STMRCF Pty Ltd v Woollahra Municipal Council

Land and Environment Court (NSW)|2022-09-02|Before: Robson J

ex tempore Judgment

By notice of motion filed 23 August 2022, Woollahra Residents' Association Inc ('WRA') seeks to be joined as the second respondent in these Class 1 appeal proceedings commenced 6 May 2022 by STMRCF Pty Ltd ('STM') by way of appeal against the deemed refusal by Woollahra Municipal Council ('Council') of a development application lodged 13 October 2021 seeking approval for development of land at 364 and 364A Edgecliff Road, Woollahra ('Site').
The development application was formally refused on 26 July 2022.
The motion for joinder is opposed by STM and Council neither consents nor opposes the joinder.
The hearing of the motion proceeded before me this afternoon and given that the matter is set down for a s 34 conciliation conference on 8 September 2022, there is an element of urgency in the determination of this motion for joinder.

Background

STM is the owner of the Site, and the development application was lodged seeking development consent for "minor alterations to existing dwelling at the front of the site, demolition of existing dwelling at the rear and construction of a new residential flat building". More specifically, the proposal involves: 1. Demolition of the existing dwelling house on the land legally described as Lot 2 in DP224367 ('Lot 2') and also known as 364A Edgecliff Road; 2. Demolition works and alterations and additions to the existing dwelling house on the land described as Lot 1 in DP224367 ('Lot 1') and also known as 364 Edgecliff Road; and 3. Construction of a six-storey residential flat building over both lots (which will be consolidated) comprising 11 apartments with basement car parking (including 7 car stackers to accommodate 15 car spaces and 2 motorcycle spaces) and associated landscaping and site works.

Evidence

In support of the motion for joinder, WRA reads the affidavit of its solicitor, Stephanie Vatala, sworn 23 August 2022, and STM reads two affidavits of its solicitor, Anthony Boskovitz, sworn 1 and 2 September 2022. Ms Vatala's affidavit provides details of the background to the proposal and submissions in relation to a number of discrete breaches (and exceedances) of various planning instruments and policies in support of WRA's application (for joinder) and exhibits a bundle of background documents which became Exhibit A. Mr Boskovitz's first affidavit exhibits a bundle of background documents which became Exhibit 1 and his second affidavit annexes an application pursuant to s 4.6 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') to vary a development standard in the WLEP (being cl 4.3, "Height of buildings").
I do not summarise the evidence except to note that the Court has received (and I have considered) extensive background material in relation to the proposal, including extensive submissions received in response to the public notifications and Council's internal assessments thereof. The Court also received a further bundle of documents containing extracts from relevant environmental planning instruments and Council policies.

Submissions

Each of the parties provided written submissions (which I have closely read before the commencement of the hearing today) and made further oral submissions this afternoon. Given there is some urgency in the matter, I shall briefly summarise the submissions of each of the parties.

