Olsson v Northern Beaches Council [2025] NSWLEC 1647

File Number(s): 2025/149906

Publication restriction: Nil

JUDGMENT

1. This matter is a notice of motion for the joinder by Mr Bray as the second respondent to the substantive proceedings (the Motion). The Notice of Motion was filed on 7 August 2025 and heard on 15 August 2025.

2. At the hearing of the Motion, Mr Bray relied on the affidavit affirmed by his solicitor on 7 August 2025 and tendered a proposed Statement of Facts and Contentions (Proposed SOFAC) and the Council’s Statement of Facts and Contentions (Council’s SOFAC). The Applicant in the substantive proceedings relied on the affidavit of his solicitor affirmed on 14 August 2025. Both the Applicant and Mr Bray filed written submissions in respect of the Motion.

3. Mr Bray seeks to be joined under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) which sets out the test for joinder as follows:

8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act)

…

(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.

4. The substantive proceedings are an appeal against the Council’s refusal of the Applicant’s development application for alterations and additions to the existing house at 11 Taylor Street, North Curl Curl (Site).

5. Mr Bray is the owner of 13 Pitt Street, North Curl Curl, being the property adjacent to the northern boundary of the proposed development. Mr Bray’s Proposed SOFAC sets out 11 additional contentions that he proposes to raise if joined to the proceedings. These proposed contentions can be summarised as follows:

6. View loss (Proposed Contention 1);

7. Non-compliances with the Warringah Local Environmental Plan 2011 (Warringah LEP) and the Warringah Development Control Plan (Warringah DCP) (Proposed Contentions 2-6);

8. Additional particulars to contentions raised by the Council in respect of building height, landscaped open space, view loss and insufficient information (Proposed Contentions 7-10); and

9. Deficiencies in the assessment of coastal management matters against ss 2.10 and 2.11 of the State Environment Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) (Proposed Contention 11).

10. Of these 11 proposed contentions, Mr Bray concedes that his Proposed Contentions 7 through to 10 have been raised by the Council, but that his Proposed SOFAC provides additional particulars and without his joinder these matters will not be sufficiently addressed.

11. I disagree. Proposed Contentions 7 to 10 are squarely raised in Council’s SOFAC and my view is that further particularisation of those contentions is not required in order for those issues to be sufficiently addressed by the Court.

12. With respect to Proposed Contention 1 regarding the methodology with regards to view loss impacts. Mr Bray contends that the visual impact assessment conducted by the Applicant does not accord with the Court’s Policy: Use of Photomontages and Visualisation Tools 2024 and, accordingly, is unreliable for the assessment of view loss impacts. View loss is raised in the Council’s SOFAC as its own separate contention. Indeed, the impact on views is also raised in the particulars for Contentions 1 and 2 of the Council’s SOFAC in respect of building and wall height.

13. View loss is a contention that is before the Court. The particularisation of the view loss contention to include details about the methodology used by the Applicant to assess the visual impact of the proposed development does not require the joinder of Mr Bray for the view loss contention to be sufficiently addressed. The Court will, as is usual course, have the benefit of a site view when conducting the conciliation and hearing for this matter. Mr Bray can make a submission to the Commissioner about his concerns at that time and the Commissioner will also have the benefit of observing the impact for themself.

14. I turn now to Mr Bray’s proposed Contentions 2 to 6 which relate to various alleged non-compliances with provisions of the Warringah DCP and Warringah LEP concerning setbacks, zone objectives, earthworks, development on sloping land and the cumulative impacts of these non-compliances.

15. I have reviewed Proposed Contentions 2 to 6 and do not consider these to be a basis on which to order joinder. During the hearing of this Motion, it appeared that the issue which Mr Bray wishes to raise with his Proposed Contention 2 concerns the current built form, rather than the proposed development and as such this is not a proper basis for joinder.

16. With respect to Proposed Contentions 4 to 6, these are jurisdictional matters on which the Commissioner will need to be satisfied whether the matter reaches an agreement at the conciliation or continues to a contested hearing. Although these jurisdictional matters are not expressly raised as contentions in the Council’s SOFAC, it is an express obligation of the presiding officer to consider and give reasons about these jurisdictional issues.

