Opera Properties Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2017-02-21|Before: Dr J

Solicitors: DG Briggs and Associates (Applicant for Joinder) William Roberts Lawyers (Applicant) King and Wood Mallesons (Respondent) File Number(s): 2016/328619

Judgment

The Uniting Church owns property burdened by a right of carriageway and easement to access land at the rear. The applicant in the proceedings, Opera Properties, seeks development consent for the first stage of a proposal to subdivide that land into 62 lots as well as concept approval for the staged development. The access to the new lots is proposed to be by way of the existing right of carriageway. The Uniting Church, who has objected to the development application, seeks to be joined as a party to these proceedings, which is an appeal lodged by Opera Properties against Northern Beaches Council following the expiry of the deemed refusal period that applies to the staged development application.

Background and Nature of Easement

The right of carriageway and the easement registered on the title of the land owned by the Uniting Church was created as a result of a condition imposed on a consent issued by the Court on 18 January 2000 for development on the land owned by the Uniting Church. The easement allows for a right of carriageway 8 wide, burdening the land owned by the Uniting Church in order to allow access to the land that is now the subject of the present development application. The easement allows access by: "owners, occupiers, invitees and all other visitors of and persons requiring lawful access to the Approved Dwellings. For the purposes of this clause, "Approved Dwellings" shall mean: a maximum of 1 dwelling on Lot 2 in DP 383009; a maximum of 1 dwelling on Lot 1 in DP 383009; a maximum of 3 dwellings on Lot 5 in DP 124602; a maximum of 1 dwelling on Lot 2 in DP 81670
With the proposal to subdivide Lot 1 in DP 383009 and Lots 3, 4 and 5 in DP 124602 into 62 lots, it is uncontroversial that either a variation to the easement would be required or a new easement would need to be registered. The person empowered to release, vary or modify the easement is Pittwater Council, now Northern Beaches Council, the respondent in the present proceedings.

Submissions

The power pursuant to which the Uniting Church seeks an order for joinder arises under s39A of the Land and Environment Court Act 1979 ('the Court Act'), which 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.
In satisfaction of s 39A(a), the Uniting Church submits that there are two specific contentions that it seeks to raise in the proceedings that would not be otherwise dealt with if it was not joined as a party to the proceedings. In support of this submission, the Uniting Church handed up a Draft Statement of Facts and Contentions for consideration on the application.
In the first of those proposed contentions, the Uniting Church asserts that the Court does not have the power to grant consent in circumstances where the application does not provide the final design and construction of the required road access. This requirement is drawn from Cl 6.2(3)(a) of the Pittwater LEP 2014, which applies to the development through s 83C of the Environmental Planning and Assessment Act 1979. Section 83C is enlivened by virtue of the nature of the proposal as a staged development. It allows the applicant to satisfy the obligation under cl 6.2 of the Pittwater LEP 2014 for the preparation of a Development Control Plan (DCP) for the site through the "making and approval of a staged development application". However, s 83C(3) provides that "Any such staged development application is to contain the information required to be included in the development control plan." This information includes that specified requirement in cl 6.2(3)(a) for providing for the final design and construction of the required road access. There is no proposal for there to be works on the right of carriageway as part of the present stage 1 development application. As such, the Uniting Church submits that the failure of the proposal to do this means that there is no power to approve the staged development, and that the Court cannot use a deferred commencement condition to deal with a requirement that is a pre-requisite for approval.
The second contention that the Uniting Church says would not be raised in the proceedings were it not joined is a contention relating to owners consent. The position of the applicant is that the right of carriageway does not form part of the development application and that therefore owners consent is not required. The Uniting Church, however, is of the view that the intensification of the use of the right of carriageway from servicing 6 dwellings to servicing 62 dwellings constitutes a proposal in the application for intensification of use of the existing right of carriageway. In North Sydney Council v Ligon 302 Pty Ltd (1996) 91 LGERA 352, the High Court considered whether the consent of the owner of land over which a right of carriageway existed was required to give owners consent for development on another site that benefited from that right of carriageway. At p 360, the Court found that: "The development application in the instant case is for consent only to a development to be carried out on the Club site. The development application relates solely to the Club site. The use of the Century Plaza land to give access to the Club site is an existing use and, unless that use be intensified, no question of consent to a development of the Century Plaza land will arise."
