Yarranabbe Property Pty Ltd v Woollahra Municipal Council

Determination of application for joinder

1. In Morrison Design Partnership Pty Ltd v North Sydney Council [2007] 159 LGERA 361, Preston CJ considered the proper approach to the question of joinder pursuant to the power as it then was provided in s 39A of the LEC Act. The provisions of s 39A were in identical terms to that now contained in s 8.15(2) and therefore remain apt. His Honour observed at para 43: 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 39 A. 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 39 A. It is to those paragraphs, therefore, that I turn.
2. His Honour then further observed at [53]-[54]: 53 A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission. 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.
3. Adopting the principles outlined in Morrison, the Intervenors' application for joinder should be dismissed.
4. In this case, the Intervenors have raised through the process of community consultation the issues that they now seek to raise in these proceedings if they are joined. Those issues were the subject of consideration and were largely adopted by the Council in its refusal of the DA. The issues were again ventilated in the presence of the presiding Commissioner at the s 34 conference and the Commissioner was given the benefit of a site inspection, including attending at each level of the affected dwelling house, to consider and assess the impacts of the DA on the Intervenors' Land and on other land in the locality.
5. On the assumption that the Council and the Applicant will move the Court pursuant to s 34(3) to give effect to an agreement reached between them, the Commissioner will not be required to make a merit assessment of the DA, but will be required to be satisfied that the agreement is one that could have been made by the Court in the proper exercise of its functions. This assessment will include a consideration of the adequacy of the cl 4.6 variations.
6. The Commissioner has before him a large volume of material that assesses the impact on views from various locations, including those prepared on the Intervenors' behalf. He also has the benefit of the site inspection and oral submissions at the s 34 conference. The nature of the assessment he is now required to undertake is one where there is sufficient material before him - by way of submissions, the Council assessment and his own inspection - that will permit that consideration to be sufficiently undertaken. Having regard to the particular issues sought to be raised in this case and the power to be exercised by the Court pursuant to s 34(3) of the LEC Act, the issues sought to be raised by the Intervenors can be sufficiently addressed without the need for the Intervenors to be a party to the proceedings or to make submissions.
7. In particular, the Council officer's assessment report demonstrates a detailed consideration of the relevant matters, including the issues now sought to be raised by the Intervenors. That assessment demonstrates a detailed assessment of all materials submitted both from the Applicant and submissions by third parties, together with an independent assessment of the relevant issues, even when not directly raised by material provided to the Council. It demonstrates that there has been a clear and sufficient identification of potential issues and an analysis of whether development consent is appropriate in the circumstances.
8. Whilst that report related to an earlier version of the DA, it is only reasonable, in the absence of evidence to the contrary, to infer that the Council has undertaken a similarly detailed and independent analysis of the DA in its amended form. This is not a case where an issue has not been sufficiently addressed in the available material such that the Commissioner will be unable to sufficiently address for himself the matters he is required to address absent assistance from the Intervenors.
9. The fact that the Council's position has changed from supporting a refusal to the entering into an agreement for development consent is not, of itself, a demonstration that any necessary issue is unable to be sufficiently addressed. It is necessary to identify the tasks that the Commissioner is undertaking in the appeal and ask whether the Commissioner could sufficiently address that task in the absence of the Intervenors. In this case, the Intervenors' submissions clearly set out their position in relation to the issues they raise. The Commissioner, armed with that information, is able to sufficiently address whether the agreement is one that can be made, taking into account the Intervenors' submissions as part of the matrix of information available to him.
10. On that basis, the Intervenors have not demonstrated that they are 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 was not joined as a party. The Court is able to sufficiently address any of the necessary issues in the determination of this appeal, and in particular the limited issues that the Court engages in where a s 34(3) agreement is submitted to the Court.
11. Further, for the very same reasons, I consider that neither the interests of justice nor the public interest warrant the Intervenors being joined merely on the basis that they are affected by the DA or are able to raise issues that relate to the public more generally.
12. For those reasons, I am not satisfied that the Intervenors satisfactorily demonstrate a basis for joinder pursuant to the provisions of s 8.15(2), or UCPR 6.27.

Orders

1. The Notice of Motion filed on 30 July 2020 is dismissed;
2. The exhibits are returned; and
3. Costs reserved. Any application for costs to be made within seven days from the date of judgment.

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 August 2020