WRA's submissions

WRA makes eight sometimes overlapping arguments (referred to, on occasions, as "issues") in favour of its application for joinder to the proceedings.
First, it contends that the development application is a nullity because it seeks consent for the consolidation of Lot 1 and Lot 2, which it submits is not a use of land and does not fall within the definition of "development" within the EPA Act. It notes that Council has recorded that the proposal involves "consolidation of Lots 1 and 2 into a single lot" in its SOFAC. Whether the proposal is assessed as a single lot or two separate lots affects a number of applicable planning provisions and standards especially in relation to height and floor space ratio ('FSR') controls.
Second, it contends that, pursuant to cl 4.5 of the WLEP, the FSR of the proposed development must be calculated by reference to the area of Lot 2 alone rather than the foreshadowed consolidated area of Lots 1 and 2, either because there is no significant development on Lot 1 (cl 4.5(6)) or because the Site's area must be determined on a lot by lot basis where lots have a common boundary (cl 4.5(3)), and submits that the FSR of the proposed development exceeds the FSR standard set by cl 4.4 of the WLEP when adopting this method. It submits that Council does not raise any issue regarding the FSR (presumably because it considers the Site as consolidated).
Third, it contends that Lot 2 is a battle axe lot to which cl 4.3(2B) of the WLEP applies and submits that the proposed development exceeds the 9.5m height limit on battle axe lots. Although it notes that this issue is referred to in Council's SOFAC, it contends that Council has (wrongly) assessed the proposal on the basis of Lot 1 and Lot 2 being consolidated.
Fourth, it contends that the proposed development will breach the minimum lot size requirement within cl 4.1A(2) because the area of Lot 2 is below 700sqm and submits that Council does not raise this issue in its SOFAC. The Court cannot proceed or determine the proposal on this basis, such that, the Court would not have statutory jurisdiction.
Fifth, it contends that the six-storey height of the proposed development breaches the two-storey height control within cl 2.5.2 of the WDCP reflective of the storey heights of adjacent contributory items, and that Council has not raised this issue. In oral submissions, counsel for WRA submits that Council's expressed intention to amend the SOFAC to include this issue does not sufficiently address its concerns.
Sixth, it contends that the proposed development will breach the setback requirements within Part 2F of the ADG. In particular, it submits that its concern is that Council does not refer to discrete breaches of this specific requirement in relation to specific neighbouring lots.
Seventh, it contends that the proposed development will breach the separation distances prescribed by Part 3F of the ADG and refers to material in the affidavit of Ms Vatala. It again submits that Council does not refer to any discrete breaches of this requirement in relation to specific neighbouring lots in its SOFAC.
Eighth, it contends that the proposed development is contrary to the objectives and controls of cl 2.4.12 of the WDCP in that it fails to develop a cohesive relationship with the scale and setting of the contributory item at 5 Fullerton Street. It submits that Council does not raise this issue in its SOFAC.
In response to STM's submission that it is prejudiced because of the lateness of this late motion for joinder, WRA submits that it has "moved quickly" since it first received Council's SOFAC on 18 August 2022; that the s 34 conciliation conference does not need to be vacated; and moreover that without WRA's joinder, the issues it identifies will not be raised by Council and there will not be a sufficient contradictor to assist the Court; and, further in all of the circumstances, it is in the interests of justice as well as the just, quick and cheap resolution of the matter, that the essential issues be raised at an early stage (where the matter has not yet taken a hearing date).
In oral submissions this afternoon, WRA's counsel strongly submitted that Council's conduct and response to the motion (in particular, that while it states it neither consents or opposes the motion, it appears to obviously oppose joinder) raises grave concerns as to Council's likely future conduct and that these concerns make it clear that it is in the interests of justice (and in the public interest) for WRA to be made a party.

STM's submissions

In summary, STM submits that WRA's first four "issues" are based either on a misreading of the relevant planning controls, or are already sufficiently raised within Council's SOFAC and, in any event, do not have reasonable prospects of success; that last four of WRA's "issues" concern merit matters and can be sufficiently achieved without joinder having been raised and discussed before Council repeatedly (in detailed submissions received and considered by Council including detailed submissions from members of WRA); and that WRA has no special interest entitling it to be an adversary to development consent. STM responds to the arguments seriatim as follows.
First, lot consolidation does not require development consent under the WLEP, a condition of consent can lawfully require consolidation, and the reference to lot consolidation is to be expressly removed from the description of the development application. It submits that consolidation is not a jurisdictional bar to the grant of consent and the issue would be given little weight if it was relevant to the Court's discretion.
Second, there is no exceedance in the calculation of the FSR controls because - significant building works will occur on both Lot 1 and Lot 2, the FSR in both buildings is relied upon for the purposes of the FSR calculations, and there is no "third or additional" lot relied upon by STM for the purpose of calculating the Site's area. As such, it submits that Council's SOFAC does not raise FSR because the proposed development complies with the control. Further, WRA has misunderstood the relevant provisions, including cll 4.5(3)(b) and 4.5(6), such that on a proper construction of those clauses the FSR of the proposed development has been properly determined and they consequently do not require a cl 4.6 request.
Third, there is no jurisdictional barrier to development consent because Lot 2, whilst being irregularly shaped, is not a battle axe lot and even if it were, STM has indicated that it would accept a condition requiring consolidation of the lots prior to any works commencing; and, in any event, a cl 4.6 request has now been prepared which Council can oversee. Moreover, it submits that the contention regarding battle axe lots and building height is already raised by Council in its SOFAC (at contention 5(b)) (and has been addressed in two separate expert reports). In oral submissions, counsel for STM said this matter has been raised and considered by Council's reference to the Tomasy Planning Report.
Fourth, the argument regarding minimum lot size is improperly raised as it was not referred to in the affidavit of Ms Vatala; it was already raised in Council's SOFAC (and in the Assessment Report); there is no "jurisdictional" bar to consent being granted because cl 4.1A(2) of the WLEP is a guide rather than a control; and, in any event, a cl 4.6 request is being prepared on a without prejudice basis which Council can oversee.
Fifth, there is no expert evidence as to whether the predominate contributory items in the streetscape are, in fact, three storeys or more, and the WDCP is unlikely to apply because a control of two storeys is inconsistent with the 19.5m height limit otherwise applicable in the WLEP, because of the application of s 3.43(5) of the EPA Act in relation to inconsistency between an environmental planning instrument and a development control plan. Further, the control is a merit issue which has been raised on at least three prior occasions, including as a reason for refusal. Finally, Council is intending to amend its SOFAC to raise cl 2.5.1 and Control C9 of the WDCP.
Sixth and seventh, the provisions of the ADG relating to setback and separation requirements are merit matters to be taken into consideration, there is no expert evidence that establishes the separation issue, and Council has otherwise raised the provisions of Parts 2F and 3F of the ADG in its SOFAC.
Eighth, the objectives and controls of the WDCP have been raised in Council's SOFAC (for example, Contention 3(d) and (e)) and were raised in Council's Assessment Report, and reasons for refusal.
STM further submits, albeit faintly, that little is known about WRA (in terms of its membership, management, decision-making and constitution) and the Court would decline to order joinder without being satisfied that the motion was subject of proper authority given by WRA: Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) [2020] NSWLEC 82; and that WRA has delayed bringing this application without explanation where Council's SOFAC was filed on 28 June 2022, and, in these circumstances, joinder would cause significant prejudice to STM where a s 34 conciliation conference is less than one week away and no alternate contentions have been proposed by WRA.