17. As such, I am satisfied that Mr Bray’s Proposed Contentions 4 to 6 will be considered by the Commissioner and that these issues are sufficiently before the Court and will be addressed.

18. With respect to Proposed Contention 3, which concerns the cumulative impacts of the above-mentioned non-compliances, I do not consider this contention a proper basis for joinder. As said above, the non-compliances with the Warringah LEP and Warringah DCP are matters that already need to be addressed by the Commissioner and a contention about the cumulative effects of those non-compliances does not require the joinder of Mr Bray in order to be sufficiently addressed by the Court.

19. The final contention proposed by Mr Bray concerns deficiencies in the assessment of the proposed development due to the Site being partly within the Coastal Use Area and wholly within the Coastal Environment Area under the Resilience and Hazards SEPP.

20. Proposed Contention 11 states that no assessment has been conducted in relation to ss 2.10 and 2.11 of the Resilience and Hazards SEPP which state:

2.10 Development on land within the coastal environment area

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

(3) This section does not apply to land within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6.

2.11 Development on land within the coastal use area

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a) has considered whether the proposed development is likely to cause an adverse impact on the following—

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage, and

(b) is satisfied that—

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

(2) This section does not apply to land within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6.

17. These two sections are jurisdictional preconditions that the consent authority must be satisfied in order to grant a consent. The Council’s SOFAC identifies that the Resilience and Hazards SEPP is one of the statutory controls relevant to the assessment of the proposed development. As such, similarly to my findings in respect of Proposed Contentions 4 to 6 above, it is not necessary for Mr Bray to be joined in order for this jurisdictional issue to be sufficiently addressed by the Court.

18. As such, the first limb of the test for joinder has failed.

19. I turn now to the next limb and consider whether it is in the interests of justice or the public interest for Mr Bray to be joined to these proceedings. Mr Bray relied on the judgment of Justice Moore in Suh v Liverpool City Council (2016) 216 LGERA 84; [2016] NSWLEC 25 (‘Suh’) at [39] where he stated:

“…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] NSW LEC 140 were to be engaged…”

20. Although the case of Suh may appear to provide clear grounds for the joinder of Mr Bray to the proceedings, I am of the view that as Mr Bray has been afforded a number of meaningful opportunities to put his concerns about the proposed development to the Council and will also be afforded a further opportunity to address the Commissioner about those concerns at the on-site view at the commencement of the conciliation and hearing of these proceedings. As such, it is not in the interests of justice to join Mr Bray to these proceedings.

21. It was also put to me that Mr Bray’s Proposed SOFAC raises important issues of precedent relevant to the public interest in terms of non-compliance with the Warringah LEP and Warringah DCP. My view is that Mr Bray does not propose to raise any issue that has not already been considered by the Council, or that will be required to be considered by the Commissioner by reason of it being a jurisdictional prerequisite. As such, there is no need to join Mr Bray to these proceedings in the public interest.

22. Accordingly, the test for joinder fails.

23. The Applicant has sought his costs of the motion.

24. In making a cost order in Class 1 proceedings, r 3.7 of the Land and Environment Court Rules 2007 (NSW) requires that I am satisfied that an order for costs is fair and reasonable before making such an order. There are a range of circumstances set out in r 3.7(3) that describe the circumstances in which the Court might consider it fair and reasonable to make a cost order.

25. That list is certainly not exhaustive, and there is a range of case law where the Court has found other circumstances in which it is fair and reasonable to make a cost order.

26. Although Mr Bray has ultimately been unsuccessful in his joinder and the application has put the Applicant to the cost of defending the notice of motion, I am not of the view that there was any conduct that makes it fair and reasonable for Mr Bray to bear the costs of the Applicant in defending the application.

27. Therefore, I decline to make any order to costs.

28. The Court orders:

29. The Notice of Motion filed on 7 August 2025 is dismissed.

S Froh

Registrar of the Court

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