Blackmore Design Group v Council of the City of Sydney

[2014] NSWLEC 1136

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blackmore Design Group v Council of the City of Sydney [2014] NSWLEC 1136
Hearing dates:	10 July 2014; reasons 11 July 2014
Decision date:	10 July 2014
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Notice of Motion dismissed
Catchwords:	PRACTICE AND PROCEDURE - Joinder - Application by neighbour seeking to be joined - Application to intervene
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 Morrison Design Partnership Pty Ltd v North Sydney Council (2008) 159 LGERA 361 Norfolk (Redfern) Pty Ltd v Sydney City Council [2012] NSWLEC 1012
Category:	Procedural and other rulings
Parties:	Donna May Bolinger (Applicant on motion) Blackmore Design Group (Applicant) Council of the City of Sydney (Respondent)
Representation:	Mr M Staunton (Applicant) Ms A Pearman (Respondent) Mr P Beazley, Beazley Singleton Lawyers (Applicant on motion) Mr T Sattler, Sattler & Associates (Applicant) Mr A Singh, City of Sydney (Respondent)
File Number(s):	10749 of 2013

Judgment

1. Blackmore Design Group (Blackmore) has appealed under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by the respondent Council of a development application D/2012/1584 for the conversion of an existing warehouse building addressing William Street to residential use and construction of a new apartment building with shared basement parking addressing Pitt Street, at 52-54 Pitt Street Redfern (the site). The part of the site at 52-54 Pitt Street is presently used as a car park.

1. Blackmore lodged its development application on 15 October 2012. The Class 1 appeal was lodged on 27 September 2013. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act), conducted by a different Commissioner, was held on site on 16 December 2013. The conciliation conference was subsequently terminated. On 16 April 2014 the matter was fixed for hearing on 10 and11 July 2014, with directions for provision of expert and other evidence. On 6 May 2014 the applicant was granted leave to rely on amended plans. On 19 June 2014 the timetable for filing an amended Statement of Facts and Contentions, and for expert conferencing and reports, was varied, and the hearing dates of 10 and 11 July 2014 confirmed.

1. On 9 July 2014 Ms Donna May Bolinger filed a Notice of Motion seeking to be joined as a party to the proceedings, or in the alternative, to be granted leave to intervene and appear in the proceedings, with that leave being limited to:

(a) being represented by counsel at the hearing for the purposes of tendering and objecting to evidence, making submissions, and cross examination of the other parties' experts on the issues of the proposed development's overshadowing and visual privacy (overlooking) impacts on the amenity of 56 Pitt Street Redfern;

(b) relying, at hearing, on the written expert opinion evidence;

(c) such other matters as the Court hearing the matter may allow.

1. The application was supported by an affidavit sworn by Ms Bolinger on 8 July 2014, in which she states that she objects to the impact on her home, the heritage listed end of row terrace; that she has been involved with this matter since 2010; that she has spent a lot of her own money over the years obtaining expert evidence, and initially engaged Ms Jennifer Hill as her expert in the earlier proceedings; that the impact on her property includes solar, privacy, acoustic, loss of amenity and potential undermining of the foundation and general damage to her property; and that her property was the first town hall of Redfern and is a heritage item.

1. The application for joinder was heard at the commencement of the hearing in Court after the site view on 10 July 2014. Ms Bolinger was cross examined on her supporting affidavit. The application was refused, and in order not to delay the hearing, I indicated that reasons would be provided later. These are those reasons.

1. Ms Bolinger owns 56 Pitt Street Redfern, which adjoins the southern boundary of the Pitt Street part of the site. Ms Bolinger was granted leave to intervene in an earlier appeal concerning the site, proceedings 10740 of 2011 (Norfolk (Redfern)Pty Ltd v Sydney City Council [2012] NSWLEC 1012), on the limited basis of matters relating to the overshadowing and visual privacy (overlooking) impacts of the development in the form then proposed. The decision of Morris C in that earlier appeal records that Mr Andrew Duggan, who provided town planning evidence on behalf of Ms Bolinger, provided an individual report and participated in a joint report with Ms Brennan, the town planning expert retained by the Council.

1. The site view on the morning of the first day of the hearing in this appeal included evidence from seven objectors, including Ms Bolinger. Ms Bolinger's evidence on site included historical and heritage issues as related to amenity; the history of 56 Pitt Street and the grape vine planted 130-140 years ago; the reduction or removal of her amenity and views of the streetscape; and concerns as to loss of sunlight. The view included the courtyard inside her property along the northern side of her house, a grape vine growing the side wall of the house, the living areas along the northern side of the house, and a former laundry building at the rear of the property adjoining the warehouse on the subject site.

