This matter came before me on 15 December 2017 by a Notice of Motion filed 8 December 2017. Given that the section 34 conciliation conference was listed for the following week, at the request of the parties, I gave my orders in respect of the motion on 15 December 2017 with my reasons to be provided at a later date.
My reasons for dismissing the motion are now set out below.
Mr Samuel Gazal sought to be joined as a respondent to Class 1 proceedings instituted by RNB 49 Drumalbyn Pty Limited in respect of the refusal of Woollahra Municipal Council ('Council') to a development application for 49 Drumalbyn Road, Bellevue Hill (the 'Site'), for the demolition of an existing 3 storey residential flat building and the construction of a new residential 4-5 storey flat building and associated subdivision and landscaping works.
In the alternative to an order for joinder, Mr Gazal sought an order pursuant to s 38(2) of the Land and Environment Court Act 1979 ('the Court Act') to intervene in the proceedings.
The Motion was opposed by the applicant in the substantive proceedings and the Council neither consented to nor opposed the Motion.
For the reasons set out below, I dismiss the Motion in its entirety.
[2]
Background
The Site has north-eastern frontage to Drumalbyn Road and rises approximately 8m from the street frontage to the rear boundary. The Site has an area of 837.5 metres and is occupied by a 3 storey inter-war Spanish Mission residential flat building named Palomar consisting of 6 x 2 bedroom units and 2 detached triple garages located on the street alignment.
The locality is characterised by a mixture of 2-4 storey detached dwelling houses and residential flat buildings. Mr Gazal owns an adjoining property to the Site, being 47B Drumalbyn Road, Bellevue Hill.
Between the Site and Mr Gazal's property there is a cypress hedge (also called a Leighton Green pine tree hedge throughout this decision). Access to Mr Gazal's property is via a common driveway which is understood to be owned and maintained by agreement between the owners of 47A, 47B and 47C Drumalbyn Road, Bellevue Hill.
The Site has been subject to a number of development proposals over the last few years and it is useful to set them out at this point. On 31 August 2015, Council approved DA 53/20151 for the conversion of the existing residential flat building into 7 x 3 bedroom units and 8 car spaces. That consent was modified on 11 April 2016 under DA 53/2015/2 and currently remains on foot ('First DA').
The Development Application Assessment Report for the First DA considered the visual impact of that proposed development upon adjoining properties. With regards to the south-western (rear) elevation (being the location of Mr Gazal's property) the Council considered that "the rear elevation will be adequately screened from the adjoining property to the rear by a row of 7-8m high Leighton Green pine trees which are considered to be adequate in terms of mitigating the visual impact of the proposed rear addition upon the adjoining property [to] the rear (47B Drumalbyn Road)…".
The Council also considered the effects of overshadowing by the First DA and found that "the proposed rear addition will not have any significant additional shadow impact upon the adjoining property beyond that cast [by] the row of existing 7-8m high Leighton Green pine trees...".
The development approved under the First DA also included excavation works. The impacts of those excavation works were considered by Council, and the conditions of consent provide numerous standard conditions that deal with the protection of adjoining property in respect of building work, including the preparation of a dilapidation report for 47B Drumalbyn Road.
On 21 December 2016, DA 577/2016 was lodged seeking approval for the demolition of the current structure and construction of a 4 storey residential flat building comprising 7 x 3 bedroom units and basement car parking for 16 car spaces (Second DA).
The Development Application Assessment Report for the Second DA dated 5 June 2017 ("Second DA Assessment Report") notes that an objection was received on behalf of Mr Gazal regarding the overshadowing and potential pruning impacts of the proposed development on the cypress hedge. These concerns were addressed in the Development Application Assessment Report for the Second DA, with the Council's tree and landscape officer providing the following comments:
"Shadow impact upon the health of the Leyton's Green Cypress hedge located on the adjoining property to the rear (47B Drumalbyn Road)
Photosynthesis is the absorption of light though tree foliage which results in energy production for plants.
The decrease in direct light (as a result of the proposal) to the north-eastern face of the hedge may result in diminished potential for the hedge to absorb as much light as existing. In theory there may be a diminished potential for photosynthesis.
While this may result in some thinning of the hedge on its north-eastern face, I am of the opinion that the shadow created by the building is unlikely to impact the south-western side of the hedge.
In fact what may result (as a natural compensatory mechanism from the tree) is an increase in foliage growth on the top of the hedge and south-western side (facing 47B Drumalbyn Road).
