Stevens Holdings Pty Limited trading as Stevens Group v Newcastle City Council

Land and Environment Court (NSW)|2020-03-20|Before: Annexure J

Judgment

COMMISSIONER: By Notice of Motion dated 6 March 2020, the owner of 337 Black Hill Road, Black Hill, Broaden Management Pty Limited (Broaden Management) (the 'Intervener') seeks leave to be joined as a party to the Class 1 proceedings brought by Stevens Holdings Pty Limited, trading as Stevens Group (the Applicant) against Newcastle City Council's deemed refusal of Development Application No. DA 2018/714 for a 200 lot Torrens title subdivision at 198 Lenaghans Drive, Black Hill (the Stevens Site).
The Broaden Management site and the proposed development are adjoining properties located on John Renshaw Drive, and together, comprise the Black Hill Emerging Precinct.
As John Renshaw Drive is a declared Controlled Access Road, the Roads and Maritime Services (RMS) were joined to the proceedings, pursuant to s 64 of the Land and Environment Court Act 1979 (LEC Act), as the Second Respondent.
This motion is supported by the affidavit of Ms Alyce Edith Kliese, sworn on 6 March 2020 (the Affidavit), who is an employed solicitor of Mr Christopher Shaw, of Shaw Reynolds Lawyers on behalf of Broaden Management. The Notice of Motion seeks that the Intervener be joined in the proceedings as the Third Respondent pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Intervener proposes to raise the following contentions, set out in Annexure J of the Affidavit: 1. The Court has no jurisdiction to approve the development application because the proposed plan does not include an intersection at the western access to the site on John Renshaw Drive as required by condition 1.16 of the Concept Approval MP_0093. 2. In the alternative to contention 1, if the Court does have jurisdiction to approve the development application, there is an inability of traffic to utilise the Broaden Site in a manner consistent with what was approved in the Concept Approval MP10_0093, and in such circumstances the development application ought to be refused. 3. In the alternative to contention 1, if the Court does have jurisdiction to approve the development application, the inaccessibility and inefficiency of traffic on the Broaden Site is such that the development application ought to be refused. 4. In the alternative to contention 1, if the Court does have jurisdiction to approve the development application, the inconsistency between the accessibility and efficiency of traffic on the Broaden Site as proposed under Condition 1.16 is such that the development application ought to be refused.

Jurisdiction to consider the Joinder

Mr Galasso submits that the Court cannot entertain the Application for Joinder as the phrasing of the provision at s 8.15(2) is prospective, with the intent of providing for parties to be joined in, and not after, proceedings.
In this matter, the Intervener has been aware of the proceedings throughout, had made representations at the s34 conference between the parties on 2 July 2019, and having a legal representative observe and summarise the proceedings on 12 and 13 February 2020 (Affidavit, Folio 98-114) and on 3 March 2020 (Affidavit, Folio 115-123) and on which the Court is now reserved.
To order the Joinder after the close of proceedings would be to re-open the matter after the parties have engaged in conciliation conference in accordance with s34 of the LEC Act, identified agreed contentions and engaged relevant experts who have conferred and prepared joint expert reports, which have been the subject of examination and cross examination.
In the alternative, Mr Leggat, submits to me that the words 'at any time', which are found in s 8.15(2) mean what they say, and so permit an Application for Joinder at any time in proceedings before the Court, including where, as in this matter, the Court has reserved judgment.
Furthermore, the Intervener could only reach a view on the matters at [5(1)] upon the conclusion of closing submissions, which were heard on 3 March 2020. A conference with its legal representatives was held the following day, and an Application for Joinder was lodged with the Court on 6 March 2020. The timing of the Intervener's actions were therefore expeditious.
I accept the Intervener's submission that a plain reading of s 8.15(2) provides for Joinder at any time in proceedings that are before the Court. For that reason, it is my view that there is nothing to prevent the Court from considering the Application for Joinder.
That said, while the tests set out in subss (2)(a) and (b) are not time-bound, any consideration of the Application once the Court has reserved judgment does not ask me to anticipate the likely content of proceedings in futurity, but rather with the benefit of submissions and expert evidence brought on during proceedings.