Council's submissions

In summary, Council neither opposes nor consents to WRA's motion for joinder. However, it submits that the issues sought to be raised by WRA have been, or will be, addressed by Council in the proceedings. While Council accepts that its SOFAC does not raise a number of issues agitated by WRA, some of which will be raised in an amended SOFAC, it rejects any notion that the omission of the issues is due to a lack of consideration or assessment and remains of the view that the development application should be refused on its merits and while maintaining that position, Council's position in relation to some of the issues raised by WRA is as follows.
In relation to the first issue, Council is aware that consolidation is not "development" but contends that WRA is incorrect to state that the development application must be refused as a matter of law because, in fact, the Court has the power to grant partial consent and could impose a condition requiring the registration of lot consolidation to facilitate the proposed development.
In relation to the second issue, Council has not raised any contention in relation to the FSR because, in Council's view, the proposed development complies with the FSR controls, where the full area of Lots 1 and 2 should be included as part of the FSR calculation because there will be significant development on Lot 1 (including the replacement of a garage with a carport, construction of a bin area, fencing and landscaping, construction of a patio, landscaping, driveway and access widening works) and adopts WRA's submission that the calculation of site area involves both Lot 1 and Lot 2.
In relation to the third issue, the issue of height control for a battle axe lot has been raised in its SOFAC. Council maintains that the whole of the Site (being Lot 1 and Lot 2) is the subject of the development application, and in an oral submission states that it is seeking legal advice regarding this.
In relation to the fifth issue, Council accepts that it has not raised a contention in relation to Control C9 of cl 2.5.2 of Ch 2 of the WDCP, however has earlier stated that it intends to approach the Court to seek leave to file an amended SOFAC to raise this issue (which STM has consented to).
In relation to the sixth and seventh issues, it is incorrect to state that Council has not considered, or addressed in its SOFAC, the supposed breach of ADG requirements because Council's urban designer assessed the relevant separation distances and considered both the setback and visual privacy impacts of the proposed development. In any event, Council has raised as specific contentions the separation distance and impacts on 5 Fullerton Street and 1 - 3 Fullerton Street in its SOFAC, and 366 Edgecliff Road was considered by its urban design consultant. Insofar as Council did not raise certain specific matters now sought to be expanded by WRA in its SOFAC, Council, in accordance with the Court's Practice Note Class 1 Development Appeals (Sch B), has only raised issues (in relation to non-compliance with the ADG) which its expert considered were required to be raised or those which should cause the Court to refuse the development application.
In relation to the eighth issue, Council submits that its SOFAC clearly identifies 5 Fullerton Street as a contributory item and raises impacts on it caused by the proposed development's non-compliance with separation requirements, and that it has not raised issues regarding the impact of the proposed development on the heritage values and significance of that item because its heritage officer did not consider those impacts sufficient to warrant refusal of the development application. In any event, Council submits that it is seeking further advice from its heritage officer (once she returns from leave on 6 September 2022) and will seek leave to amend its SOFAC if it is considered appropriate to include the relevant impacts.

