S & M Constructions Australia Pty Ltd v City of Sydney Council

Land and Environment Court (NSW)|2018-04-11

Judgment

Owners Corporation SP 70974 ('Owners Corporation'), by Notice of Motion filed 4 April 2018, seek to be joined as a respondent to Class 1 proceedings commenced by S&M Constructions Australia Pty Limited in respect of the deemed refusal of City of Sydney Council ('Council') to a development application for 45 Cooper Street, Surry Hills ('Proposed Development Site'), for the demolition of a terrace house and the construction of a seven storey mixed use building with ground floor retail and three apartments and a communal roof terrace ('the DA').
The Motion is opposed by the Applicant in the substantive proceedings, and the Council neither consents to nor opposes the Motion.
I dismiss the Motion for the following reasons.

Background

The substantive proceedings relate to the Council's deemed refusal of the Applicant's DA. The Owners Corporation represents the owners of 47 Cooper Street, Surry Hills, being the development next door to the Proposed Development Site.
The DA was lodged with Council on 11 September 2017. The DA was notified for a period of 21 days from 14 September 2017 to 6 October 2017.
45 submissions were received by the Council raising the following concerns: 1. Bulk and scale 2. Inadequate building separation 3. Character and heritage 4. Solar access and daylight 5. Visual and accoustic privacy 6. Waste and odours 7. Construction impacts 8. Loss of views/outlook 9. Loss of property values 10. Fire safety 11. Parking 12. Tree loss

The statutory power to order joinder

The Court has power to make an order for joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 ('EPA Act'). Section 8.15(2) states: "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."
At the hearing of this Motion, the Owners Corporation submitted that it be joined under part 8.15(2)(a) only, being that it is able to raise an issue that would not be adequately dealt with if I do not to make an order for joinder.

Has the Owner Corporation identified an issue that ought to be raised in the proceedings that would not be adequately dealt with if I do not make an order for joinder?

Owners Corporation's evidence and submission

It was submitted that if the Owners Corporation's application for joinder were successful, the contentions it would raise can be summarised as follows: 1. Fire egress from 47 Cooper Street; 2. Loss of view and outlook; 3. Overshadowing of Unit 509 of 47 Cooper Street; and 4. Insufficient and inaccurate information in relation to the shadow information and solar access table.
These proposed contentions were detailed in a draft Statement of Facts and Contentions annexed to the affidavit of Roslyn Mary McCulloch sworn on 4 April 2018 and read without objection at the hearing of this motion.

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 the Owners Corporation is required to be considered.
The Council's Statement of Facts and Contentions state that the DA should be refused on the basis of the following: 1. solar and daylight access and overshadowing; 2. setbacks; 3. access to roof terrace; 4. design details; and 5. approval would not be in the public interest
Council has particularised each of these contentions in a substantial amount of detail.

Fire Egress from 47 Cooper Street
Currently, the means of fire egress from 47 Cooper Street is via two sets of fire stairs which open onto a passageway to the west of 47 Cooper Street and is partly located on 45 Cooper Street.
In considering this issue, it is important to note that there is a separate issue between the Owners Corporation and the Applicant regarding the nature of the property right that each party has in respect of the passageway currently used by 47 Cooper Street for fire egress.
The nature of that property right and whether or not an easement exists for the benefit of 47 Cooper Street over the passageway is neither the subject of this Motion, nor capable of resolution by these substantive proceedings.
It was submitted by the solicitor for the Owners Corporation that the DA does not make provision for the continuation of the existing means of fire egress from 47 Cooper Street.
However, this was disputed by Counsel for the Applicant annd the plans lodged with the Class 1 Application show that the passageway currently used for fire egress by 45 Cooper Street continues to be provided. This submission was further supported by the Statement of Environmental Effects prepared by dfp planning consultants and dated September 2017 which states at page 15 that "The proposed mixed use development allows for fire egress from 47 - 53 Cooper Street via the ground floor walkway". The Demolition Management Report prepared by CAM Consulting and dated July 2017 also sets out a program of works making provision for the fire exits used by 47 Cooper Street and for that work to be carried out and in place prior to demolition, excavation and construction being carried out on the Proposed Development Site.
In correspondence between Council and the solicitor for the Owners Corporation, Council states it does not propose to raise fire safety egress from 47 Cooper Street onto 45 Cooper Street as a contention. However, I note that the Council's Statement of Facts and Contentions states that "…in consideration of the submissions received by Council, approval to the development would not be in the public interest…" and, the submissions received by Council included concerns about fire safety (paragraph 28 of the Council's Statement of Facts and Contentions), so this remains an issue before the Court in these proceedings.

