Progress and Securities Building Pty Limited v Burwood Council

KEY ISSUES: Practice and Procedure :- application for joinder as a party

Environmental Planning and Assessment Act s 79C LEGISLATION CITED: Land and Environment Court Act 1979 s 39A Transport Administration Act 1988 s 5(1)

CASES CITED: Grosvenor Australia Properties Pty Limited v The Council of the City of Sydney [2006] NSWLEC 270

APPLICANT: Mr P Clay, barrister SOLICITORS Emery's Law Firm

RESPONDENT: LEGAL REPRESENTATIVES: Mr S Simington, SOLICITORS Lindsay Taylor Lawyers

INTERVENOR: Mr P Larkin, barrister SOLICITORS Clayton Utz

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PROGRESS AND SECURITIES BUILDING PTY LIMITED v BURWOOD COUNCIL

EX TEMPORE JUDGMENT HIS HONOUR: 1 This is an application by Rail Corporation NSW (RailCorp) for an order pursuant to section 39A of the Land and Environment Court Act 1979 that RailCorp be joined as a respondent to the proceedings, and also seeking directions for the preparation and conduct of the proceedings. The respondent council supports the application by RailCorp for joinder.

2 RailCorp's notice of motion was returnable on 28 July 2006. On that occasion it was stood over until today and orders were made that in relation to issues identified by RailCorp numbered 1, 2 and 3 in paragraph 30 of the affidavit of Jim Tsirimiagos sworn on 26 July 2006, meetings of experts take place on 31 July 2006 and 3 August 2006. Those meetings have taken place.

3 In support of RailCorp's motion, two affidavits have been read by Jim Tsirimiagos, one sworn on 26 July 2006 and the other today, 4 August 2006. There is also tendered in evidence on behalf of the applicant some draft minutes of a meeting with the experts that was held yesterday.

4 The hearing is fixed to commence on Monday fortnight, 21 August. The evidence indicates that RailCorp first became aware of the proposed development on or about 21 April 2006.

5 The case concerns an appeal from a refused development application for a multi-storey commercial/residential development consisting of ground and first floor commercial and three residential towers containing 233 residential units over a four level basement carpark for 307 cars. A plan of the proposed development is in evidence and indicates that it is close to a railway retaining wall which separates the railway line from the proposed development.

6 RailCorp has an easement for access and maintenance over the property. Railcorp also has the benefit of a restrictive covenant whereby the owner of the property, its successors and assigns, will not, prior to submission to RailCorp (or its predecessor in title SRA) of all plans and specifications for any proposed building works, and without the prior written approval of RailCorp and the Minister for Transport, erect, construct or place any building, structure or retaining wall on the property, or carry out any excavation or alteration to the surface levels of the property.

7 Upon becoming aware of the proposed development, communications occurred on behalf of RailCorp with various persons. On or about 9 May 2006, RailCorp became aware that the development application was the subject of an appeal in this Court. On 16 May, RailCorp wrote a letter to the council setting out its key concerns in relation to the proposed development. On 31 May, RailCorp representatives met with architectural and engineering consultants who represented the applicant in relation to the proposed development. At that meeting, those consultants indicated that they would need to consider the constructability of the towers, given the constraints and maintenance issues, and that they would need to think about the basement excavation.

8 On or about 4 July, RailCorp received an email from the council attaching a letter of 23 June 2006 which stated that the plans in respect of the DA had been amended. The amended plans indicated that the proposed development has been revised to provide a setback of one metre outside the RailCorp easement for the ground floor and first floor only, but that other floors of the proposed residential tower still overhang over the RailCorp easement along the site boundary and the railway retaining wall, and that the proposed carparking basement remains within the boundaries of the RailCorp easement.

9 On 11 July 2006, RailCorp received a request from the council as to whether RailCorp would be prepared to give evidence at the hearing of the appeal, and received notification from the council that the hearing was likely to be from 21 August 2006. This was the first time that RailCorp became aware that the proceedings were at a stage where they could be listed for hearing. Next day, RailCorp received some additional sketch plans from the applicant.

10 On 19 July, RailCorp was informed that the appeal had in fact been set down for hearing commencing on 21 August. Shortly thereafter, RailCorp sought legal advice.

11 RailCorp considers that the location of the proposed development relative to the RailCorp land and associated railway infrastructure and facilities raises significant concerns for the construction and post-construction development. Key concerns for RailCorp in relation to the development include (and I summarise) safety and engineering concerns arising from the unacceptable proximity of the proposed development to the electrical infrastructure of the rail line; structural and engineering and safety issues; safety and operational concerns arising from what is said to be the unacceptable proximity of the proposed development to the rail line; and excessive provision for carparking. Details of those concerns are set out in the affidavit of Mr Tsirimiagos of 26 July 2006.