Consideration

Although the Court may join a party if joinder is proper or necessary pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW), applications for joinder are primarily governed by s 8.15(2) of the EPA Act, which reflects the former s 39A of the Land and Environment Court Act 1979 (NSW). Section 8.15(2) provides: 8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act) … (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. …
The principles which I am to adopt have been often referred to and considered by this Court. Of particular relevance are the comments of Preston CJ of LEC in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 ('Morrison Design'), where his Honour stated: "[42] I note at the outset that s 39A is facultative in the sense of enabling the Court to join a person to proceedings under the Environmental Planning and Assessment Act of the types listed in s 39A of the Land and Environment Court Act who would not otherwise have a right to be a party to such proceedings. Under the Environmental Planning and Assessment Act, persons who object to development proposed in a development application or to a modification of a development consent, have no right to be joined as a party to proceedings unless the development is classified as designated development… [43] This is relevant to note because the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation, including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering exercising the power under s 39A. The power under s 39A is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to appeals under ss 96, 96AA, 96A and 97 by dissatisfied applicants for or holders of development consent. Rather, the circumstances in which the Court may order a person to be joined as a party to proceedings of the types listed in s 39A are limited to the circumstances set out in paras (a) and (b) of s 39A… … [48] The second limb in paragraph (b) has two grounds: the interests of justice and the public interest. [49] In relation to the first ground, it is not necessary to join the Owners Corporation in the interests of justice. As Morrison Design Partnership submitted, the Owners Corporation has been given numerous and meaningful opportunities to be heard through the year long process of consultation and consideration by the Council. The Owners Corporation and individual proprietors, and the experts engaged by them, have had many opportunities to express, both in writing and orally, their concerns as to each and every one of the issues that the Owners Corporation now wishes to raise. There is no suggestion that they have not had adequate opportunity. Furthermore, as I have said, there will be further opportunity for the Owners Corporation to participate firstly in the forthcoming s 34 conciliation conference, and if a hearing is to occur, at that hearing. … [51] 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. [52] 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. … [54] 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, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings. …
These principles have been considered more recently by Pepper J in Barr Property Pty Ltd v Cessnock City Council [2021] NSWLEC 20 at [46]-[53].
In relation to the first limb, being s 8.15 (2)(a), it is clear that the "sting in the test" (to quote the words of Moore J in Suh v Liverpool City Council [2016] NSWLEC 25; (2016) 216 LGERA 84 at [35]) are the words "sufficiently addressed". This "test" is frequently considered when the application is founded upon issues which may already have been raised by the consent authority and on an application for joinder the applicant desires to supplement those issues.
Adopting the principles above, having read the material to which I have been directed and having given consideration to the extensive documentation that has been referred to in the parties' written and oral submissions, for the reasons that follow I am of the view, not without some anxious consideration, that the motion should be dismissed primarily because, given Council's position, and the circumstances of the history of this development application, I am not satisfied that WRA raises any issue that would not be likely to be sufficiently addressed (or I add may not have been previously addressed) if it were not joined as a party. Further, again given the background (and the opportunity for WRA to be further heard at the s 34 conciliation conference and at any further hearing), I do not consider that it is in the interests of justice or in the public interest that WRA be joined as a party. While my view has been formed by my consideration of the material and on a general acceptance of the submissions made by both STM and Council noted above, before I deal briefly with each ground, I make three general comments.
First, while there may be an argument that the first four matters raise issues going to jurisdiction, having considered various planning controls, I am of the view that whilst these are not matters that are primarily to be determined on a motion for joinder, I am not, on the material presently before me, of the view that they are in fact jurisdictional or have not been raised in the SOFAC. To that extent, I accept the submissions of STM and Council.
More relevantly, it is trite that the Court (either at the hearing of the matter or in relation to any agreement that may be reached in a s 34 conciliation conference), must itself be satisfied that it has the jurisdiction to grant consent or adopt any agreement reached between the parties. From my understanding of Council's position in relation to its consideration of the application (through the Panel) and the content of its SOFAC (noting that there is to be an amendment thereto), Council (and STM) are well aware of the requirement to assist the Court in satisfying itself of its jurisdiction and would assist the Court accordingly.