Loss of view and outlook
The Owners Corporation made a comprehensive submission to Council via letter from its managing agent dated 6 October 2017 which was annexed to the affidavit of Ms Corinne Schwartz sworn on 3 April 2018 and read without objection at the hearing of this Motion. That letter attached a submission from Chris Elliot Architects dated 3 October 2017. The loss of view and outlook is addressed in Mr Elliot's submission and shown in the photomontages attached to that submission and shows some units outlook being obscured to varying degrees by the proposed development on 47 Cooper Street.
In considering this issue, it is important to note that there is a positive covenant in favour of the Council regarding the requirement to block the West facing windows in some units at 47 Cooper Street.
Regardless of how that issue is ultimately resolved between the Owners Corporation and the Council, the Council's Statement of Facts and Contentions states that "…in consideration of the submissions received by Council, approval to the development would not be in the public interest…". As the submissions received by Council included concerns about view loss and outlook (paragraph 28 of the Council's Statement of Facts and Contentions), this issue is before the Court.

Overshadowing of Unit 509 of 47 Cooper Street
At the hearing of this motion, the solicitor for the Council clarified that unit 509 was one of the three affected units within 47 Cooper Street identified by Council as being adversely impacted by overshadowing caused by the proposed development.
As this contention is explicitly raised in the Council's Statement of Facts and Contentions, this issue will be before the Court.

Insufficient and inaccurate information in relation to the shadow information and solar access table.
The submission from Chris Elliot Architects dated 3 October 2017 includes a review of the solar access information provided with the Applicant's DA. Issues were raised during the hearing of this motion as to the accuracy of the Owners Corporation's and the Applicant's shadow and solar access information.
I do not make any findings in that regard, but rather note that regardless of its accuracy, the issue of solar access and overshadowing are clearly raised in Council's Statement of Facts and Contentions and so issues as to this will be before the Court.

Findings

With respect to the Owners Corporation's proposed contentions, I find that those contentions are all raised within the Council's Statement of Facts and Contentions and support the conclusion that the issues sought to be raised by the Owners Corporation are likely to be sufficiently addressed even if the Owners Corporation is not to be joined as a party.
In coming to my decision, I am assisted by the decision of Preston CJ in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802 at [44] to [47] where he found in that case that: "…[E]ach of these issues has been raised repeatedly before the Council, are discussed in the Council officer's reports, and are addressed in the submissions of the Owners Corporation and in the reports of the experts engaged by the Owners Corporation... These Council reports, submissions and expert reports are all contained in the Council documents. 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, Morrison Design Partnership, North Sydney Council and the Director-General of Planning, have agreed to representatives of the Owners Corporation and its experts attending the forthcoming s 34 conciliation conference and addressing each of the issues about which the Owners Corporation is concerned and which it wishes to agitate on the appeal. Accordingly, the issues will be addressed at the forthcoming s 34 conciliation conference. If the matter proceeds to a hearing, representatives of the Owners Corporation and their experts may also 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 on 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 will have an opportunity to be heard before the Court."
Accordingly, I find that the test for joinder fails.

Orders

The Court orders that: 1. The notice of motion of the Owners Corporation - Strata Plan 70974 dated 4 April 2018 is dismissed.

Sarah Froh Registrar of the Land and Environment Court of NSW

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: 26 April 2018

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Judgment (13 paragraphs)

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