The applicant has sought its costs of the motion. Costs can be granted under r 3.7 of the Land and Environment Court Rules 2007 if I consider it fair and reasonable in the circumstances. Although I do not consider the test for joinder satisfied and have declined to make a Double Bay Marina order, I do not consider it fair and reasonable to make a cost order in favour of the applicant.
The reasons put forward by the Feldmans for joinder were not without merit and there was no conduct on their behalf which would make it fair and reasonable that there be a cost order against them.
The orders of the Court are:
Parties
Applicant/Plaintiff:
Reddall Street Pty Limited
Respondent/Defendant:
Northern Beaches Council
Legislation Cited (3)
Planning and Assessment Act 1979
Environment Court Act 1979
Environment Court Rules 2007
Cases Cited (8)
Legal Principles
Section 8.15(2) of the Act provides:
(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.
Consideration of an application under s 8.15(2) is a two-step process in which I must first determine whether one of the limbs of s 8.15(2) is met and second, whether to exercise my discretion to make an order: Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44].
In the alternative to being joined as a party pursuant to s 8.15(2) of the EPA Act, the Feldmans' seek to lead evidence, cross-examine witnesses and make legal submissions in respect of Council's SOFC by way of a Double Bay Marina Order, pursuant to s 38 of the Land and Environment Court Act 1979 (LEC Act).
Sections 38(2) and (3) of the LEC Act provide:
(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.
(3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.
The Schedule to the Notice of Motion filed on 6 December 2023 provides a draft Statement of Facts and Contentions proposed to be relied upon by the Feldmans if they are joined as the second and third respondent to the proceedings.
I must now consider whether the issues proposed to be raised by the Feldmans are issues that should be considered by the Court but are not likely to be sufficiently addressed if the Feldmans are not joined as parties in respect of the following matters:
Proposed Contention 1(f)
The first contention sought to be raised is an additional particular to contention 1 of the Council's SOFC relating to building height and the visual bulk as a result of the non-compliance with the height standard in the LEP.
My view is that it is unnecessary to raise an additional particular to Contention 1 in circumstances where clause 4.3 of the LEP is a jurisdictional issue, and squarely put before the Court, and which will be adequately considered by the Court. The lack of an explicit mention of another objective of cl 4.3 does not mean that the Court will not undertake the requisite consideration. As Preston CJ noted in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]:
"Before dealing with ... a merit issue of whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met. The Council accepted that these other jurisdictional preconditions can be met, but noted that the Court, exercising the functions of the consent authority on the appeal, needs to be satisfied itself that the preconditions have been met."
Further to this, I also repeat my observations in JCP Constructions & Development Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1204 at [12] - [19] when the court considers a jurisdictional matter:
"Regardless of whether the parties have reached a consent position, a hearing on the merits is still conducted before the Court and the presiding judge or commissioner must be satisfied on all merit and jurisdictional issues before an order is made to grant consent.
Returning now to the test for joinder. The first proposed ground for joinder is a jurisdictional point concerning the zone objectives of the WLEP I make these observations. Any orders for the grant of consent can only be made if the presiding officer has been satisfied of the proposal on its merits and all jurisdictional preconditions are satisfied.
This has always been the case.
It also means that when a presiding officer is presented with consent orders for a proposal that she does not consider to accord with the law and/or capable of consent on its merits, then she will refuse to make the orders.
So although this jurisdictional issue is not raised in the SOFC, it is important to note that it is an express obligation of the presiding officer to consider and give reasons about this jurisdictional issue.
As such, I am satisfied that the zone objective of the WLEP will be considered by the presiding officer and that this issue is sufficiently before the Court and will be addressed."
I adopt the same approach for proposed particular 1(f) to Contention 1. This is a jurisdictional matter which the Court is duty bound to consider and I find it is not necessary for the joinder of the Feldmans for this issue to be sufficiently addressed.