The Uniting Church therefore submits that because an intensification of the use is necessary by reason of the development application, the right of carriageway forms part of the application and owners consent is therefore required. The Uniting Church submits that, given this issue is not raised in the Statement of Facts and Contentions filed by the Council in the proceedings (except insofar as the issue of consent is raised in relation to the variation of the easement), it is an issue that would not be sufficiently addressed if they were not joined as a party to the proceedings.
The Uniting Church also submits that there are a number of contentions that it could provide additional particulars on were it to be joined as a party to the proceedings. For example, it is submitted on their behalf that the particulars of non-compliance with the Warriewood Valley Roads Masterplan (May 2016) and with the RMS Technical Direction TTD 2016/001 ought to be brought to the Court's attention.
If joined, the Uniting Church says that it would then be able to lead evidence of the current use of the access road and the operational characteristics of their land. The Uniting Church submits that this information would not otherwise be readily available to the respondent in the proceedings.
The Uniting Church also submits that it is in the interests of justice that they be joined as a party to the proceedings in circumstances where the development application affects their property rights. The Uniting Church relies on the decision of Lloyd J in Pro-Vision Developments Pty Ltd v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226 in support of this proposition. At [24] His Honour says: "It would be unthinkable, for example, if an application were made under s 89 of the Conveyancing Act to release, vary or modify an easement, if the owners of the land, having the benefit or burden thereof were not to be afforded the opportunity of becoming parties. It would be equally unthinkable that, where there is a possibility that the Court might release, vary or modify the easement pursuant to its powers under s 39(2) of the Court Act, those whose property interest may be affected should not be afforded the opportunity of being joined as parties."
The applicant in the proceedings submits that each of the contentions sought to be raised by the Uniting Church are in essence and substance already before the Court in the Statement of Facts and Contentions filed by the respondent. The applicant also submits that the Uniting Church has already participated in the development process by sending numerous letters outlining its objections. In light of this, the applicant says that s 39A(a) has not been satisfied.
The applicant maintains its position, supported by expert evidence, that the existing right of carriageway can accommodate access to the proposed development. The applicant says that if the Court does not accept this, it is conventional for the issue of the works required to be dealt with by the imposition of a deferred commencement condition.
It is also submitted on behalf of the applicant that the nature of the gross easement means that the Uniting Church has no rights as a landowner and that it therefore has no special interest that necessitates a joinder. The applicant says that because the terms of the easement can be varied by the Council, the landowner cannot exercise its property rights in any event. The applicant therefore submits that if joinder were ordered, it would put the Uniting Church in a position where it would have greater rights than the more restrictive rights provided for under the existing covenant. As such, the applicant says that s39A(b)(i) has not been satisfied.
The applicant also submits that, even if the limbs of s39A(a) or (b) are met, there is disentitling conduct that the applicant says means that the Court ought not exercise its discretion in favour of ordering a joinder. The applicant points to the provision of the draft Statement of Facts and Contentions in the middle of the hearing of the Notice of Motion as being such disentitling conduct. Further, the applicant alleges that the Uniting Church is not motivated by a true objection, but instead motivated by commercial gain. In that respect the applicant relies on affidavit evidence as to discussions between the applicant and the Uniting Church regarding the sale of other land owned by the Uniting Church.
The Council neither consents to, nor opposes, the application for joinder and did not make any submissions on the application.

