[2003] NSWLEC 195
Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361
Source
Original judgment source is linked above.
Catchwords
[2003] NSWLEC 195
Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361
Judgment (10 paragraphs)
[1]
JUDGMENT
The matter before me is a notice of motion seeking the joinder of Mr Bateman to these proceedings.
The substantive proceedings concern an application by Ms Westaway seeking consent for alterations and additions to her property in Mosman.
Mr Bateman owns a neighbouring property and seeks joinder under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) or in the alternative, that I make an order under s 38(2) of the Land and Environment Court Act 1979 (LEC Act).
[2]
Legal Principles
Turning first to the power for joinder under s 8.15(2) of EPA Act. This section states as follows:
(2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion -
(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or
(b) that -
(i) it is in the interests of justice, or
(ii) it is in the public interest,
that the person be joined as a party to the appeal.
Consideration of an application under s 8.15(2) is a two-step process in which I must first be satisfied that one of the limbs of s 8.15(2) is met and then consider whether it is appropriate for me to exercise my discretion to make an order: Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44].
In the alternative to being joined as a party pursuant to s 8.15(2) of the EPA Act, Mr Bateman seeks to lead evidence, cross-examine witnesses and make legal submissions in respect of Council's Statement of Facts and Contentions (SOFAC) by way of a "Double Bay Marina Order" made pursuant to s 38 of the LEC Act.
Sections 38(2) and (3) of the LEC Act provides:
(2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.
(3) Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court's jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.
The Court has a wide power to make orders referred to as "Double Bay Marina" orders following the decision in Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 ("Double Bay Marina"). In the Double Bay Marina case, orders were made allowing objectors to participate in the proceedings where the views of the objectors conflicted with the submissions of the Council, to enable those views to be independently put to the Court.
To assist the Court with the consideration and determination of his application for joinder, Mr Bateman has filed and served an affidavit in support of his application for joinder and also included a draft of his proposed SOFAC which he will seek to file and serve if he is joined to the proceedings.
[3]
Can the issues be sufficiently addressed without joinder?
Mr Bateman's draft SOFAC proposes 6 contentions, however the basis for joinder sought by Mr Bateman can be summarised as:
1. Visual impact of the development on his property.
2. Inconsistency with the Mosman Development Control Plan 2012 (Mosman DCP) in relation to view sharing.
3. Unacceptable impacts on privacy.
4. Failure to apply principles of view sharing.
5. Failure to consider an alternative solution.
Mr Bateman submitted to me that none of these issues are in the Council's SOFAC and argued that without his joinder these are not likely to be sufficiently addressed unless he is joined as a party.
[4]
Proposed view loss contentions
Turning now to Mr Bateman's proposed contentions concerning the impact on view loss which encompasses the visual impact of the development on his property, the inconsistency with the Mosman DCP on view sharing, the failure to apply principles or view sharing and the failure to consider an alternative solution.
Mr Bateman's draft SOFAC contends that the proposed development will have an unacceptable impact on the views enjoyed from his property. The views he claims will be lost are described as "district views" from a single room on his property which he calls the living room. He says an alternative design with a flat roof should have been adopted by Ms Westaway to maintain the district views.
The impact on the district views enjoyed from the room on Mr Bateman's property is best shown by the view loss montage prepared for Mr Bateman, and extracted at contention 2 of his draft SOFAC:
I accept that the loss of district views from this room in Mr Bateman's property has not been raised in Council's SOFAC. However, having satisfied the first test for joinder, s 8.15(2) also requires me to exercise my discretion. In considering whether to make an order for joinder, the Court is required to balance the need for efficiency with the need to have all relevant matters before the Court for consideration (Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 ("Kavia Holdings Pty Ltd").
As such, it is important at this point to note that the district view above, which is only available from a single room, is not the only view enjoyed from Mr Bateman's property. The solicitors for Ms Westaway filed and served uncontested evidence showing the expansive harbour views, spanning from Balmoral Beach, across to Manly and North Head enjoyed from multiple rooms and locations within and from Mr Bateman's property.
Mr Bateman's draft SOFAC refers to Section 4.3 of the Mosman DCP. The introduction to Section 4.3 of the Mosman DCP makes plain that district views are not considered in an assessment of view loss, unless district views are the only views available.
