Anderson v City of Sydney Council

[2015] NSWLEC 1135

Land and Environment Court

New South Wales

Medium Neutral Citation:	Anderson v City of Sydney Council [2015] NSWLEC 1135
Hearing dates:	07 May, 2015
Date of orders:	07 May 2015
Decision date:	07 May 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The notice of motion of Macleay Regis Limited dated 1 May 2015 is dismissed.
Catchwords:	PRACTICE AND PROCEDURE: Joinder of party; neighbouring residential flat building seeking to be joined to development appeal.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361
Category:	Procedural and other rulings
Parties:	Macleay Regis Limited (Applicant on the motion) Dirk Anderson (Applicant in the proceedings) Council of the City of Sydney (Respondent)
Representation:	Counsel: Mr T. Hale SC (Applicant on the motion) Ms S. Duggan SC (Applicant in the proceedings) Ms F. Berglund Barrister (Respondent) Solicitors: Minter Ellison (Applicant on the motion) Gadens Lawyers (Applicant in the proceedings) Council of the City of Sydney (Respondent)
File Number(s):	10997 of 2014

Judgment

1. COMMISSIONER: The Macleay Regis Limited, by notice of motion dated 1 May 2015, seeks an order pursuant to s 39A of the Land and Environment Court Act 1979 (LEC Act), to be joined as a party to these proceedings as a second respondent. This motion came before me today for hearing.

Background

2. The Macleay Regis is a block of company title apartments located at 10-12 Macleay Street, Potts Point. The Macleay Regis is the adjacent property, to the west of 15 Billyard Avenue, Elizabeth Bay.

3. Mr Dirk Anderson lodged Development Application No. D/2014/1585 on 15 October 2014 for alterations and additions to the existing building at 15 Billyard Avenue, Elizabeth Bay (the site), for the construction of a roof level terrace (the proposal).

4. 15 Billyard Avenue, Elizabeth Bay is a five storey residential flat building, elevated from street level with basement level garages, with a hipped roof with a parapet at the east elevation, fronting Billyard Avenue. The existing building is identified by the Council as contributory to the Elizabeth and Rushcutters Bays Heritage Conservation Area (CA20).

5. The development application was publicly notified between 3 November and 18 November 2014 to within a 25 metre radius of the site and 50 submissions were received, including submissions from residents of the Macleay Regis.

6. Mr Anderson lodged an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) to the Court against the Council’s deemed refusal of his development application on 2 December 2014.

7. A conciliation conference was held on site and at Court, under s 34 of the LEC Act, on 23 February, 2015. The Court, in the company of the parties and their experts, heard evidence from resident objectors and viewed the site from a number of the apartments in the Macleay Regis. The conciliation conference was terminated by the Court on 20 March 2015.

8. The applicant was granted leave by the Court on 9 April 2015 to rely on an amended proposal. Following the amendment of the proposal, the Council became satisfied that all of the issues that it and the resident objectors had raised had been satisfactorily addressed in the amended proposal and the Council agreed to enter into proposed consent orders with the applicant.

9. The consent orders hearing is to be heard by me today.

The evidence and submissions of the Macleay Regis Limited

10. The Macleay Regis Limited relied on the affidavit evidence of Mr Peter William Cudlipp of 606/12 Macleay Street, Potts Point. According to Mr Cudlipp at [8] of his affidavit:

“Macleay Regis Ltd seeks leave to be joined as a party to the appeal under s 39A of the Land and Environment Court Act in the interests of justice and the public interest as the Council has withdrawn its objections to the Proposal as amended, leaving no contradictor to the Proposal as amended before the Court to convey the significant erosion of enjoyment of amenity for residents of Macleay Regis which would be caused by the Proposal as amended.”

11. The Macleay Regis Limited wishes to file and serve an expert town planning report in support of its objection and seeks to be represented by Counsel and its expert town planner at the hearing.

12. The expert town planning report is prepared by Mr Giovanni Cirillo. Mr Cirillo’s report raises matters in addition to the merit matter raised in the affidavit of Mr Cudlipp, being the proposal’s exceedance of the floor space ratio (FSR) development standard for the site and that State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) applies to the proposal and has not been addressed in the application.

13. Mr Hale submits that the critical issue in support of the joinder application is Council’s support of the proposal, leaving no contradictor in the matter. He further submits that the Macleay Regis Limited should be joined as a party to the proceedings to press the following contentions:

• On the proper construction of the Sydney Local Environment Plan 2012 (LEP 2012), the proposal will contravene the FSR development standard for the site as the terrace and storage area should be included in the gross floor calculation according to the definition. As a cl 4.6 written request for an exception to the development standard has not been submitted to Council, there is no power for the Court to grant consent to the proposal;

• The proposal is caught by sub-cl 4(b) of SEPP 65, being for the substantial refurbishment of an existing residential flat building and this has not been addressed in the Statement of Environmental Effects submitted to Council; and

• The merit issue of the impact of the proposal on the amenity of the residents of the Macleay Regis, in terms of privacy, both acoustic and visual.