Leightons Green Cypress are also considered a robust species and tolerant of shade. This means that they maintain an ability to photosynthesise and function even under conditions where mostly only indirect light is available.
[3]
Pruning/root impacts
Ensure the previously supplied George Palmer arboricultural impact assessment (submitted as part of [First DA]) forms part of any development consent.
Given the almost identical nature of the proposal to [First DA] most of the tree and landscape conditions that formed part of [First DA] are relevant to this application.
…
the level of pruning that may be required for adequate clearance to exist between the proposed building and the Leightons Green hedge at 47B Drumalbyn Road …
Accordingly, an arboricultural pruning specification, relating the above-mentioned trees, requiring the following information was requested on 21 April 2017:
Location of branches to be pruned within the crown;
Branch size and percentage of crown loss resulting from pruning;
Implications on tree health and structural condition resulting from tree health;
Pruning class in accordance with Australian Standard 4373 (2007) - Pruning of Amenity Trees
The report must consider distances and setbacks required not only for the proposed building but temporary structures such as scaffolding and hoarding.
Arboricultural pruning specifications were submitted to Council on 3 May 2017 which have been taken into consideration in terms of forming the recommended conditions of consent that is designed to ensure the protection of the above mentioned trees during pruning…
The subject application involves the same potential impacts upon the trees as that pertaining to the approved development [First DA] and is considered to be satisfactory in this regard by Council's Trees and Landscape Officer/ Tree Management Team Leader subject to conditions…"
The Second DA Assessment Report also recommended a condition of consent requiring a dilapidation report to be prepared for 47B Drumalbyn Road, and such report was to also include the shared driveway.
The determination of the Second DA was deferred for a number of reasons following a council meeting on 19 June 2017. One of the reasons for deferral was to allow the Applicant to make an undertaking to purchase an insurance policy in the amount of $20M to cover any damage and up to full loss and reinstatement of 47A, 47B, 51 and 45 Drumalbyn Road, the driveway servicing 47A, 47B and 47C Drumalbyn Road and the retaining walls.
On 14 August 2017, DA 378/2017 was lodged, being the development application the subject of these proceedings currently before me (Third DA).
On 5 September 2017, the Second DA was withdrawn.
Council advertised the Third DA for a period of 14 days between 6 September 2017 and 20 September 2017 and that notification resulted in 5 objections.
On 25 September 2017, Mr Gazal by his consultant town planner Mr Tony Moody, submitted an objection to Council in respect of the Third DA which included a copy of an arborist report prepared by Catriona Mackenzie dated 15 August 2017. This objection set out in detail the potential for adverse impacts on the cypress hedge and also the common driveway as a result of the proposed development set out in the Third DA.
The Third DA was also referred to the Council's Tree and Landscape Officer for comment regarding the potential impact of shadow and pruning on the cypress hedge. In his report dated 21 November 2017 that was written following a site inspection on 9 October 2017, the officer referred to the arborist report provided by Mr Gazal, dated 24 March 2017. In that report the officer states that he considers the issue of solar access to be adequately addressed, however does raise concerns about the extent of pruning proposed by the applicant and believes it to be underestimated. He goes on to recommend pruning specifications be prepared to reflect the proposal set out in the Third DA.
The affidavit of Anothony Boskovitz sworn on 14 December 2017 exhibited correspondence between the solicitors for the Applicant and the solicitors for the Council confirming that any conditions of consent for the development proposed by the Third DA will require a dilapidation report to be prepared for 47B Drumalbyn Road and such the shared driveway. The affidavit of Ronald Nathan Shulkin, sworn on 14 December 2017, who is a director of the Applicant attests that the Applicant will accept such a condition of consent.
On 5 December 2017, the Third DA was formally refused by the Council under delegated authority.
[4]
The statutory power to order joinder
The Court has power to make an order for joinder pursuant to s 39A of the Land and Environment Court Act 1979 ('Court Act'). Section 39A states:
"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."
At the hearing of this Motion, Mr Gazal submitted that he be joined to the proceedings on three bases, being that:
he is able to raise an issue that would not be adequately dealt with if I do not to make an order for joinder;
it is in the interests of justice; and
it is in the public interest.
It is well established that the exercise of the power pursuant to s 39A of the Court Act involves two steps. The first step is that the Court is satisfied that one of the three limbs listed above has been satisfied. The second step is whether, in all of the circumstances, the Court is satisfied that it ought to exercise its discretion to order a joinder.
