Paino v Woollahra Municipal Council

INTERVENER Mr M Craig, QC with Mr J Maston (Barriser)

SOLICITORS Speed & Stracey

JUDGMENT: IN THE LAND AND MATTER No. 10500 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 25/09/01

S Paino Applicant v Woollahra Municipal Council Respondent JUDGMENT

Facts

1. By Notice of Motion dated 18 July 2001 an objector, Frank Lowy, seeks an order that he be joined as a party to proceedings number 10500 of 2001 or, alternatively, that an order be made granting him leave to appear at the hearing by counsel and solicitor in order to call evidence, cross-examine witnesses and make submissions.
2. The development, the subject of the class 1 proceedings, relates to the erection of a balcony at 106 Wolseley Road, Point Piper. Mr Lowy, who I shall refer to as the objector, owns the property known as 102 Wolseley Road, Point Piper which is directly behind number 106. Number 106 Wolseley Road has a frontage to Sydney Harbour and apparently the views from 106 and 102 are panoramic.
3. The applicant in proceedings number 10500 of 2001, Mr S Paino, opposes both forms of relief. The council opposes joinder of the objector but makes no submission in relation to representation. The basis of the application is made pursuant to Part 8 Rule 8 of the Supreme Court Rules which is adopted in this Court pursuant to Part 6 Rule 1 of the Land and Environment Court Rules 1996.
4. The evidence establishes that there has been a substantial history to the site of the proposed development. On 16 April 1999 Development Application number 363 of 1999 was made to the Woollahra Municipal Council ("the council") and was approved. It related to certain improvements to be erected on the land. Such approval was the subject of a challenge by the objector which was instituted by Class 4 proceedings on 16 September 1999. On 12 October 1999 this Court determined that the consent granted pursuant to Development Application 363 of 1999 was invalid.
5. Thereafter, on 18 October 1999, by Development Application number 1242 of 1999, Mr Paino proposed similar development as that referred to in Development Application 363 of 1999. However, on this occasion it was accompanied by an objection pursuant to State Environmental Planning Policy number 1. On 25 January 2000 the council officers recommended that approval should be granted to Development Application 1242 of 1999.
6. On 14 February 2000 council approved Development Application 1242 of 1999 subject, however, to the deletion of the southern portion of a ground floor terrace, or verandah. On 16 June 2000 the owner of number 106 lodged a further Development Application number 517 of 2000 for the apparent purpose of seeking to reinstate the ground floor terrace or verandah which had been expressly deleted from the approval number DA 1242 1999.
7. On 11 December 2000 council officers recommended approval of DA 517 of 2000 but the Development Control Committee of the council recommended its rejection. On 29 January 2001 council finally resolved to refuse Development Application 517 of 2000 and as a result this Class 1 appeal was instituted. Objector's concerns
8. The basis of the application made by the objector for the relief sought in the Notice of Motion arises in consequence of the nature of the development proposed. The terrace, if constructed, would be laterally 1.8 metres from his dwelling and 0.7 of a metre above an area from which he has substantial harbour views. Accordingly, the objector claims that there would be gross loss of privacy, loss of views and loss of acoustic amenity.

