Mirvac Projects Pty Limited v Ku-ring-gai Council

KEY ISSUES: Appeal :- joinder of neighbour - issues raised and not likely to be sufficiently addressed if neighbour not joined - order for joinder made

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96 Land and Environment Court Act 1979 s 39A

Design Power Assocs Pty Ltd v Willoughby City Council (2006) 148 LGERA 233; CASES CITED: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313; Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119; Segal and Another v Waverley Council (2005) 64 NSWLR 177

APPLICANT Mr T Robertson SC SOLICITORS Lindsay Taylor Lawyers

RESPONDENT LEGAL REPRESENTATIVES: Mr P Marincowitz (solicitor) SOLICITORS DLA Phillips Fox

APPLICANT ON NOTICE OF MOTION Mr J McKenzie SOLICITORS Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MIRVAC PROJECTS PTY LIMITED Applicant

JUDGMENT Jagot J: 1 This is a notice of motion for joinder under 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.

2 Mirvac Projects, the applicant, appeals to this Court under s 96(6) of the Environmental Planning and Assessment Act 1979 against the Council's deemed refusal of its application under s 96(2) to modify development consent 1388/04 granted on or about 22 June 2005. The development consent authorised the demolition of the existing structures on 10 Marian Street, Killara, and the erection of five separate five-storey buildings accommodating about sixty units and 130 car spaces.

3 The consent has previously been modified on a number of occasions. The relevant modification application was lodged on 22 November 2006 proposing modifications described in the application as: Relocation of the driveway entry to the car park under buildings one and two, minor changes to the basement layout and redesign of the landscape plan to suit.

4 According to the statement of basic facts, the building works, as proposed to be modified, commenced before the Council determined the modification application, a circumstance which attracted significant objection from the directly adjoining neighbour at 8 Marian Street, Mr Inglis. Mr Inglis is the owner of 8 Marian Street. He and his wife live in that property. They also own the next property known as 4 Marian Street. The Council refused the modification application in January 2007 on the basis that insufficient and inaccurate information had been lodged to support the application. Subsequently, the Council filed a statement of issues in the proceedings dated 29 January 2007.

5 A site plan shows that 8 Marian Street adjoins the development site on two parts of its southern and western boundaries - in particular, 8 Marian Street directly adjoins the boundary along which the proposed amended driveway is to run. Mr Inglis submits that he should be joined as a party under s 39A(a) and/or (b). With respect to s 39A(a), the notice of motion identifies eight issues said to be issues that should be considered in the appeal and which would not be likely to be sufficiently addressed if Mr Inglis were not joined as a party.

6 As is apparent from the terms of s 39A, the Court has a discretion whether or not to order joinder, but the discretion may only be exercised where the Court forms the opinions in either ss 39A(a) or (b).

7 As Mr Robertson, on behalf of Mirvac, has submitted, s 39A(a) has two elements. First, the section requires an opinion that the person is able to raise an issue that should be considered in relation to the appeal. Secondly, it requires an opinion that the issue would not be likely to be sufficiently addressed if the person were not joined as a party.

8 Issues 1 and 2, as identified in the amended notice of motion filed and served on behalf of Mr Inglis, concern the power of the consent authority and the Court exercising the consent authority's functions to grant an approval to a modification application where the building works the subject of that application have already been constructed. It is clear from the Council's statement of issues that the Council does not propose to raise this issue in the proceedings. Mirvac submitted that the joinder of Mr Inglis was not appropriate under s 39A on two grounds relating to this issue. First, that Mr Inglis had available other means to make his claim about the alleged lack of power, including (for example) a prerogative writ in the Supreme Court and by Class 4 proceedings attacking the existence of the s 96 application necessary to found the Court's powers on appeal and, indeed, those of the Council. Secondly, that the question of the existence of the power, as opposed to the consequences of the exercise of power, had never been doubted.

9 I do not consider that either matter effectively answers Mr Inglis's claim. The context is that Mr Inglis owns land directly adjoining the development site. His property is the only property in the immediate vicinity of the proposed amended driveway. As such, he is not some form of officious bystander but is a person who obviously has a legitimate interest in the activities on the development site which impact upon his amenity. Mr Inglis submitted to the Council that the amended driveway would be deleterious to his amenity by increasing the travel distances within the site. He seeks to raise an issue about the power of the Court to approve the proposed modification. The Council, as I have said does not seek to raise this issue. I consider that this issue - going to the power to approve the application - satisfies the criterion of issues that should be considered in relation to the appeal and, in the particular circumstances of this matter, is an issue that would not be likely to be sufficiently addressed if Mr Inglis were not joined as a party.

10 One of the reasons for this conclusion is that, although the Court is exercising the function of the consent authority, it is doing so in the context of an appeal. In Design Power Assocs Pty Ltd v Willoughby City Council (2006) 148 LGERA 233 Lloyd J dismissed an appeal under s 56A that was taken on the ground that a Commissioner, exercising the functions of a consent authority, had failed to be satisfied as to certain pre-conditions to the grant of consent and to consider relevant matters, in circumstances where those pre-conditions and considerations had not been raised as specific issues in the proceedings. Lloyd J (at 243) referred to an observation of Basten JA in Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 to support his conclusion that, where the Commissioner was not asked to and did not decide the question sought to be raised, it was doubtful whether the statutory appeal jurisdiction under s 56A could properly be invoked. Lloyd J also referred to the decision of the Court of Appeal in Segal and Another v Waverley Council (2005) 64 NSWLR 177 in which Tobias JA observed that the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties. While the issue that Mr Inglis seeks to raise means that the present facts are not directly analogous, those observations indicate that appeals in this Court are determined on the basis of the issues that the parties raise in the proceedings, and not at large.