Second, the other issues (primarily issues four to eight) are in my view merit-based matters which I consider are able to be sufficiently addressed without joinder, because the material (including a number of Council officer reports) now before the Court and highlighted in the submissions and evidence marshalled by the parties, indicates that Council (its officers and the Panel) was aware of, and gave consideration to, a number of the matters now sought to be raised as independent concerns (which are not otherwise raised in Council's SOFAC). Moreover, I consider that in light of the detail (and particularisation) of the contentions already raised in the SOFAC, a number of the concerns sought to be further agitated by WRA are themselves subsumed within (or an element of) the grounds already raised (for example, the various contentions regarding "heritage" concerns). In any event, as I have noted earlier, those who object to the proposed development, including WRA (and its members), will still have an opportunity to address the Court at the commencement of the s 34 conciliation conference (and any hearing) even if not a party.
Third, I do not consider that the recent incorporation of WRA is a matter of any particular relevance apart from the lateness of this motion for joinder - a matter I would have taken into account in the exercise of my discretion should it have been necessary. It is clear that WRA's members are properly interested in the appropriate and legitimate outcome of these proceedings. In that regard, I am comfortable that the various objectors have had ample opportunity to ventilate their concerns - and it is now clear that Council has considered (and in some circumstances embraced) a number of the matters raised by the objectors and that their legitimate concerns have been (and will be) taken into account in any further determination of this matter. Again, based upon the material presently before the Court (and the solemn submissions of Council), Council remains strongly opposed to the development as it is presently configured.
Apart from the above, I now make the following comments in relation to the "issues".
In relation to the first issue, while this is not a matter that requires complete determination because site consolidation and/or amalgamation does not require development consent under the WLEP, even if that be wrong, I am of the opinion that a condition of consent can lawfully require consolidation. Further, I note - that STM is "expressly removing" the description of "consolidation" from the proposal; that, as submitted by Council, consolidation does not fall within the definition of "development" in the EPA Act; and that (as is clear from the SOFAC), Council maintains that the proposed development should be refused because it is not acceptable on its merits and that even if the Court found against that position, a condition requiring consolidation could be required under s 4.17 of the EPA Act. Again, as I noted above, to the extent that this aspect was jurisdictional, the Court (either at the s 34 conciliation conference or at any later determination) must itself be satisfied.
In relation to the second issue concerning exceedance of the FSR standard in the WLEP, I do not accept this is a determinative matter on this motion for joinder and even if there was a live argument whether WRA's approach to determination of the FSR and WRA's suggested construction of the relevant clauses in the WLEP were correct (about which I have some doubt), this is able to be met (and to the extent that it remains a concern is intended to be met) by the provision (on a without prejudice basis) of an application for variation pursuant to cl 4.6, although I note STM's oral submissions maintained that a cl 4.6 request was not required. I also note Council's response that it has not raised a contention in relation to the FSR because it considers the proposed development complies with the FSR controls.
Although with limited time, I have looked at s 4.5(6) of the WLEP, which makes reference to whether the calculation of site area must not include a lot "additional to a lot on which the development is being carried out", and I am of the preliminary view that because the proposed development is intended to be carried out on both Lot 1 and Lot 2, the full area of those lots may be appropriately included as part of the FSR area. As I said, Council did not raise this "issue" as a contention because it contends that the proposed development complies with the FSR. Although Council does not agree with WRA's interpretation of cl 4.5(3)(b), it is likely the case that there is significant development of Lot 1 (which raises cl 4.5(6) of the WLEP) and although this is some matter of concern, again I do not consider that this is determinative.
In relation to the third issue regarding maximum height under cl 4.3(2B) of the WLEP, I consider that concerns as to whether one of the lots is a "battle axe" and therefore triggers a height control is a matter that has been specifically raised by Council at contention 5(b) of the SOFAC. Again, this is a matter for determination by the Court. Even if that be wrong, and to the extent that it could be argued that this is a jurisdictional barrier to the grant of consent, it is something that the Court would in any event need to be satisfied of, and again I am not convinced that this is a matter about which the Court would not be able to obtain meaningful assistance from Council and STM. I also note that (in relation to maximum height) a cl 4.6 request has now been prepared and I accept the submission that the issue has been raised on a number of occasions in objections before Council and has been considered in the Assessment Report and the Tomasy Planning Report referred to above.