I now turn to the first step
[5]
Has Mr Gazal identified an issue that ought to be raised in the proceedings that would not be adequately dealt with if I do not to make an order for joinder?
[6]
Mr Gazal's proposed contentions
Mr Gazal relies on the affidavit of Alistair Gregory McKeough, sworn 8 December 2017, which was read without objection on 8 December 2017. At Annexure A of that affidavit Mr Gazal provides a draft Statement of Facts and Contentions which he proposes to file and serve if his application for joinder is successful. The contentions he would raise are as follows:
1. The proposal should be refused as the proximity of the proposal to the common boundary with 47B Drumalbyn Road, Bellevue Hill does not provide for adequate solar access to the cypress hedge. (This will result in an unacceptable impact on the function, health and vitality of the hedge. The hedge provides amenity benefits to Mr Gazals' swimming pool and private recreation areas);
2. The excessive height, bulk and scale of the proposal is incompatible with the adjoining locality; in particular the height and setbacks if the proposed rear wall are likely to impact adversely upon Mr Gazal's property if the cypress hedge and or the Port Jackson fig fails; and
3. The proposed excavation, the volume being significantly in excess of what was approved in the existing 2015 Consent DA 53/2015/1 as amended by DA53/2015/2 (or as proposed and assessed by DA577/2016/1, is inconsistent with the prevailing character of the area), may damage the adjoining steep driveway, Mr Gazal's sole access and so affect Mr Gazal's ability to access his property at all.
These contention are proposed to be supported by the expert evidence of Ms Catriona Mackenzie, arborist, a town planner and (in the absence of a satisfactory insurance condition) an engineer.
I will now address each of Mr Gazal's proposed contentions.
[7]
Proposed Contention 1 - solar access to the Cypress Hedge
Counsel for Mr Gazal submitted that although the Council raises unacceptable visual privacy impacts upon adjoining properties, 45, 47A, 47B and 51 Drumalbyn Road in its Statement of Facts and Contentions, the particulars are limited to the windows in the side and rear elevations and lines of sight to sensitive areas of the adjoining properties.
Mr Gazal's counsel also submits that the contention in respect of insufficient information for trees and landscaping is limited to Council's concerns in respect of pruning, specifically regarding an underestimation of building clearance for the cypress hedge.
As such, there is no specific contention raised about the effect of the proximity of the proposed rear boundary to the cypress hedge or the failure of the proposal to provide solar access to the cypress hedge so as to ensure it maintains its vigour (particularly at the lower portions) so as to protect the amenity of Mr Gazal's pool and private recreation areas.
[8]
Proposed Contention 2 - Excessive height, bulk and scale of the proposal
Mr Gazal also proposes to raise a contention that the height, bulk and scale of the proposal are incompatible with the adjoining locality, in particular the height and setbacks of the proposed rear wall, such that the proximity of the vertical wall height will impact adversely upon Mr Gazal's property and the surrounding locality if the cypress hedge fails.
The Applicant's tree expert Mr George Palmer claims in his report dated May 2017 that the cypress hedge is in a cycle of decline. Mr Gazal submits that if Mr Palmer's evidence is the only expert evidence in respect of the health of the trees, then the Court would likely conclude that is only a matter of time before the cypress hedge inevitably fails and a major portion of the rear vertical rear wall will be visible in the surrounding locality.
[9]
Proposed Contention 3 - Excavation
The third contention the applicant seeks to raise is the contention relating to excavation and potential damage the proposed basement car park could have on the common driveway which provides Mr Gazal with the only means of access to his property.
It was put forward that this was originally proposed to be resolved in the First and Second DA with dilapidation reports to be prepared, with the Second DA deferred by Council in respect to adequate insurance.
[10]
Council's contentions
Although Council has adopted a neutral position in respect of this Notice of Motion, the difference between the Council's contentions and the evidence proposed to be led by Mr Gazal is required to be considered as part of the first test under s 39A of the Court Act.
The Council's Statement of Facts and Contentions state (amongst other contentions) that the DA should be refused on the basis that it:
1. will result in unacceptable visual privacy impacts to adjoining properties; and
2. is not in the public interest.
In respect of public interest, Council contends that "[t]he DA should be refused having regard to the matters set out in the submissions that have been received by Council to the extent that such submissions are consistent with the contentions…".