11 Another reason for this conclusion is that it seems to me that the availability of a prerogative writ and/or Class 4 proceedings is not an answer. I am satisfied that the pre-condition in s 39A(a) is met. The section provides a specific mechanism to avoid the proliferation of proceedings and have all relevant issues determined in the one appeal thereby improving the decision making process in that appeal.

12 Issue 3 in the amended notice of motion concerns the precondition in s 96(2) that the development be substantially the same development as that originally approved. Again, although this is a statutory pre-condition, the inescapable fact is that the Council has not raised an issue in those terms in the appeal. Consistent with the approach in Design Power the Court would be entitled to assume the pre-condition is satisfied absent any such issue being raised. The question whether development is or is not substantially the same development has an important function in the scheme established by s 96. Accordingly, issue 3 is also an issue that should be considered in the appeal and would not be likely to be sufficiently addressed if Mr Inglis were not joined as a party.

13 It seems to me that one other issue Mr Inglis seeks to raise is in the same category - namely, issue 7 in the amended notice of motion, that the amended driveway layout will have a significant adverse impact on the adjoining property of Mr Inglis and his wife. Mirvac submitted that the Council was raising the same issue, particularly by reference to issue 4 in the Council's statement of issues, which refers to the "matters raised by the objector as outlined in a statement of basic facts dated 24 January 2007". However, Mr Marincowitz, the solicitor for the Council, observed that the Council's concern with the driveway was limited to the deep soil planting impacts. As I understand it, the Council will not be running a case for refusal of the modification application on the grounds of adverse impacts of the amended driveway per se. This position seems to me to be consistent with two matters. First, it is a regrettable although common practice in this Court for councils to include in their statements of issues an issue to the effect of, "issues raised by objectors." That type of issue is unhelpful to all concerned because it does not identify any specific matter that the council says should lead to refusal of the application. Secondly, having regard to Mr Marincowitz's clarification of the Council's position and the content of the statement of issues, I am satisfied that Mr Inglis seeks to raise an issue quite distinct from that of the Council and its concern about deep soil planting. Further, although Mirvac submitted that Mr Inglis had not presented expert evidence to support any alleged amenity impact, I do not think that defeats his application. The modification does involve alterations to the driveway. As I have said, Mr Inglis is apparently the only person who submitted an objection to the application in circumstances where his is the home that directly adjoins the driveway. He informed the Council through his solicitors about his amenity concerns arising from the specific changes to the driveway, but the Council has not raised those issues in the proceedings despite the unhelpful terms of issue 4. I think it would be wrong in the face of the Council's express position before this Court to treat issue four differently from the clarification provided by Mr Marincowitz. Although expert evidence may assist the Court in forming opinions under s 39A in certain cases, I do not think it is by any means essential. The Court can form the required opinion in this matter absent expert evidence. Accordingly, I am satisfied that this is also an issue that should be considered in the appeal and that would not be likely to be sufficiently addressed if Mr Inglis were not joined as a party.

14 The fact that Mr Inglis raised other grounds which I consider do not fall within s 39A(a) or (b), for the reasons advanced by Mirvac, is beside the point. There are three matters about which, in my opinion, Mr Inglis is able to raise issues that should be considered in relation to the appeal and which would not be likely to be sufficiently addressed if he were not joined as a party. Given the availability of s 39A in respect of cases such as this I cannot see any reason that would justify the making of a Double Bay Marina order rather than the joinder of Mr Inglis as a party (see Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313). Potential concerns about the length of the hearing and associated costs should and will be addressed through case management to ensure that, insofar as possible, there is no unnecessary duplication of material. Further, in circumstances where the proceedings have not been fixed for hearing and where, as I have said, Mr Inglis is the only objector, given the particular proximity of his premises to the development site, I do not consider that there is any matter which would lead me to decline to exercise my discretion in favour of Mr Inglis, having forming the opinion required by s 39A(a).

15 Mirvac accepted that if Mr Inglis were to be joined as a party the joinder should be unconditional. I agree. Other mechanisms are available to ensure that all parties to civil proceedings fulfil their fundamental obligation to facilitate the just, quick and cheap resolution of the real issues in the dispute.

16 Finally, it should be apparent from what I have said that the opinion I have formed in terms of s 39A(a) is not based on any acceptance of the evidence or submissions on behalf of Mr Inglis alleging some form of inappropriate conduct on the part of the Council. Section 39A does not presuppose any such conduct. The section is prospective, looking towards the position with respect to the appeal proper.

17 It follows that I am satisfied that Mr Inglis should be joined as a party to the proceedings.

18 There is one further observation I wish to make. The notice of motion was fixed for a full day's hearing, apparently at the request of the parties. As I understand it, part of the basis for that estimate was Mr Inglis's position that the Court should take a view of the development site in order to determine the notice of motion. I am prepared to accept that there may be some exceptional case where a view might be appropriate to resolve an application for joinder under s 39A, but it seems to me self-evident that this was not such a case and that a view of the site, as Mr Robertson submitted on behalf of Mirvac, would have involved the parties in a material waste of time and money. A realistic appreciation of the scope of the issues on this notice of motion should have disclosed that this was a short matter, most appropriately listed before the duty judge for resolution on a Friday morning or afternoon. [Discussion with counsel concerning costs of the notice of motion]

19 For these reasons, I make the following orders: (1) Mr Michael Inglis be joined as a party to the proceedings.

(2) The exhibits be returned, other than exhibit D.

(3) Each party is to pay its own costs of Mr Inglis' notice of motion. ****************************

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