Proposed Contention 6
Proposed Contention 6 relates to visual privacy and concerns that Lot 4 will result in overlooking of the first floor balcony and ground level private open space of the Feldman' property.
This proposed contention has been raised by the Feldmans in their submissions to the Council and to the Panel. Mr Simington's evidence provides a copy of the Council's Assessment Report and its consideration of this issue when assessing the DA. Ms Feldman's evidence also provides details about her concern about visual privacy impact. Ms Feldman states in her evidence that "Council has elected not to press the visual privacy issue that has a direct impact on the amenity of my property."
Although there appears to be some disagreement about the distance at certain points between the development on the Feldmans' property and the Proposed Development on Lot 4 of the DA, in its assessment of the DA the Council formed the opinion that suitable visual privacy is provided by the Proposed Development.
In determining this point I am guided by the findings of Preston CJ in Morrison Design Partnership Pty Ltd v North Sydney Council & Anor (2008) 159 LGERA 361 (Morrison) in which his Honour stated at [50] - [54]:
"To some extent, the application ... misunderstands the purpose of public consultation and public participation. Meaningful community involvement can, of course, be beneficial in the development assessment process. It can provide members of the community with an understanding of what is happening in their area and how the proposed development may impact particularly on their interests; enable members of the community to participate by making submissions to the consent authority; inform the consent authority; and improve planning decisions.
Community consultation and public participation should not be viewed as being adversarial. The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted.
Community consultation and public participation under the Environmental Planning and Assessment Act are not intended to give the community or affected persons who object to development any entitlement to veto development. The planning scheme established by the Environmental Planning and Assessment Act vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination.
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.
The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal."
Double Bay Marina Order
In relation to the Double Bay Marina Order, Jagot J stated in relation to s 38(2), in her decision Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 at [5]:
"Whiles 38(2) is not similarly constrained, the types of consideration that are set out in s [8.15(2)] no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order."
The Feldmans have brought the issues they consider relevant to the attention of the Council and the Panel. The Feldmans do not need to be joined as a party so as to be able to continue arguing these particular submissions. As previously set out in this decision, the Feldmans will have the opportunity to address the Court at the conciliation and any subsequent hearing of these proceedings. The Feldmans' written submissions will also be put before the Commissioner in the usual course.
My view is that the Feldmans have raised issues that have already been considered by the Council, and those issues are capable of being sufficiently addressed by the Court.
For these reasons, I decline to grant relief in the form of a Double Bay Marina Order.
"Even if I am wrong in finding that the contentions sought to be raised by Ms Butler are not all covered by the statement of facts and contentions raised by the Council, the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think to be sufficiently important does not automatically warrant an order for joinder under s 39A: see Kavia Holdings Pty Ltd v Sydney City Council[2003] NSWLEC 195; (2003) 127 LGERA 293 at [36] per Pain J."
The Court will, in the usual course, have the benefit of a site view when undertaking the conciliation conference. The Feldmans can make a submission to the conciliating Commissioner about their concerns and the Commissioner will have the benefit of observing this impact. If the matter does not resolve at conciliation, the matter will be listed for hearing whereby it is customary for the proceedings to commence with a site view. Again the Feldmans may wish to address the Commissioner hearing the matter about their concerns and the Commissioner will have the benefit of observing this impact.
It is also important to note at this point that Contention 4 of the Council's SOFC raises the Proposed Development's non-compliance with setbacks and the particularises the objectives of the Manly DCP to ensure that local amenity is enhanced by providing privacy.
I am further guided by the findings of Lloyd J in The Sabian Mandaean Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 at [14]:
"Even if I am wrong in finding that the contentions sought to be raised by Ms Butler are not all covered by the statement of facts and contentions raised by the Council, the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think to be sufficiently important does not automatically warrant an order for joinder under s 39A: see Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293 at [36] per Pain J."
As such, I consider this issue to be before the Court and to be capable of being sufficiently addressed without the joinder of the Feldmans'.