Newcastle Muslim Association v Newcastle City Council

Judgment 1This class 1 appeal is presently listed for hearing on 23 and 24 February 2012, and a local community organisation Elermore Vale Community for Appropriate Residential and Environmental Strategies Incorporated, known by the acronym 'EVCARES', moves the court for orders and directions under s 38(2) of the Land and Environment Court Act 1979 (" Court Act ") so that it may, with the benefit of access to all the expert evidence, make submissions on that evidence by 20 February, cross-examine witnesses at the hearing, and make final submission to the court, at the conclusion of the hearing. 2Such orders are generally referred to as " Double Bay Marina " orders ( Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313), and are available as an alternative to formal joinder as a party to the proceedings under s 39A of the Court Act . 3The intervenor having decided not to press for a s 39A order, the Council neither consents to nor opposes a s 38(2) order, but the applicant has argued against it. 4The parties are agreed that there will be no need to vacate the hearing dates if the order is made, but they have also asked the court to make some fresh directions, by consent, if the order is not made. 5EVCARES is a not-for-profit, non-religious, and non-political resident group, with 650 members. It has submitted various objections to the subject development application ('DA'), which concerns the redevelopment of two homesites in a predominantly low density residential area, for a mosque and associated facilities, at 158A and 164 Crondace Road, Elermore Vale in the Newcastle City Local Government area. The project will cost some $6.64M. The DA was lodged on 9 August 2010, and refused on 22 August 2011. This present appeal was commenced on 20 September 2011. 6On 18 November 2011, leave was granted to the applicant in the appeal to amend the DA, and EVCARES duly made a detailed submission on 19 December 2011 in opposition to the amended DA. The objection (40 pages) also included an expert planner's report (by Garry Warnes of Synerg y, dated 16 December 2011 - a further 19 pages), which EVCARES says inevitably lacked comprehensiveness in dealing with the amended DA, because, particularly, of a lack of detail in or with the DA, in regard to the proposal's impacts on traffic, noise, trees, and stormwater. Mr Warnes concluded (p50 of Simmons' affidavit) that " no proper and meaningful consideration can be given " to the amended proposal. 7On 11 January 2012, Council filed a comprehensive Statement of Basic Facts and Contentions ('SFC'), and a copy was provided to EVCARES, on strict but agreed conditions, so EVCARES could obtain legal advice on the possibility of joinder in the appeal. 8The SFC notes that there were 1022 objections (out of 1055 submissions received) to the initial proposal, including six petitions, and 1415 objections to the amended proposal (with no submissions in support). Those submissions are summarised in detail in annexures to the SFC. They fairly embrace EVCARES's concerns, albeit some are presented in general terms. The Council also contends that the proposal will be prohibited by a draft new LEP, and that there is a problem about owner's consent. 9On 20 January 2012, EVCARES's solicitors made a detailed further submission to Council, emphasising its objections as earlier lodged, and expressing some concerns about Council's contentions, on the basis that some particular EVCARES issues were not specified in the SFC. Details of the concerns were provided, and EVCARES sought clarification from Council as to whether they would be raised in the proceedings. The January 2012 submission is before the court (pp71-74 of the Simmons affidavit 31 January), and, as with the December 2011 submission, I have examined it closely - the objectors contend that the proposal is not an orderly and economic use of land, consistent with the objects of the Environmental Planning and Assessment Act 1979 or the Newcastle Local Environmental Plan 2003, and they particularise planning, acoustic, stormwater, traffic and flora/fauna/tree removal issues. 10A detailed submission is also made in the January letter, regarding the lack of supporting information for concerned citizens to examine, so as to inform their attitude to the amended proposal. As a result of that, they say that the objection which will be presented to the court on the appeal (pursuant to the court's relevant practice note) is incomplete, and may not receive appropriate or adequate attention. 11Council replied to that letter by email on 25 January, indicating that it did not propose to seek leave to add to its SFC " at this stage ", and declining to provide any statements of evidence, in the absence of a direction from the court, which it also did not intend to seek. Council informed EVCARES that the applicant did not propose to serve a SFC in reply. 12On 31 January 2012, the solicitors gave notice to the parties that EVCARES would be filing the present Notice of Motion next day, and sought agreement on the making of s 38(2) directions. 