In relation to the fourth issue concerning a suggested breach of the minimum lot size control for residential flat buildings, although I do not accept that the lateness of this issue (that is, it was not in Ms Vatala's affidavit) should be determinative against the motion for joinder as suggested by STM, I accept STM's submissions and I find, first, that the issue is raised in the SOFAC at Contention 5(a) (under the heading "Inappropriate Siting of Proposed Residential Flat Building"); second, it is not likely jurisdictional limited and even if it was, a s 4.6 request is being proposed; and third, that this "issue" has been raised on a number of occasions by various objectors (for example, as noted in Council's Assessment Report). I repeat my comment above regarding the Court having to be satisfied of its jurisdiction.
In relation to the fifth issue concerning a suggested breach of the limit of the two-storey height control in cl 2.5(2) of the WDCP, I consider that this is clearly a merit contention and is not a mandatory jurisdictional prerequisite, nor is it binding on the Court. In any event, it is a matter which has been raised on a number of occasions including in the Tomasy Planning Report and the subsequent recommendation from Council staff to the Panel that Control 9 of cl 2.5.2 of the WDCP be inserted into the Panel's reasons for refusal.
Despite the above, I repeat that the evidence before the Court is that although Council has not raised a contention in relation to this clause in the SOFAC, it has indicated an intention to approach the Court for leave to file an amended SOFAC in order to raise the issue and STM has agreed to this course of action. In the circumstances, I do not consider WRA's argument persuasive.
In relation to the sixth issue concerning the setback requirements under relevant provisions of the ADG, WRA submits that this non-compliance has simply not been raised by Council at all in relation to both neighbouring properties (being 5 Fullerton Street and 366 Edgecliff Road) or in relation to 1 - 3 Fullerton Street. I consider, as submitted by STM that, the matter in this issue (and indeed the seventh issue) primarily relate to merit contentions. Further, I take into account Council's submission and find that the SOFAC identifies 5 Fullerton Street as a contributory item to the Woollahra Heritage Conservation Area and raises impacts on 5 Fullerton Street in relation to building separation non-compliances. Council submits (although there is no evidence presently before the Court) that certain heritage impacts have not been raised because they do not warrant refusal of the proposal. I note that Council properly concedes, due to the absence of the heritage officer, that further advice will be received and Council, if appropriate, will seek leave to amend its SOFAC. Although I do not consider this altogether satisfactory given the contentions otherwise raised in relation to heritage, I do not think that this on its own, or combined with other matters, is determinative of the present motion for joinder.
Apart from the above, as submitted by Council, the separation provisions are raised in various contentions, in particular Contention 5(x), Contention 6(a), Contention 6(f), Contention (8), and Contention (13). Having considered these contentions, I am of the view that the siting of the residential flat building in what could be considered the rear setback, and the other relevant matters in the various parts of the ADG, are sufficiently raised in the contentions.
In relation to the eighth issue concerning whether the proposed development is contrary to the objectives and controls of cl 2.4.12 of the WDCP, by way of its disrespect to the scale and setting of the contributory item at 5 Fullerton Street, Council again submits, and I accept, that the SOFAC clearly identifies 5 Fullerton Street as a contributory item to the Woollahra Heritage Conservation Area and raises the impacts on 5 Fullerton Street in relation to building separation and non-compliances. It is clear that the objects and controls of the WDCP are specifically raised in the SOFAC at Contentions 3(d) and 3(e). Again, in the circumstances, I do not find this argument persuasive.
Apart from the above consideration of the discrete issues, there is little doubt that the proposed development is somewhat controversial, that Council has received considerable objections and detailed submissions, and has, as a result, raised significant issues in the SOFAC. I am not satisfied that the further detail and expansion of the issues sought by WRA is either warranted or, indeed, in the public interest. A consent authority's obligations in considering submissions of interested parties is well-known and I am particularly conscious of this in my consideration of the application of the matters considered and the commentary of Preston J in Morrison Design, to which I have already referred.

Conclusion

For the above reasons, I am not satisfied that WRA is able to raise any issue that should be considered in relation to the appeal that would not likely be sufficiently addressed if WRA were not joined as a party. I am not satisfied that the presence of WRA is needed to ensure that the Court has a party to assist it by leading evidence and/or by making submissions on the eight issues. I have taken into account the facts that, even though WRA is not a party, its members are able to make further submissions at the scheduled s 34 conciliation conference and at any hearing that may follow, and that Council in its consideration and indeed in its SOFAC was aware of the various concerns outlined in the extensive submissions received consequent upon the notification. In all of the circumstances, I am not of the opinion that it is in the interests of justice or in the public interest that WRA be joined as a party.

Orders

The Court makes the following orders: 1. The notice of motion filed 23 August 2022 is dismissed. 2. Costs are reserved.

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: 13 September 2022

Heritage Act 1997(NSW)

(2007) 159 LGERA 361

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