Findings

It is well established that there are two steps in the exercise of the Court's power under s 39A of the Court Act. The first is that the Court must be satisfied that one of the limbs within s 39A have been satisfied. The second is that the Court must consider whether, in all of the circumstances of the application, it ought to exercise its discretion to allow a joinder.
Section 39A is not a vehicle to allow an objector to continue to raise its objections. In Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361, at [53], Justice Preston indicates that "A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission."
Similarly, s 39A is not met simply because the applicant for joinder is not satisfied with the way in which the contentions are stated. The submission that the Uniting Church might be able to better particularise contentions already raised is not sufficient, of itself, to meet s 39A(a).
In my view, the contention raised by the Uniting Church asserting that the Court does not have the power to grant consent to a staged development that does not meet cl 6.2(3)(a) is an extension of the matters already raised by the Council in the third contention. The issue of whether the application provides for the "final design and construction of the required road access" is already raised in the proceedings. The inadequacy of the current access is then particularised in contention 7. The question of whether this alleged failure to meet cl 6.2(3)(a) prevents the Court from having the power to grant consent, or whether it can be dealt with by way of deferred commencement condition, flows from the issue already raised. These questions, do not, of themselves, raise an issue that would be unlikely to be adequately dealt with if the Uniting Church were not joined. Rather, they would be considered as part of the determination of whether contention three warrants refusal of the application.
Similarly, the particulars that the Uniting Church wishes to offer in relation to the adequacy of vehicular and pedestrian access on the current access road, including the provision of details of non-compliance with the Warriewood Valley Roads Masterplan (May 2016) and with the RMS Technical Direction TTD 2016/001, does not mean that there is an issue that would be unlikely to be adequately dealt with if there was no joinder. Rather, the issue of the adequacy of the access is already raised, and any further details offered by the Uniting Church are provided in support of existing issues, and may be included in the evidence of the parties' experts, and could adequately be raised through objector evidence.
However, I do accept that the contention proposed by the Uniting Church in relation to owners consent for the intensification of use of the access road is not raised in the Statement of Facts and Contentions. The submissions made by the applicant in response to this issue relate to its substantive content rather than pointing to a basis upon which it could be said that it is already raised or does not satisfy s39A(a) for some other reason. The submission that the issue of owners consent does not arise, and that the present right of carriageway is sufficient to accommodate the additional traffic without any additional works, are submissions that can be made at the substantive hearing on the merits of the application in response to the contention if the Uniting Church is joined and following the hearing of any evidence on the issue. That the issue of owners consent is arguable, and that it is not otherwise raised in the proceedings, is sufficient to satisfy s39A(a).
I am also satisfied that s 39A(b)(i) is met. I accept that the property rights of the Uniting Church are affected by the proposed development. To move from a right of carriageway that allows access to 6 dwellings, to a right of carriageway that allows access to greater than 62 dwellings, affects the rights of the Uniting Church to use their own property. As such, I am satisfied that it is in the interests of justice that they be joined to the proceedings, consistent with the decision of the Court in Pro-Vision Developments Pty Ltd v Ku-Ring-Gai Municipal Council.
Having been satisfied that both s 39A(a) and s 39A(b)(i) have been met, I must then turn to the question of whether I ought to exercise my discretion in favour of ordering a joinder. I am of the view that the exercise of the discretion in the present circumstances is entirely appropriate.
Firstly, the submission that the easement is a gross easement that the Council has the right to vary or modify, and that therefore by joining the Uniting Church the Court would be giving it rights that it does not presently have, cannot be a basis upon which a joinder should be refused. To refuse a joinder application on that basis would be contrary to the intention of s 39A, which is to give an applicant for joinder the opportunity to have the right to participate in the court proceedings in circumstances where the Court considers it appropriate, where it would otherwise have no right to participate. Secondly, the Uniting Church is no ordinary third party objector. The use and enjoyment of their land may be affected by the proposed development, and it should have the opportunity to participate in the proceedings as a party so that it can respond to and lead evidence on matters that could adversely affect its own property rights.
Thirdly, I do not accept that there was any disentitling conduct on behalf of the Uniting Church. They have indicated that they are ready, willing and able to participate in the s34 conciliation conference. I am not satisfied that the Uniting Church is motivated by a desire to stifle the development. Whilst I accept that the draft Statement of Facts and Contentions was handed up in the course of the hearing of the joinder application, the issues raised therein had been articulated in the submissions made and it was provided to assist the Court and the parties to understand the contentions to be raised if the Uniting Church is joined.
The appropriate order is therefore that the Uniting Church be joined as a respondent to the proceedings, allowing them to participate and affording them the procedural fairness that they ought be given to respond to matters that may adversely affect their interests.

The Statement of Facts and Contentions

As I earlier outlined, the bases upon which I considered that s39A is met is the proposed contention by the Uniting Church regarding owners consent for the intensification of the use of the access road, and the fact that the Uniting Church's property rights will be affected by the proposed development with the access by use of the existing access road. The issues raised in the draft Statement of Facts and Contentions handed up in Court on the hearing of the notice of motion concern: 1. The power of the Court, as consent authority, to grant the development consent in circumstances where the proposal does not include the "final design and construction of the required road access" in accordance with cl 6.2 of the Pittwater LEP 2014; 2. The requirement for owners consent in circumstances where the development proposal includes the intensification of the use of the access road owned by the Uniting Church; 3. The alleged failure to satisfy the aims of the Pittwater LEP regarding access, the facilitation of the use of public transport and encouraging walking/cycling, and to protect the health and well-being of current and future residents; 4. The failure to provide suitable vehicular access given the conflict between the existing use of the access road; and 5. Failures to satisfy the Warriewood Valley Roads Masterplan and other requirements for the access road.
As such, each of the proposed contentions concern the access road and fall squarely within the scope of the bases upon which I considered that s39A(a) and (b) had been met, even though some of them, in and of themselves, may have not been sufficient to warrant an order for joinder.
Subject to the parties having an opportunity to respond, I propose that the conciliation conference proceed on Monday 27 February 2017 on the basis of the issues raised in the Council's Statement of Facts and Contentions and the Uniting Church's draft Statement of Facts and Contentions. A direction can also be made for the filing of the final Statement of Facts and Contentions by the now second respondent within 7 days of the termination of the s34 conciliation conference.
The orders of the Court are therefore as follows: 1. Notice of Motion filed by the Uniting Church in Australia Property Trust (NSW) on 20 January 2017 is granted. 2. The Uniting Church in Australia Property Trust (NSW) be joined as the second respondent to the proceedings. ………………………. Registrar Gray

Amendments 14 August 2017 - Correction to typographical errors in [6] and [28]. 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: 14 August 2017

(2007) 159 LGERA 361

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