1. Ms Bolinger was cross examined on her affidavit. Her evidence was that she had received notification of the hearing within two weeks of it being sent, and had known about the hearing for some months, and that she had discussed the application with her lawyer. Ms Bolinger agreed that she was aware of her rights, having intervened in the previous hearing. She agreed she had involved a heritage expert and a planning expert in relation to her concerns with the development, with submissions to the Council in 2012, however that did not relate to the plans in their current form. When questioned why she had waited until the afternoon before the hearing to make the application for joinder, Ms Bolinger stated that she had been told by the Council last week, in a meeting with other residents at the Council offices, that the current plans increase the FSR and therefore there was a planning aspect to her concerns; she had not filed the application last week because she had to prepare it. She has a report that has found errors in estimating solar impacts. Ms Bolinger agreed that geotechnical issues, and privacy and overshadowing, had always been part of her concerns.

1. Ms Bolinger's representative submitted that Ms Bolinger is the owner of the property that is most impacted by the proposed development; she has recently become aware of changes which will affect her property; and she wants the opportunity to be involved if the Council and Blackmore reach agreement. She wishes to have the opportunity to reply to matters that might be raised in the evidence. Ms Bolinger's representative clarified that she is seeking to make submissions, not to cross examine witnesses, to provide additional documents, being a report by Mr Andrew Duggan, shadow diagrams, and a letter from a heritage expert. Ms Bolinger's representative has not seen that latter document; the documents had not yet been provided to the parties and could be provided by the afternoon. In terms of discretion, Ms Bolinger is significantly impacted, and has knowledge of that impact, and can provide assistance, and as a matter of natural justice should be heard.

1. The Council neither supported nor opposed the application.

1. Blackmore opposed the application, submitting that there is no proper evidentiary basis for the making of either order, and that as a matter of discretion, the application should be refused. Ms Bolinger has had the level of involvement provided for by the legislation, including having been notified of the application, retaining experts who have made submissions to the Council, viewing of the amended plans and making further submissions, and the usual right of objectors in Class 1 appeals to tell the Court of her concerns. In relation to the issues referred to in paragraph 5 of her affidavit, the geotechnical issue is the subject of a proposed condition, and the other issues have been considered by the Council and the parties' experts. All the issues raised can be dealt with by those experts in their evidence, and there is nothing that Ms Bolinger could add that would not be sufficiently addressed by the six experts retained by the parties. Blackmore has not seen any of the reports, and it is not known whether they could be dealt with in the confines of the hearing time allocated, and it is likely that the hearing would need to be adjourned or extended. It is unfair on the applicant to bring the application so late. There is no need for a Double Bay Marina order because the experts can address the issues.

Consideration

1. Section 39A of the Court Act provides for joinder of parties in, among other things, appeals under s 97 of the EPA Act:

39A Joinder of parties in certain appeals

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.

1. The alternative basis for Ms Bolinger's application is the power conferred by s 38(2) of the Court Act, to allow persons to be heard on an appeal in order to provide meaningful assistance to the Court in what is generally referred to as a Double Bay Marina order after the name of the case in which such an order was first made (Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313). Section 38(2) provides:

38 Procedure

...

(2) In proceedings in Class 1... 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.

1. Section 39A specifies that the Court may only exercise the power to join a person as a party to these proceedings if it forms an opinion either 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 that it is in the interests of justice or the public interest that the person be joined as a party to the appeal. Similar considerations apply to the exercise of discretion to make any form of Double Bay Marina order: Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205, at [5] per Jagot J. The mere fact that the Court forms the opinion specified in s 39A is not sufficient, and as Jagot J noted at [6], the Court "... would take into account such matters as the delay in the application, the likely strength of the issues sought to be raised and any other issue of potential prejudice in the proceedings".