13EVCARES argues that its concerns " are not likely to be sufficiently addressed " in the absence of the s 38(2) order, and that the order sought serves the interests of justice, because of the limiting of the opportunity for all potential objectors to consider the proposal fully and make submissions on its impacts. It insists that it is not opposed to a mosque, but only to the proposed location (Simmons pp5-6). 14They complain specifically (at pp26-27) of misquotations, errors and contradictions in the inadequate amended Statement of Environmental Effects, and of the absence of necessary expert reports (traffic, acoustic, landscape, etc). They draw attention to additional tree removal proposed, and other harmful impacts of the amendments (s 3.7 on p16), and complain of the generally inadequate statement of the amendments (at p52). 15The relevant authorities are clear. The test to apply is not the bona fides of the objection, nor the level of responsibility the intervenor would display if the order is granted. The law has been comprehensively stated in cases such as Morrison Design Partnership Pty Ltd v North Sydney Council (' Morrison') [2007] NSWLEC 802, (2007) 159 LGERA 361 (Preston ChJ); Kavia Holdings Pty Ltd v Sydney City Council ('Kavia') [2003] NSWLEC 195, (2003) 127 LGERA 293, and Meriton Apartments Pty Ltd v Fairfield City Council (No 2) (' Meriton ') [2005] NSWLEC 121 (both Pain J); Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 (Jagot J); Ali v Liverpool City Council [2009] NSWLEC 107 (Pepper J); Azzure-Blacktown Pty Limited v Blacktown City Council ('Azzure') [2009] NSWLEC 63 (Lloyd J); Freshwater Village Developments v Warringah Council [2011] NSWLEC 5 (Craig J). I had caused myself to review these authorities when recently deciding Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116, and, in a class 4 context, in Council of the City of Sydney v Oaks Hotels & Resorts (NSW) No.2 Pty Ltd (No 2 re Harmony) [2011] NSWLEC 234 and Council of the City of Sydney v Oaks Hotels and Resorts (NSW) No.2 Pty Limited (No 2 re Maestri) [2011] NSWLEC 235. 16It is particularly relevant to revisit pars [42]-[56] of Morrison . 17The power to make orders under ss 38(2) or 39A is discretionary, and is used only occasionally. The starting point is clearly observing the line to be drawn between the rights of citizens with views about proposals, and the duty of consent authorities to take those views into account, and, where appropriate, give them proper expression in planning appeal proceedings. The test is that expressed in s 39A - are important views adequately raised by the contradictor, and/or do the interests of justice, or the public interest, require a further voice to be heard? 18The concerns of objectors are heard through their written objections being put before the court, pursuant to practice notes and specific directions, by the Council resisting the appeal, and by the opportunities afforded to objectors to be heard in s 34 conferences, on-site hearings, and sometimes in the courtroom. It is the Council's duty and role to conduct the appeal, once the court steps into its development control shoes, and there is no inherent fault in the Council choosing its own priorities among issues and objections (see Kavia at [36]). Collaboration with objectors in running appeals is commonplace (see Michael Suttor Pty Ltd t/as Michael Suttor Architects v Woollahra Municipal Council [2009] NSWLEC 148, (2009) 169 LGERA 29). 19Participation in the on-site processes provides the opportunity for the group to raise the detailed matters listed in Ms Simmons's submissions at par 16, and it is clear from its documentation that the group is well capable of this task. 20I have concluded that it is not necessary to make the order sought in this case in order for all EVCARES's concerns to be properly ventilated and considered at the hearing. I am satisfied that Council has demonstrated it has put the relevant concerns before the court. The capacity of the Commissioners and Judges who deal with such cases as this ought not be underestimated. It is common for the material before them to be more voluminous and detailed than that before the consent authority at the time of refusal. The test for the making of the orders under ss 38(2) or 39A requires something " special " or " additional " to be made available to the court only through such an order, and it has not been satisfied in this case. 21The interests of the Council and the intervenor have not been shown to be significantly different ( Meriton , at [11]), so I see no utility in making the order sought. 22As my attention was drawn to a comment in Azzure (at [17]), I must add, in conclusion, that the court recognises EVCARES's legitimate interests in this matter, and does not invoke, in regard to those interests, the epithet " officious bystander ". 23Accordingly: (1) The Notice of Motion filed by the intervenor on 1 February 2012 is dismissed. (2) I make no order as to costs on the motion. (3) I make, by consent, the directions in the Short Minutes of Order filed in court today, which I have initialled and placed with the papers. 24I will shortly publish these reasons. 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: 08 February 2012