Jurisdiction to approve an application contrary to Concept Plan Approval

According to the Intervener, as the signalised intersection in the development application for the Stevens Site is not in the location shown on the Concept Plan Approval (Affidavit, Folio 29), it cannot be considered to be generally consistent with Condition 1.16 of the Concept Plan Approval.
Condition 1.16 is in the following terms: "The first subdivision application for the site must include detailed design for a signal controlled intersection at the western access to the site on John Renshaw Drive that has been prepared in accordance with RMS requirements."
According to Mr Leggat, the wording of Condition 1.16 requires that the first subdivision application for the site must include a number of things that are prescribed. As those prescribed things have not been included in the application, the Court's power to grant consent is not enlivened.
The Intervener accepts that some aspects of the Concept Plan Approval were the subject of proceedings, such as whether or not the location of the intersection is acceptable or preferred, and whether the design of the intersection could be described as 'detailed'. However, the Intervener maintains that parties did not sufficiently address the jurisdictional power of the Court in relation to Condition 1.16 and that is a matter that needs to be ventilated.
According to the Intervener this is because Condition 1.16 is a pre-condition to the exercise of power on which the Court is required to form an opinion of satisfaction. In order to arrive at a state of satisfaction the Court must take certain steps and reach a certain degree of satisfaction as shown in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 (Al Maha) at [18], and this requires first checking that the Court has jurisdiction to hear and dispose of the particular proceedings (Al Maha at [73]).
The Intervener submits that the Court cannot reach the required state of satisfaction, nor provide adequate reasons, in the absence of detailed submissions on the issue raised at [5(1)] and which the Intervener will prepare in order to act as an 'effective contradictor' in the event that the Application of Joinder is successful.
In particular, the Intervener considers the state of satisfaction required for the exercise of power in cl 4.6 to be in identical terms as at cl 3B(2)(d) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (Transitional Regulation) for which a proper construction is required and is yet to be put.
In the alternative, the Applicant argues that the location of the signalised intersection was sufficiently addressed in the proceedings, as was its design and the requirements of RMS even though the precise position of the intersection is not an express object in the wording of Condition 1.16.
In particular, Mr Galasso relies upon: 1. The Statement of Facts and Contentions prepared by both the First and Second Respondents which specifically refer as a matter of contention to the relocation of the signalised intersection from its position at the time of Concept Plan Approval along with detailed particulars as to its relocation; and 2. Mr Galasso's submissions addressed the matter of 'general consistency' by reference to cl 3B(2)(d), Condition 1.5, and Condition 1.16; and 3. Council's traffic expert, Mr Nathwani directly addressed the relocation of the intersection in his oral evidence, including his support for the new location based on a report prepared by Northrop Engineering; and 4. Counsel for the RMS, as the Second Respondent, addressed Condition 1.16 in opening submissions, and in written submissions at [97]-[108], with specific reference to the relocation of the intersection at [106].

Evidence is insufficient to consider impacts on adjoining land

In the alternative to Contention 1, the Intervener submits that evidence yet to be submitted to the Court would support the following grounds on which the application ought to be refused: 1. Firstly, the inability of traffic to utilise the Broaden Site. 2. Secondly, the inaccessibility and inefficiency of traffic on the Broaden Site. 3. Thirdly, the extent of inconsistency between the accessibility and efficiency of traffic on the Broaden Site as proposed under Condition 1.16.
Mr Leggat contends that the evidence of the traffic engineers contains flaws, and proposes to call evidence from the Intervener's traffic expert, Mr Rhys Hazell from GTA Consultants who believes that the Court has not been provided with evidence necessary to understand traffic impacts from the Broaden Site and Stevens Site, because: 1. An incorrect rate has been applied to calculate background growth in traffic. 2. The Stevens Site layout will not accommodate the combined traffic from the Broaden Site and Stevens Site. 3. SIDRA modelling is inconsistent with Intersection plans prepared by Northrop Engineers. 4. An incorrect or arbitrary trip-generation figure has been used for the Stevens Site. 5. Late adjustments to key modelling inputs are a concern, in particular for the John Renshaw Drive duplication, heavy vehicle proportions and trip-generation rates.
The concerns attributed to Mr Hazell impact not only the development the subject of the development application, but the wider locality as well, according to Mr Leggat, which is a relevant consideration under s 4.15 of the EPA Act and not dissimilar to the matters considered in Bay Simmer Investments Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135 where, at [48], it was contended that no assessment of construction-related impacts had been considered.
The Intervener submits that the Applicant in the proceedings would lead the Court into error in asserting that consideration of the Broaden Site has nothing to do with the application before the Court as the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are a relevant consideration under s 4.15(1)(b) of the EPA Act.