Secondly, the objection is made upon the ground that the proposed development would be contained within a foreshore building line and that no objection has been lodged under State Environmental Planning Policy Number 1. Thirdly, it is claimed that the development would contravene the requirements of State Regional Environmental Policy Number 23. 9. The objector has retained the services of a well known town planner, Mr Neil Ingham, who has prepared a report which, in substance and prima facie, confirms the concerns of the objector. 10. The applicant in the Class 1 proceedings, Mr Paino, submits that the Court should not grant relief based upon the principles which have been established in this Court which seek to inhibit third party objectors where a council is already opposing an appeal, as in the preset case. 11. The council has not yet resolved to actively oppose the Class 1 appeal. However it has indicated that it is prepared to call Mr Ingham if required. The council at present intends to rely upon the evidence of its own town planner and has consulted another town planner who is independent of the council but who has not provided any report. Principles governing joinder 12. Usually in a matter where a development is opposed and third parties seek to be joined, the Court will consider such application very carefully to ensure that the object of the Act, which is to obtain a speedy and uncomplicated hearing, is not impaired. Unless the development is designated development, the Court starts from the position that a sound case will have to be made in order for it to grant any such relief. 13. In Chris v Williams which is unreported but has been published in 1988 for Building Construction Law Reports 276 (Court of Appeal), Hope JA referred to the basis of joinder under Part 8 Rule 8 of the Supreme Court Rules. In a passage contained at 277 his Honour adverted to the fact that special considerations to an application under Part 8 Rule 8 might apply in this jurisdiction where questions of public law are commonly involved and "not matters of private law as are commonly involved in the Supreme Court". 14. The joinder of a party is a serious matter because it necessarily gives rise to appeal rights and also ultimately possibly to questions of costs. Mr Craig of senior counsel, who appeared with Mr Maston for the objector, was unable to nominate any specific case in this Court where in such a matter as that before the Court a joinder had been made. 15. In this case the Court is satisfied that the interests of justice would not be served by making an order joining the objector as a party. It could defeat the purpose of achieving an expeditious and cost effective result in the proceedings. However, that is not the end of the matter. The question is whether some other form of relief should be granted. 16. The Court takes particular note of the history of the developments that have either been approved or applied for in relation to the site known as 106 Wolseley Road. The Court is also conscious of the alleged impact of the current development upon the site. The Court also notes the indecision of council concerning its future conduct of the proceedings. The term, indecision, is not to imply any criticism of council but rather the fact that the council has not yet crystallised its decision concerning the appeal. 17. An application for an adjournment of this hearing was not agreed to by the applicant in the Class 1 proceedings. Accordingly the Court must consider this application without the benefit of knowing that the council will be actively opposing the Class 1 appeal. 18. The Court is also conscious that the objector claims that the issues of council, which have been as being issues in the Class 1 proceedings, do not encompass all of the issues which he would seek to raise. For example, the objector submits that whilst the council has nominated the external impact of the proposed development, it has not specifically referred to the internal impact of the development upon number 106. Secondly, whilst the council has nominated the effect upon the lowest recreation area in number 106, there are other impacts which affect number 106. 19. Subsidiary issues are raised by the objector, namely, whether the requirements of the Foreshore Building Line are satisfied by the proposal and whether there is any impact adverse to State Regional Environment Planning Policy Number 23. Authorities relevant to intervention 20. There have been numerous decisions in this Court concerning applications of a similar kind. It is appropriate simply to observe that the interests of justice in each case must be considered and each case may require differing results. In Jenkins v Leichhardt Council 2000 NSW LEC 150, Bignold J considered that a council's change of opinion justified relief being granted to objectors to appear and present their objections and to adduce expert evidence and to cross-examine witnesses. In Zaitabari v Ku-ring-gai Council 1999 NSW LEC 139 Bignold J considered that it was appropriate that an order be made not limited to calling lay evidence but also calling expert evidence. In Naylor Shaw Associates Pty Limited v Sutherland Shire Council 1999 NSW LEC 11, the Court considered that the interests of justice would not be served by allowing the objectors to call expert evidence but made an order confining their limited appearance to calling lay evidence. In Humphrey and Edwards Pty Limited v Woollahra Municipal Council 1998 NSW LEC 285, the Court considered the interests of justice would not be served if intervention is disallowed where it was apparent that the council had resolved not to oppose the Class 1 appeal when the development clearly impacted upon the objector's property. Lastly, I should observe that in Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2001 NSW LEC 154, McEwen AJ declined to grant the relief sought for representation having observed that the council had assumed the responsibility for conducting a defended Class 1 appeal. 21. In this case the Court considers that the objector is entitled to be apprehensive that his interests might not be served if some form of representation is not permitted. The alleged impact on his property could be severe. There may be matters which have not been fully investigated and will not be investigated if council determines not to proceed with opposition to the Class 1 appeal. Orders 22. For these reasons the Court orders that:

1. Frank Lowy be granted leave to appear at the hearing by counsel and solicitor in order to call evidence, cross-examine witnesses and make submissions.
2. Direct that the matter be placed in a call-over before the Registrar on 25 October 2001.
3. That the hearing be fixed for two days and that in the event there are questions of law which have not been resolved by that date for determination the matter be fixed before a judge.

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