12 RailCorp's concerns appear to have been, on the one hand, expanded; on the other hand, dealt with, as appears from Mr Tsirimiagos's subsequent affidavit of 4 August 2006. It is unnecessary for me, for present purposes, to address the details of that development beyond noting that this affidavit includes a statement of issues following the conferences between experts to which I have earlier referred, which sets out some fourteen issues which RailCorp wishes to raise. The statement of issues indicates that some of those concerns are able to be dealt with by the imposition of appropriate conditions. In the main, the concerns are to do with safety and structural integrity issues.

13 There is a consequential consideration as to whether the building is capable of being designed to provide an appropriate level of internal amenity for its occupants in terms of cross-ventilation, especially in summer, if ultimately it were to be thought that there is a need for the provision of fixed windows for the entire northern face of the building, which RailCorp regards as necessary to protect the rail lines. 14 Based upon the preliminary assessments carried out to date, and having regard to the information provided to date, RailCorp does not consider that the issues are likely to be able to be resolved by conditions of development consent, even if the development application was amended in accordance with the amended plans and the report, that report being exhibited to the second affidavit of Mr Tsirimiagos.

15 Section 39A of the Land and Environment Court Act 1979 provides as follows: On an appeal under section 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.

16 In Grosvenor Australia Properties Pty Limited v The Council of the City of Sydney [2006] NSWLEC 270, Pain J ordered that RailCorp be joined as a party to the proceedings. That was in circumstances where there were class one proceedings concerning a proposal for two residential tower blocks above an existing multi-level carpark in Kent Street, Sydney. Her Honour was of the view that a consideration of whether an in-principle consent at that stage for the two residential towers would impact on future development of a major public infrastructure proposal immediately below ground was a relevant consideration under section 79C of the Environmental Planning and Assessment Act. That future development, concerned the Metrowest Rail Link. Her Honour was attracted by the proposition that the Court needed to consider whether the proposed development could be built without impact on the Metrowest Rail Link site and, if there was likely to be an impact, whether it was so minor as to be acceptable. Her Honour held at [19]: RailCorp has a particular knowledge of and concern about a major public infrastructure proposal potentially impacted on by this development. It has an important role to play in assessing development which potentially impacts on the Metrowest Rail Link. This is confirmed by the statutory instruments which apply to the Metrowest Rail Link project generally. While its role under the City of Sydney Act 1988 is not that of a concurring authority because of the particular manner in which developments in the CBD is undertaken by the Planning Committee, its role is still significant in the context of this site. It should be joined as a party.

17 The applicant concedes properly that if the issues raised by RailCorp remain live issues, then RailCorp is uniquely placed to deal with them. It is suggested by the applicant, however, that the motion should be stood over for at least a week in order to ascertain whether the ongoing discussions between experts resolve the issues that RailCorp has raised, such that it would then become unnecessary for RailCorp to be joined as a party to the proceedings. Alternatively, it is suggested by the applicant that if RailCorp were to be joined as a party, then the order should be suspended for seven days and then the position could be reviewed in light of whether or not the issues raised by RailCorp have by then been resolved.

18 The council's position is that it wishes to know what the issues are, that the issues that have been raised are all RailCorp issues, and that it is appropriate that RailCorp should be joined as a party.

19 I am satisfied in the circumstances of this case that RailCorp should be joined as a party under section 39A(a) and (b) (i) and (ii). A relevant consideration is that section 5(1) of the Transport Administration Act 1988 sets out RailCorp's principal objectives, which include:

(a) to deliver safe and reliable railway passenger services in New South Wales in an efficient, effective and financially responsible manner, and

(b) to ensure that the part of the New South Wales rail network vested in or owned by RailCorp enables safe and reliable passenger and freight services to be provided in an efficient, effective and financially responsible manner.

20 In addition to being satisfied that RailCorp is in a possibly unique, but certainly particularly strong position, to deal with issues which may have the potential to threaten the safety and structural integrity of rail facilities, RailCorp also is in a special position by reason of the easement and restrictive covenant to which I have earlier referred. It appears, by its participation in expert conferences and by the application that it is now making, that it has an interest in seeing whether the issues that it has raised can be resolved in a way which may achieve a constructive outcome for the applicant and the council.

21 I therefore order that Rail Corporation NSW be joined as a party to the proceedings.

22 By consent, I also make directions in accordance with paragraphs numbered 3 to 10 inclusive of the short minutes of order, prepared by the parties which I initial and date 4 August 2006, and place with the papers. I note that paragraph 8 of those short minutes contains a direction that the matter be listed for mention before the trial Judge or Commissioner at 4.15pm on 14 August 2006.

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.