"Council will consider the following steps in the assessment of reasonable view sharing:
1. What views are to be affected? In this Plan, a reference to views is a reference to water views and views of significant landmarks (E.g. The Heads, Opera House and Harbour Bridge). Such views are more highly valued than district views or views without significant landmarks. District views and views of bushland will be considered in development assessment where they are the only views available."
Accordingly. the fact that Council has not squarely raised a view loss contention from Mr Bateman's property is unsurprising given that district views are not relevant considerations under the Mosman DCP in circumstances where water views are also enjoyed from various parts of the dwelling.
In Kavia Holdings Pty Limited, the Court said at [36]:
" ... The fact there are issues the [Intervenor] wishes to raise which the Council does not wish to is not sufficient to warrant the automatic application of [the power for joinder] ... "
The likely strength of the issues sought to be raised by Mr Bateman must be balanced with the efficient disposition of proceedings before the Court. This is relevant to the exercise of my discretion to join a party to proceedings and I do not consider the view loss impact to be an issue that warrants joinder.
[5]
Proposed privacy and overlooking contention
I will now turn to the privacy impact that Mr Bateman wishes to raise. Mr Bateman is concerned that the proposed extension shown in the photomontage above would result in a loss of privacy for him and his family as anyone using that area could overlook his property.
Although I accept that this is not an issue that has been raised in the Council's SOFC, on examination of the plans there is simply no opportunity for anyone using that area to overlook Mr Bateman's property. There are no windows. That area is proposed to be a bathroom with a skylight on a pitched roof. The concerns about privacy and overlooking simply do not arise. As such, I am exercising my discretion to not order joinder on this issue.
[6]
Is it in the interests of justice to order joinder?
I now turn to the final two limbs of the test for joinder under s 8.15(2) of the EPA Act and consider whether it is in the interests of justice or the public interest to order the joinder of Mr Bateman to these proceedings. In undertaking this consideration, I am guided by the findings of his Honour Preston J in Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802.
I do not consider it necessary to join Mr Bateman in the interests of justice. As Ms Westaway submitted during the hearing of this motion, Mr Bateman and the experts he has engaged have provided three written submissions to Council and been given an opportunity to address the Mosman Planning Panel about the issues he now wishes to raise.
The planning scheme established by the EPA 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.
Mr Bateman's dissatisfaction with the merit outcome of a determination by the Council does not entitle him to be joined as a party to continue arguing his particular submission.
I consider there to have been sufficient time and opportunity for Mr Bateman to put forward the issues that concern him and it is not necessary in the interests of justice for him to be joined so as to continue the process of objection on those issues.
[7]
Is it in the public interest to order joinder?
I also find that it is not necessary to join Mr Bateman having regard to the public interest. As I have said, each of the issues that Mr Bateman wishes to raise have been adequately canvassed throughout the course of the Council's consideration of the development application. This is not a case where the Court would be deprived of meaningful assistance if Mr Bateman were not joined.
As such, I find the test for joinder under s 8.15(2) to have failed.
[8]
Double Bay Marina Order
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 LEC Act, allowing Mr Bateman to participate in the proceedings under a Double Bay Marina order.
The effect of such an order would be as described by Pain J in Kavia Holdings Pty Limited (at [7]), that Mr Bateman "may adduce evidence and participate in the proceedings but not be eligible to participate as a full party in the proceedings". Jagot J noted in Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 in relation to s 38(2) of the LEC Act at [5]:
"While s 38(2) is not similarly constrained, the types of consideration that are set out in [s 8.15(2)] no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order."
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 Bateman'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 LEC Act.
[9]
Costs
Ms Westaway is also seeking an order for her costs of this notice of motion.
In making a cost order in Class 1 proceedings, r 3.7 of the Land and Environment Court Rules 2007 requires that the Court be first satisfied that an order for costs is fair and reasonable before making such an order. There are a range of circumstances set out in r 3.7(3) that describe the circumstances in which the Court might consider it fair and reasonable to make a cost order.
That list is certainly not exhaustive, and there is a range of case law where the Court has found other circumstances in which it is fair and reasonable to make a cost order.
Although Mr Bateman has ultimately been unsuccessful in his joinder and the application has put Ms Westaway to the cost of defending the notice of motion, I am not of the view that there was any conduct that makes it fair and reasonable for Mr Bateman to bear the costs of Ms Westaway in defending the application.
Therefore, I decline to make any order to costs.
The Court orders that the motion is dismissed.
[10]
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Decision last updated: 03 September 2024