Consideration

Section 8.15(2) the EPA 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.
This section gives the Court power to join a person on the following grounds. Firstly, if the person is able to raise an issue that should be considered in relation to the appeal which would not likely be sufficiently addressed if the person were not joined as a party (s 8.15(2)(a)). Secondly if it is in the interests of justice or it is in the public interest that the person be joined as a party to the appeal (s 8.15(2)(b)).
In essence, the Intervener submits that while the relocation of the intersection has been ventilated, the jurisdictional aspects of the relocation as a condition of the Concept Plan Approval have not been sufficiently addressed in the proceedings on which the Court is now reserved.
As stated at [16], the Application for Joinder is somewhat unusual in that the proceedings are concluded, and so the Court has had the benefit of submissions from parties, and expert evidence has been adduced.
In the proceedings, the parties addressed the Court on a proper approach to the evaluation of the application the subject of the appeal. These submissions may be summarised, broadly, as follows: 1. Firstly, the evaluation of the development application required to be undertaken following the Concept Approval, specifically whether the provisions of s 4.15 of the EPA Act apply. 2. If so, according to the Second Respondent, supported by the Frist Respondent, the Court must undertake a merit assessment in accordance with schedule 2, Condition 1.15 and 1.16, and Part 4 of the EPA Act, including the provisions of s 4.15. 3. In the alternative, the Applicant submits that the Court must have regard to the legislative regime when construing the development consent and such an exercise effectively limits the construction of the Part 4 development consent and the extent of environmental assessment to be undertaken (Applicant written submissions para 2). Put simply, the primary role for the Court is to consider whether the application is generally consistent with the Concept Plan Approval by reference to the Conditions of the Concept Plan Approval, including Condition 1.16.
The wording of Contention 1 proposed by the Intervener at [5(1)] is, relevantly, that "the proposed plan does not include an intersection at the western access to the site…as required by Condition 1.16…".
Condition 1.16 requires the western access to the site on John Renshaw Drive be the object, at the first subdivision application, of a detailed design that is prepared in accordance with RMS requirements (my emphasis).
The application before the Court clearly does include an intersection at the western access to the site, about which much was said in the proceedings. Whether or not that intersection can be said, firstly, to be detailed in its design, and secondly to conform to the requirements of the RMS was the subject of the submissions and expert evidence, and is a matter for the Court to determine in the proceedings to which the Intervener seeks to be joined.
To the extent that the Intervener submits the relocation of the intersection at the western access to the site is pertinent, the relocation from its position at Concept Plan Approval was the subject of submissions and expert evidence. Mr Nathwani addressed the matter (Transcript, 13/02/20, p30, and 39). Mr Rogers addressed the separation of intersections (Transcript, 13/02/20, pp30-31).
During the proceedings, Mr Galasso sought to adduce evidence from Mr Krjlic on how the Court should arrive at a determination on the location of the intersection on two occasions (Transcript 13/02/20, p41, 42). Mr Krjlic addresses the location (Transcript 13/02/20, p44), and considered the sequence with which an Applicant would commonly approach Condition 1.15, and Condition 1.16 (Transcript 13/02/20, p36).
The Second Respondent addressed the matter of detailed design at [99]-[105] of its written submissions, and in oral submissions (Transcript 12/02/2020, p47). The Applicant addressed the same in oral submissions (Transcript 12/02/2020, pp3 and 60) and in relying upon drawing C6.11 and C6.12.
The experts considered the matter of detailed design at some length (Transcript, 13/02/20 at pp34-40).
Evidence as to RMS requirements is found in the parties' submissions which, in essence, address those matters contained in Condition 1.15 of the Concept Plan approval. In particular, the Applicant addressed the same at [50], and [55]-[73] of its written submissions.
That said, to the extent that the Intervener submits that the relocation of the intersection in the application before the Court, when compared with the Concept Plan Approval, is inconsistent with the provisions of Condition 1.16, this too was addressed by the parties.
Whether or not the relocation of the western access is consistent with the Concept Plan approval was addressed by the Second Respondent, firstly in the Statement of Facts and Contentions, marked Exhibit 7 in the proceedings, in the following terms at Contention 2, and in written submissions at [106].
The Applicant addressed the same in written submissions at [30]-[32], [34]-[36], and at [42], and in oral submissions (Transcript, 12/02/2020 at pp 57, 58, 59 and 65, and Transcript 03/03/20 at pp9, 11, 13 and 43) including reference to s 75P(1)(b) under Part 3A of the EPA Act, and cl 3B(2)(d) of Schedule 2 of the Transitional Regulation.