Paragraph 21 of the Council's Statement of Facts and Contentions states:
"The objections raised the following concerns:
(a) the proposal should be assessed against Council's controls;
(b) the subject application does not incorporate the deferral related requirements of Council's Development Control Committee in relation to the previous development application DA577/2016;
(c) excessive excavation and associated geotechnical concerns;
(d) inadequate geotechnical report;
(e) inadequate boundary setbacks;
(f) there is no common open space provided at the rear of the site and the front section of the site is unlikely to be utilised as a common open space area;
(g) excessive building footprint;
(h) excessive bulk and scale;
(i) tree impacts and the absence of adequate construction methodology statements;
(j) overshadowing;
(k) loss of privacy;
(I) excessive floor space ratio;
(m) inadequate car parking provision on-site;
(n) the deep soil landscaped area has been reduced and is inadequate;
(o) inadequate statement of environmental effects; and
(p) the proposal is inconsistent with the character of the area."
The Council's Statement of Facts and Contentions also asserts that there is insufficient information to assess the application with regards to trees and landscaping particularly in relation to the cypress hedge located at 47B Drumalbyn Road.
[11]
Applicant's submissions
In respect of Mr Gazal's proposed contentions, Counsel for the applicant submits that Mr Gazal has not established that he is able to raise an issue that should be considered, or that any issue he has identified is not likely to be sufficiently addressed if he is not joined.
Counsel for the Applicant also contends that the contentions proposed to be raised by Mr Gazal have already been raised by the Council in its Statement of Facts and Contentions. Counsel for the Applicant further submits that the specific issues proposed to be raised by Mr Gazal have already been raised by Mr Gazal (and other objectors to the DA) through the DA process and Mr Gazal's Senior Counsel will have the opportunity to make submissions on those issues at the s 34 conciliation conference.
[12]
Findings for first test
In respect of Mr Gazal's proposed contentions, I am not satisfied that the issues proposed to be raised by Mr Gazal would not be likely to be sufficiently addressed if Mr Gazal were not joined as a party to the proceedings. Each of these issues has been raised with the Council, are discussed in the Council officer's reports and are addressed in the submissions of Mr Gazal to the Council by the experts he has engaged. In fact, the report prepared for Mr Gazal and provided to Council in respect of the cypress hedge is explicitly referred to in Council's Statement of Facts and Contentions at Contention 7.
As stated by Preston CJ in his decision of Morrison Design Partnership Pty Limited v North Sydney Council & Anor [2007] NSWLEC 802 at [45] to [46], these Council reports, submissions and expert reports are all contained in the Council documents. It is well established that such material would be provided to the Court on any appeal and would be considered by the Court in determining the appeal. The current parties have also agreed to Mr Gazal's Senior Counsel attending the forthcoming s 34 conciliation conference and addressing each of the issues about which Mr Gazal is concerned and which he is proposing to agitate on the appeal.
As such, the issues proposed to be raised by Mr Gazal will be addressed at the forthcoming s 34 conciliation conference.
If the matter then proceeds to a hearing, Mr Gazal and his experts may be called by the Council at that hearing. This would be so even if the hearing becomes a consent order hearing. It is the practice of the Court, as set out in the Practice Note Class 1 - Development Appeals, that during a consent order hearing, the consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. The consent authority is required to demonstrate that it has given reasonable notice to all persons who objected to the proposed development and advise them that they will have an opportunity to be heard before the Court.
In light of this, I find that this first test has not been satisfied.
[13]
Is it in the interests of justice for Mr Gazal to be joined to the proceedings?
Mr Gazal also relies upon the second test for joinder, being it is in the interests of justice for him to be joined to the proceedings in circumstances where any decision in relation to the rear boundary will have a direct impact on his use and enjoyment of his site.
Counsel for Mr Gazal submits that, this test is satisfied on a number bases. Firstly, being that Council's 2015 Development Assessment Report for the First DA states that "[t]he proposed removal of the majority of the existing landscaped area/landscaping at the rear of the site is not considered to be significant in terms of impacting upon the amenity of surrounding properties due to... the maintenance of the substantial existing trees adjacent to the rear boundary (a row of 7-8m high Leighton Green pine trees on the adjoining property to the - 47B Drumalbyn Road)."
As such Mr Gazal's counsel contends that Council is relying on Mr Gazal to maintain the cypress hedge, whilst not requiring the Applicant to amend the development to so as to provide solar access to the entire length of the hedge.