1. Considering first the requirements of s 39A(a) of the Court Act, the issues in the appeal as identified in the Council's Statement of Facts and Contentions include contentions relating to exceedance of the permitted floor space ratio (FSR); the form and architectural design of the infill building on Pitt Street; adverse impact on heritage including the Redfern Estate Heritage Conservation Area, the warehouse which is a contributory item, and the buildings on both sides of Pitt Street; overdevelopment on the site, including impacts on neighbouring properties; non-compliance with specific controls in the Sydney Development Control Plan 2012; and the public interest. Both parties have retained three experts, for the applicant Mr Robert Staas (heritage), Ms Larissa Brennan (planning) and Mr Peter Cantrell (urban design), and for the Council Ms Jennifer Hill (heritage), Mr Mark Shanahan (planning) and Mr Brian McDonald (urban design). Those experts have participated in conferencing, and joint reports addressing heritage issues, and planning and urban design issues, have been filed. The experts were present at the site view, and heard the evidence given by the objectors.

1. The issues proposed to be raised by Ms Bolinger, as identified in her affidavit and in submissions, fall within the areas of expertise of the planning, urban design, and heritage experts retained by the parties. Those issues have been raised by Ms Bolinger in her submissions to the Council during the course of its consideration of this application; those submissions have been considered by the Council in its assessment reports; and can be addressed by the experts retained by both parties in their evidence in the hearing of the appeal in addressing the contentions raised. The Court is also required by s 79C(1)(d) and (e) of the EPA Act to take into consideration matters raised in submissions and the public interest, which includes matters raised by objectors. I am not satisfied that the issues that Ms Bolinger would raise would not be likely to be sufficiently addressed if she were not joined as a party.

1. Considering the requirements of s 39A(b), I am not satisfied that it is necessary to join Ms Bolinger in the interests of justice. Ms Bolinger has been given opportunities to be heard through the process of consideration by the Council, including making submissions and providing reports of experts retained by her, and in the process of the Court's consideration of the appeal which has adopted the usual course in a Class 1 appeal of enabling objectors to give evidence on site including the opportunity for the view to include Ms Bolinger's property. The role such participation plays in the appeal process was outlined by Preston CJ in Morrison Design Partnership Pty Ltd v North Sydney Council (2008) 159 LGERA 361:

50 ... Meaningful community involvement can, of course, be beneficial in the development assessment process. It can provide members of the community with an understanding of what is happening in their area and how the proposed development may impact particularly on their interests; enable members of the community to participate by making submissions to the consent authority; inform the consent authority; and improve planning decisions.

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.

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.

1. In my view, Ms Bolinger has been provided an adequate opportunity to put forward the issues that concern her both as the owner of the adjoining property and as a member of the community, so that those issues can be addressed by the Council in its consideration and now by the Court on appeal.

1. I am not satisfied that it is necessary to join Ms Bolinger having regard to the public interest. The issues that she wishes to raise have been canvassed in the course of the Council's consideration of the application and will continue to be addressed in the hearing. I am not satisfied that the Court would be deprived of meaningful assistance on those issues if she were not joined. The Council is contesting the appeal, and is providing assistance in the form of the evidence to be provided by the experts it has retained.

1. I am not satisfied that the requirements of either s 39A(a) or (b) are met. Considering issues relevant to the exercise of discretion, the lateness of the application, the prejudice to Blackmore, and the possible need for adjournment or allocation of additional hearing time, would be relevant factors. Ms Bolinger is familiar with the Court processes, based on her intervention in the earlier appeal. The matter was set down for hearing on these two days some two months ago, and Ms Bolinger was, on her evidence, aware of those dates some time ago. I am not satisfied that the application could not have been made earlier than the afternoon before the hearing, at a time when it might have been possible for the experts which Ms Bolinger has consulted to participate in the joint conferencing process, as occurred in the previous appeal. I accept that there is the potential for prejudice to Blackmore if it cannot adequately respond to the additional information foreshadowed in the time allocated to the hearing. If the hearing has to be adjourned or extended, that would not be consistent with the facilitation of the just, quick and cheap resolution of the real issues in the proceedings as required by s56 of the Civil Procedure Act 2005.

1. I am not satisfied that this is a proper case to order the joinder of Ms Bolinger as a party to the proceedings. Considering the alternative application for a Double Bay Marina order, the intervention in the form as submitted by Ms Bolinger's representative is not, in my view, necessary to provide meaningful assistance on the issues to be determined. Those issues will be sufficiently addressed by the parties and the experts they have retained so that proper consideration can be given to them.

1. The application should be refused. Ms Bolinger's Notice of Motion included an order for costs, a matter in which I have no jurisdiction. The motion is dismissed.

Linda Pearson

Commissioner of the Court

Decision last updated: 14 July 2014