14. According to Mr Hale, if the Macleay Regis is joined as a party to the proceedings, the hearing can proceed today.

The submissions of the applicant and the Council

15. Ms Duggan submits that s 39A(a) of the LEC Act does not ask whether Council is a contradictor in the matter, but whether the applicant on the motion is able to raise an issue that should be considered but would not likely to be sufficiently addressed without the joinder of the party. The residents of the Macleay Regis Limited raised the amenity impact issue in their submissions and during the conciliation conference and the parties will be required to demonstrate how the amended proposal addresses the issues raised by objectors.

16. Ms Duggan further submits that Mr Darroch has prepared a cl 4.6 written request for an exception to the FSR development standard to be tendered in the substantive proceedings, however the applicant maintains that there is no exceedance of the FSR development standard by the proposal and the planning experts will provide evidence to demonstrate that assertion.

17. Ms Berglund submits that it is not necessary to join the Macleay Regis Limited as a party to the proceedings for the same reasons set out by Ms Duggan.

18. Both Ms Duggan and Ms Berglund submit that Mr Cirillo’s report is to be tendered in the substantive proceedings and he will be able to make submissions on behalf of the residents of the Macleay Regis at the commencement of the hearing.

Consideration

19. Section 39A of the LEC Act is as follows:

On an appeal under section 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979, 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.

20. The circumstances in which the Court may order a person to be joined as a party to proceedings are limited to those set out in paragraphs (a) and (b) of s 39A. The Chief Judge, in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361 at [43], notes that the legislature has drawn a distinction between designated development and other development in terms of the rights of public participation, including the right to be a party to an appeal, and this needs to be kept in mind when considering exercising the power under s 39A.

21. In regard to Mr Cudlipp’s affidavit, firstly, the Council has not withdrawn its objection to the amended proposal, as stated by Mr Cudlipp. The Council is satisfied that the amendments made to the proposal adequately address the issues raised by Council in their Statement of Facts and Contentions, being the impact of the proposal on the heritage significance of the building at 15 Billyard Avenue and the contention that there is insufficient information to make a proper assessment of the proposal.

22. Secondly, in regard to Mr Cudlipp’s statement that there is no contradictor to convey the significant erosion of the amenity of the residents of the Macleay Regis; the Council is required to demonstrate during the hearing that the relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account, pursuant to the Court’s Practice Note Class 1 – Development Appeals at [36], as follows:

Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. 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.

23. The Council’s bundle of documents includes approximately 45 objections from residents of the Macleay Regis, including an objection from the Board of Directors of the Macleay Regis Limited. These objections raise, in summary, the following issues:

• Noise impact of the proposal on apartments on the eastern side of the Macleay Regis;

• Privacy impact of the proposal, as individuals on the proposed roof terrace will be able to look directly into the living areas of apartments on the south-eastern corner of the Macleay Regis;

• The intrusion of light spill from the proposed terrace;

• The excessive size of the proposed terrace and the bulk of the shade structure and raised roof; and

• The impact of the proposal on the heritage significance of the contributory building.

24. In relation to the first limb of s 39A, at (a), the issue of the impact of the proposal on the amenity enjoyed by the residents of the Macleay Regis has been raised in these proceedings, in their objections. Therefore, the Council will need to demonstrate to the Court during the hearing that the amenity impact on the Macleay Regis, raised in the objections to the proposal, has been properly taken into account. Mr Cirillo will be able to be heard by the Court, on behalf of the residents of the Macleay Regis, in relation to both the amenity impact issue and the additional matters he raises in his report, pursuant to paragraph 36(iii) of the Court’s Practice Note Class 1 – Development Appeals. Again, the Council will need to demonstrate to the Court during the hearing that the matters raised by Mr Cirillo either do not apply to the proposal or have been or are capable of being complied with.

25. Importantly, in determining the matter, the decision of the Court is not a fait accompli as a result of the parties agreeing on the proposed consent orders; the Court is exercising the power under s 80 and considering the matters under s 79C of the EPA Act.

26. In relation to the second limb of s 39A, at (b), in the interest of justice or having regard to the public interest, the residents of the Macleay Regis have been given meaningful opportunities to be heard during the process of consideration of the development application by the Council and at the commencement of the conciliation conference and the residents have expressed in both writing and orally, the issue raised by Mr Cudlipp in his affidavit as well as other concerns. As stated by the Chief Judge in Morrison Design Partnership at [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’. In this matter, as confirmed by Mr Hale’s submission, it is the dissatisfaction of Macleay Regis Limited with Council’s decision to agree on the proposed consent orders that has prompted the application for joinder.

27. I am satisfied that the issues sought to be raised by the Macleay Regis Limited are likely to be sufficiently addressed in the proceedings and that the Court will not be deprived of meaningful assistance by not joining them as a party to the proceedings. Section 39A of the LEC Act is not engaged by the application of the Macleay Regis Limited and on that basis, the Macleay Regis Limited should not be joined as a party to the proceedings.

Orders

28. Accordingly, I make the following orders:

1. The notice of motion of Macleay Regis Limited dated 1 May 2015 is dismissed.

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Susan O’Neill

Commissioner of the Court

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Decision last updated: 08 May 2015