The First Respondent also addressed the question of consistency with the Concept Plan Approval (Transcript, 03/03/20 at p26).
Additionally, the evidence of the traffic experts is found in Exhibit 6 of the proceedings and states, at p1 "The majority of traffic matters raised in the SOFC's relate to whether Condition 1.15 and Condition 1.16 of the 2013 Concept Approval for the site have been satisfied."
While the Intervener submits that the court should be addressed on the proper construction of Condition 1.16, in my view this is subordinate to the superior question contested in the proceedings to date. That is, the proper approach to a Part 3A approval and the relevant application of Part 4 of the EPA Act from which may flow an answer to the question put by the Intervener.
According to the Applicant in the proceedings, s 75P of the EPA Act sets out the mechanisms for approval of a project the subject of a Concept Plan and any assessment of the application before the Court should be in accordance with the provisions of subcl 3B(2)(d) of Schedule 2 of the Transitional Regulation, which at [25], precludes a consent authority from granting consent under Part 4 unless it is satisfied that the development is generally consistent with the terms of the approval of the concept plan.
Furthermore, any further environmental assessment under Part 4 of the EPA Act is to be undertaken in accordance with the requirements, and so be subject to, the terms of the Concept Plan Approval set out in Schedule 2, Part D, in which certain Conditions are contained.
In the alternative, the Second Respondent in the proceedings submits that the Planning Assessment Commission, as the Minister's delegate, did not grant approval to the Concept Plan without need for further assessment or reporting, as it could have in accordance with s 75P(1)(c).
Instead, the Concept Plan Approval expressly requires "further environmental assessment" pursuant to s 75P(2)(c) which refers to the matters set out in Condition 1.15 and 1.16 of Schedule 2 of the Concept Approval (Exhibit 5, Folio 119) which are imposed alongside, and not in substitution of, the requirements in Part 4 of the EPA Act, including those found at s 4.15.
With particular reference to Condition 1.16, Mr Galasso submits, and I accept, that the condition takes the form of a composite phrase. A plain reading of the Condition suggests the intersection providing the western access should be the object of a detailed design that is prepared in accordance with RMS requirements (my emphasis).
As Condition 1.16 is so worded, I do not consider the location of the western access to be a jurisdictional matter that stands alone or apart from the broader matters of construction on which the Court has been sufficiently addressed. As the Court has been addressed on the proper approach to the matters in dispute, I am satisfied that the Court has been sufficiently addressed on those matters on which the dispute may turn.
Additionally, s 8.15(2)(a) provides, relevantly, that the Court may order the joinder of a person as a party to the appeal if the Court is of the opinion that the issue proposed to be raised should be considered in relation to the appeal (my emphasis). For the reasons stated above, I am unable to form the opinion that the matters sought to be raised by the Intervener should be considered in the appeal.
Next and in relation to the Intervener's submissions on Contention 2-4, the Court is asked to accept positions held by Mr Rhys Hazell that are said to be contained in Annexure G, Appendix D within Ms Kliese's Affidavit.
Appendix D is dated 21 February 2020 but is unsigned and is not attributed to an individual, but instead purports to be prepared by GTA Consultants.
That said, I consider the matters raised in Contentions 2-4 to have been sufficiently addressed for the reasons set out below. To the extent that the Intervener relies on those matters at [27(1)-(5)] to support Contentions 2-4, for the reasons set out below, I also consider that the Contentions themselves, as worded, have been sufficiently addressed: 1. A word search of the transcript of the proceedings reveals that the word 'Broaden', used as a proper noun, is referred to on around 149 occasions. 2. Broaden traffic is addressed by the experts in relation to the modelling of the signalised intersection, which is proposed to provide access to, and from the Broaden site (Transcript 12/02/20 at pp23, 26, 39, 65) (Transcript 13/02/20 at pp2, 12-16, 18, 21- 24, 30-31, 87, 99, 101, 142, 144). 3. The internal road network between the Stevens Site and the Broaden Site is addressed by the experts (Transcript 12/02/20 at p54)(Transcript 13/02/20 at pp3, 26- 29, 41, 111, 116, 142, 144). 4. The traffic forecast to be generated by the Broaden Site is addressed by the experts (Transcript 13/02/20 at pp10-11).
Mr Hazell is said to dispute the background growth rate which is agreed by the experts at 1.5% per annum, or 15% over ten years. I have no reason to question the agreement reached by the experts and I note the same background growth was applied in the Outer Newcastle Study, according to Mr Krjlic (Transcript 13/02/20 at p87).
