on the property.
As such, given the involvement of Mr Tassis in the proceedings and the DA process to date, I am not satisfied that it is in the interests of justice to join Mr Tassis to these proceedings.
Accordingly, the test for joinder fails.
[10]
Is a Double Bay Marina order is appropriate?
As I have determined that it is not appropriate for an order for joinder to be made, I am required to consider a final question concerning whether it is appropriate for an order to be made pursuant to s 38(2) of the Court Act, allowing Mr Tassis to participate in the proceedings in some limited manner.
The effect of such an order would be as described by Pain J in Kavia Holdings Pty Limited (at [7]), that Mr Tassis would be permitted "to adduce evidence and participate in the proceedings but not be eligible to participate as a full party to the proceedings". Justice Pain noted that there was still power to make such an order, notwithstanding the amendment of the Court Act by the insertion of s 39A. Jagot J noted in Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 in relation to s 38(2) at [5]:
"While s 38(2) is not similarly constrained, the types of consideration that are set out in s 39A no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order."
It does not appear to me that there is any power under s 38(2) to allow a party to participate in conciliation conferences as sought by Mr Tassis in this motion.
However, if I am wrong on that point, I am not satisfied that there are any issues in these proceedings that are not likely to be sufficiently addressed in the absence of some special order being made for Mr Tassis' involvement in the proceedings.
In these circumstances, I am not satisfied that it is appropriate to make an order under s 38(2) of the Court Act.
[11]
Conclusion
For the above reasons, this is a not a proper case to order the joinder of Mr Tassis as a party to the proceedings or to make an order under s 38(2) of the Court Act.
[12]
Orders:
The notice of motion of Mr Tassis dated 18 October 2017 is dismissed.
Sarah Froh
Registrar of the Land and Environment Court of NSW
[13]
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Decision last updated: 31 October 2017