Backhouse v Northern Beaches Council

[2022] NSWLEC 1075

Land and Environment Court

New South Wales

Medium Neutral Citation:

Backhouse v Northern Beaches Council [2022] NSWLEC 1075

Hearing dates:

2 February 2022

Date of orders:

3 February 2022

Decision date:

03 February 2022

Jurisdiction:

Class 1

Before:

Froh R

Decision:

The orders of the court are:

(1) Mr Furlong’s motion for joinder is dismissed.

(2) No orders for costs.

Legislation Cited:

Environmental Planning and Assessment Act 1979

Uniform Civil Procedure Rules 2005

Land and Environment Court Rules 2007

Category:

Procedural rulings

Parties:

Antaine Seamus Furlong (Applicant for joinder)
Brent Backhouse (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
Matt Harker (Applicant for joinder)
Mark Seymour (Applicant)
Jonathon Ede (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant for joinder)
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2021/259508

Publication restriction:

No

Judgment

1. This Notice of Motion is an application for joinder made by Mr Furlong.

2. Mr Furlong seeks to be joined to the proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), or r 6.27 of the Uniform Civil Procedure Rules 2005, or to intervene in the proceedings and adduce lay and expert evidence, cross examine witnesses and make written and oral submission in relation to the issues raised in the Applicant for joinder’s draft Statement of Facts and Contentions (SOFC) which is exhibited to the affidavit of Peter Clarke sworn on 19 January 2022.

3. The substantive proceedings concern a DA for a knock down rebuild on a residential lot located at 53 Wheeler Parade, Dee Why.

4. Mr Furlong is the neighbour to the Applicant. His property is accessed by the driveway which runs alongside 53 Wheeler Parade, and over which the Applicant enjoys a right of carriageway.

5. The first issue before the Court, is whether to make an order under s 8.15(2) of the EPA Act. Section 8.15(2) of the EPA Act states:

(2) On 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 the person 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.

6. It has been put to me that Mr Furlong intends to raise two issues being the breach of the height standard with respect to the lift overrun and placement of the skylights. The second issue is the use of the driveway for pedestrian access to and from the subject development which he contends will have adverse safety impacts that have not been assessed by the parties.

7. I address each of these issues in turn.

8. My view is the issue of height is sufficiently addressed by Council’s contention 1 and its particularisation of that contention.

9. At contention 1 Council states:

“the DA should be refused as the proposed built form is in appropriate and disproportionate to the character of the area.”

10. Furthermore, the amended DA now before the court seeks consent for a development that is below the height limit for the area. As such I consider this issue to be sufficiently before the court and capable of being addressed.

11. I turn now to the access and safety contention proposed by Mr Furlong.

12. As previously set out in this decision, the Applicant currently enjoys a right of carriageway over the driveway of Mr Furlong. The driveway as currently constructed provides for both vehicular and pedestrian access, with the driveway having a staircase built into its centreline. Access to the subject development using the driveway is not proposed to be changed by this development application.

13. Furthermore, the Council specifically raises the issue of access and safety in its Statement of Facts and Contentions at contention 4 as does the Respondent at contention 4 of its Statement of Facts and Contentions in Reply.

14. My view is that the issue of safety and access is sufficiently raised by both parties and in my view does not require the joinder of Mr Furlong in order to be addressed by the Court.

15. It was submitted to me that as Mr Furlong is directly affected by use of his land by use of the driveway for pedestrian access to the subject development that it is in the interests of justice he be joined.

16. I do not agree, Mr Furlong’s land is currently for pedestrian access to the subject site. The proposed development does not alter that. As such, I do not believe it is in the interests of justice that he be joined and I decline to make order r 6.27 of UCPR. As set out earlier in this judgment, I do not consider Mr Furlong to be proposing to raise issues that are not already sufficiently raised before the court, nor do I consider it in the interests of justice that he be joined.

17. Mr Furlong has also sought an order to intervene in proceedings to adduce evidence, cross examine witnesses and make submissions in respect of the height and safety issues I have already set out. I do not consider it to be just, quick or cheap to allow Mr Furlong to intervene in the proceedings for these purposes for the reasons I have already set out and I decline to make such an order.

18. An application for costs was made by the Applicant, I only have the power to award costs if I consider it fair and reasonable to do so under r 3.7 of the Land and Environment Court Rules 2007.

19. It was put to me by the Applicant that Mr Furlong’s application for joinder was brought to further a private interest that has been the subject of negotiations between Mr Furlong and the Applicant. This was refuted by the Counsel for Mr Furlong.

20. Although I have not joined Mr Furlong to the substantive proceedings, I do not consider his Notice of Motion to have been brought improperly and, as such, I make no order for costs.

21. The orders of the court are:

1. Mr Furlong’s motion for joinder is dismissed.

2. No orders for costs.

…………………

Sarah Froh

Registrar of the Court

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Decision last updated: 10 February 2022