In relation to the suggestion that the Stevens Site layout will not accommodate the combined traffic from the Broaden Site and Stevens Site, I note it is generally agreed between the experts, particularly Mr Nathwani and Mr Rogers, that adjustment to the lot layout contained in Exhibit G of the proceedings would permit vehicle access in the vicinity of the roundabout (Exhibit 6, pp14-16). This is supported by detailed swept path diagrams at Annexure D of Exhibit 6.
As to whether SIDRA modelling is inconsistent with Intersection plans, Mr Galasso submits that the inconsistency is acknowledged and resolved by the preparation of Exhibit K by Mr Rogers which provides for an additional lane.
The additional lane is agreed by Mr Krjlic to be required to accommodate traffic from the Broaden Site (Transcript, 13/02/20 at p24) and is said to assume full development of both the Broaden Site and Stevens Site (Transcript, 13/02/20 at p12), albeit with errors acknowledged by Mr Rogers at around 20% of vehicles turning (Transcript 13/02/20 at p32).
The Intervener also submits that Mr Hazell is concerned at the late adjustments to key modelling inputs, in particular for the John Renshaw Drive duplication, heavy vehicle proportions and trip-generation rates.
In relation to the proportion of heavy vehicles assumed, the experts are agreed (Transcript 13/02/20 at pp15-16), as they are also on the trip-generation rates to be applied (Exhibit, pp3-4) (Transcript 13/02/20 at p87). That position was noted by the Second Respondent (Transcript, 12/02/20 at p53) and where there is a difference of opinion, that difference is qualified by general on the overall results derived from those rates (Transcript 13/02/20 at p16).
In relation to Contentions 2-4, I have considered the evolution of the evidence during the proceedings and, in particular, the expert evidence outlined above. When considered together, I find the matters said to be raised by Mr Hazell to have been sufficiently addressed.
Relatedly, as the Intervener relies upon the concerns attributed to Mr Hazell as grounds on which the Court must consider the likely impacts of the development in the locality, I conclude that the Court has been sufficiently addressed on those matters for the reasons set out at [58]-[65], and by the submissions summarised at [48]-[52].
For the reasons stated at [54]-[55], I am unable to form the necessary opinion to order the joinder on the basis of Contention 1. For the reasons set out at [58]-[65], I am also unable to form the necessary opinion to order the joinder on the basis of Contentions 2-4.
However, notwithstanding this conclusion, I note that the provision at s 8.15(2) is worded that "the Court may, at any time…order the joinder of a person" and so the exercise of the Court's power is discretionary. Furthermore, a reason to order the joinder of a party may be, according to subs 8.15(2)(b)(ii), in the public interest.
That said, in considering whether the Court's discretion should be so exercised, it is relevant to have regard to the over-riding obligation to facilitate the "just, quick and cheap" resolution of the real issues in the proceedings (s 56 of the Civil Procedure Act 2005).
For the following reasons it is my view that the grounds on which the Application for Joinder is advanced were addressed at the close of proceedings on 13 February 2020, and so it was open to the Intervener to initiate the preparation of an Application for Joinder from this date, and not once the proceedings had concluded, as it so chose: 1. The Affidavit contains evidence, at Annexure I that the Applicant for Joinder, or a legal representative, was in attendance at the proceedings on 12-13 February and 3 March. 2. Opening submissions were completed on the first day of the hearing (12 February), and the entirety of the expert evidence was adduced on the second day (13 February). The hearing was adjourned at the close of the second day at which time the date for closing submissions was also set (3 March). 3. The adjournment granted on 13 February was for a period in excess of 2 weeks that, in my view, provided an opportunity for the Intervener to prepare an Affidavit and lodge a Notice of Motion with the Court prior to the resumption of the hearing on 3 March 2020. 4. Appendix G of the Affidavit contains a letter prepared by Ms Kate Swain, of McCullough Robertson Lawyers, on behalf of the Intervener dated 26 February 2020, along with Annexures A-D. A letter prepared by Mr Ian Rush of Cessnock City Council and said to have been provided at the s34 conciliation conference, held on 2 July 2019, indicates the Intervener had knowledge of the issues in dispute prior to the proceedings to which it now seeks to be joined. 5. When read as a whole, the Affidavit appears to substantially deal with those issues the subject of the Contentions proposed by the Intervener. For whatever reason, the Intervener did not choose to act on the matters set out Ms Swain's letter of 26 February 2020 until 4 March 2020, when the proceedings had concluded.
For the reasons stated above, I conclude that the Application for Joinder was delayed without adequate reasons being provided by the Intervener and so, on balance, I am of the view that in the circumstances of these proceedings the Court's discretion should not be exercised in favour of making an order for joinder.

Orders

The Court orders that: 1. The Notice of Motion filed on 6 March 2020 be dismissed.

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: 05 May 2020

(2017) 222 LGERA 286

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