It is also submitted that Mr Gazal's use and enjoyment of his driveway may be directly impacted by the proposal. In respect of this point, the applicant for joinder relies on the decision of Lloyd J in Pro-Vison Development Pty Ltd v Ku-ring-gai Municipal Council (2003) 131 LGERA 108 at paragraphs [24]-[25], which involved the redevelopment of two battleaxe blocks in a subdivision. In that case, all the lots in the subdivision had access to the public road via a shared driveway. Each lot in the subdivision owned a section of the driveway and had a right of way over the whole driveway. In that instance the Court had the power to vary the terms of the right of way and, accordingly, the property rights of the other lots in the subdivision. As such it was considered appropriate to join those affected owners to the proceedings.
That case can be clearly distinguished from the present proceedings before me as there is no suggestion that the development proposed to be undertaken by the Applicant will impact the ownership of the shared driveway.
Again relying on Preston CJ's observations in Morrison Design Partnership Pty Limited v North Sydney Council [at [48]-[54], Counsel for the Applicant submitted that it is not necessary to join Mr Gazal to the proceedings as Mr Gazal has already been given numerous, meaningful opportunities to be heard through the process of public consultation and consideration by the Council of the DA on these exact points.
I find that Mr Gazal has been afforded a number of opportunities to put his views to the Council, including those views set out in the paragraphs above and in his proposed Statement of Facts and Contentions. As an objector, Mr Gazal will also be afforded the opportunity to put those views before the Commissioner as part of the s 34 conciliation conference and to the Court if the matter proceeds to hearing.
As such, I do not consider it in the interests of justice to join Mr Gazal to these proceedings so he can continue to make those objections.
[14]
Is it in the interests of justice for Mr Gazal to be joined to the proceedings?
Counsel for Mr Gazal also submits that it is in the public interest that he be joined given the amenity benefit that the cypress hedge provides to neighbouring properties in terms of softening the impact of the rear vertical wall of the proposal
In support of this submission, Mr Gazal's counsel relies on Council's 2015 Development Assessment Report for the First DA, which states:
"In terms of visual impacts upon adjoining properties, it is considered that the only aspect of the proposal with the potential for significant adverse visual impacts upon adjoining properties is the proposed rear addition..."
"The proposed removal of the majority of the existing landscaped area/landscaping at the rear of the site is not considered to be significant in terms of impacting upon the amenity of surrounding properties due to... the maintenance of the substantial existing trees adjacent to the rear boundary (a row of 7-8m high Leighton Green pine trees on the adjoining property to the - 47B Drumalbyn Road)...
As such... the proposal will not significantly detract from contribution of the existing site to the landscaped setting of the locality."
It was also submitted that it is in the public interest that Mr Gazal be joined to ensure either adequate insurance cover for the driveway to protect his and his neighbours' use of the driveway, or to ensure that the volume of excavation permitted does not lead to subsidence and damage to the driveway or neighbouring properties.
As I have said above, these are issues that have already been adequately canvassed by Mr Gazal throughout the course of the Council's consideration of the First, Second and Third DAs for the Site. These issues will continue to be addresses in the conciliation conference and at any hearing, by consideration of the Council documents that will inevitably tendered and by the practice of this Court to which I have already referred.
For all these reasons the test for joinder fails.
[15]
Is a Double Bay Marina order is appropriate?
As I have determined that it is not appropriate for an order for joinder to be made, I am required to consider a final question concerning whether it is appropriate for an order to be made pursuant to s 38(2) of the Court Act, allowing Mr Gazal to participate in the proceedings in some limited manner.
The effect of such an order would be as described by Pain J in Kavia Holdings Pty Limited (at [7]), that Mr Gazal would be permitted "to adduce evidence and participate in the proceedings but not be eligible to participate as a full party to the proceedings". Justice Pain noted that there was still power to make such an order, notwithstanding the amendment of the Court Act by the insertion of s 39A. Jagot J noted in Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 in relation to s 38(2) at [5]:
"While s 38(2) is not similarly constrained, the types of consideration that are set out in s 39A no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order."
I am not satisfied that there are any issues in these proceedings that are not likely to be sufficiently addressed in the absence of some special order being made for Mr Gazal's involvement in the proceedings.
In these circumstances, I am not satisfied that it is appropriate to make an order under s 38(2) of the Court Act.
[16]
Conclusion
For the above reasons, this is a not a proper case to order the joinder of Mr Gazal as a party to the proceedings or to make an order under s 38(2) of the Court Act.
[17]
Orders:
The notice of motion of Mr Gazal dated 8 December 2017 is dismissed.
Sarah Froh
Registrar of the Land and Environment Court of NSW
[18]
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: 22 February 2018