Fuse Architecture Pty Ltd v Georges River Council

[2024] NSWLEC 1294

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fuse Architecture Pty Ltd v Georges River Council [2024] NSWLEC 1294

Hearing dates:

28 May 2024

Date of orders:

31 May 2024

Decision date:

31 May 2024

Jurisdiction:

Class 1

Before:

Deputy Registrar Orr

Decision:

The Court orders:

(1) The Notice of Motion filed by The Owners – Strata Plan No 89161 on 10 May 2024, is granted.

(2) The Owners – Strata Plan No 89161 is joined as the second respondent to the proceedings pursuant to s 8.15(2)(a) and (b) of the Environmental Planning and Assessment Act 1979.

(3) The Owners – Strata Plan No 89161 is directed to file and serve its Statement of Facts and Contentions, by 4 June 2024.

(4) The s 34 conciliation conference on 7 June 2024 is confirmed.

Catchwords:

PRACTICE AND PROCEDURE – application for joinder – statutory tests – rights of carriageway – easements – intensification of use – joinder ordered

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15(2)

Land and Environment Court Act 1979, ss 34, 38(2)

Cases Cited:

Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195

Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802

Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256

North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20

Opera Properties Pty Ltd v Northern Beaches Council [2017] NSWLEC 1086

Pro-Vision Developments Pty Ltd v Ku-ring-Gai Municipal Council (2003) 131 LGERA 108; [2003] NSWLEC 226

Category:

Procedural rulings

Parties:

Fuse Architecture Pty Ltd (Applicant)
Georges River Council (Respondent)
The Owners – Strata Plan No 89161 (Applicant on the Motion)

Representation:

Counsel:
Ms M Lewis (solicitor) (Applicant)
Ms S Wilson (solicitor) (Respondent)
Mr R White (Applicant on the Motion)

Solicitors:
Bartier Perry (Applicant)
HWL Ebsworth Lawyers (Respondent)
Grace Lawyers (Applicant on the Motion)

File Number(s):

2023/451344

Publication restriction:

Nil

JUDGMENT

1. The Owners – Strata Plan 89161 (“the Intervener”) owns the common property at 21-35 Princes Highway, Kogarah, which is burdened by three existing rights of carriageway. The applicant in the proceedings, Fuse Architecture Pty Ltd (“Fuse Architecture”), seeks development consent for demolition of the existing dwelling and ancillary structures and construction of a ten-storey “shop top” housing development containing 37 residential apartments and two retail premises over three levels of basement parking on an adjoining site at 37-39 Princes Highway, Kogarah. The vehicular access to this development is proposed to be from Regent Lane at the rear by way of the rights of carriageway, provided through each of the three basement levels of the Intervener’s property.

2. By Notice of Motion filed 10 May 2024, the Intervener seeks leave to be joined as a party to these Class 1 proceedings brought by Fuse Architecture pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Georges River Council’s (“the Council”, at the direction of the Georges River Local Planning Panel) actual refusal of Development Application DA2021/0424 (“the DA”) lodged on 12 October 2021. The motion is supported by the Affidavit of Jessica Dorothy Bates affirmed 10 May 2024 and Exhibit JB-1 to that Affidavit.

3. The Intervener seeks first, to be joined as a party to the proceedings pursuant to s 8.15(2) of the EPA Act. Alternatively, if not joined as a party, to be permitted to be heard pursuant to s 38(2) of the Land and Environment Court Act 1979 (LEC Act), “Double Bay Marina” order.

4. Joinder of the Intervener is opposed by Fuse Architecture. The Council neither consents to nor opposes the joinder, but emphasises that resolution of this application requires some priority as a conciliation conference pursuant to s 34 of the LEC Act is listed on 7 June 2024.

5. For the reasons that follow, I am satisfied that the Intervener should be joined as a respondent to the proceedings pursuant to s 8.15(2) of the EPA Act.

Background

6. The three rights of carriageway (easements) were registered on the title of the Intervener’s common property at the same time the strata plan was registered and was a requirement of Council’s development consent for the Intervener’s site (condition 70).

7. The terms of the easements are as follows:

“Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass through the basement levels of the burdened Lot at all times to access to and from the basement levels of the said dominant tenement or any such part thereof, by vehicle only.” 

8. Of particular importance, it continues:

“The right to this easement does not commence until such time as the benefited Lots have been consolidated and redeveloped as a single parcel of land.”

9. The easements state that the person empowered to release, vary or modify the easement is “Kogarah City Council”, which was amalgamated in 2016 to form Georges River Council, being the respondent in the proceedings.

10. The Intervener has been an active objector to the development application proposal. Letters of objection were sent to Council on 10 December 2021 and 19 January 2023. The Intervener also raised their objections at the Georges River Local Planning Panel meeting held 20 July 2023. Relevantly, the Georges River Local Planning Panel stated in its reasons for refusal:

“The practical impacts of the vehicular access across the property (No 21-35 Princes Highway) have not been properly identified and addressed so that the proposed access arrangements are unsatisfactory. The applicant has not demonstrated any attempts to engage with No. 21-35 Princes Highway as part of identifying the impacts and to then address the impacts by attempting to agree on a variation of the existing easement for access (possibly together with a Positive Covenant) with No. 21-35 Princes Highway and the Council.”

11. The Intervener notes they have made attempts to engage with the Fuse Architecture about their concerns, however, these attempts have not been fruitful.

Legal principles

12. The legal principles governing how the Court deals with applications for joinder pursuant to s 8.15(2) of the EPA Act (which is in the same terms as the now repealed s 39A of the LEC Act) are well established. The power is facultative, and relief is discretionary: see Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 (“Morrison Design”).

13. Section 8.15(2) of the EPA Act provides:

(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.

14. Both Fuse Architecture and the Intervener agree the application of s 8.15(2) is a two-step process, firstly, requiring a determination of whether one of the limbs within s 8.15(2) is met and second, by operation of the words “the Court may”, a determination of whether, in the circumstance of the application, the Court ought to exercise its discretion to make such an order.

Proposed contentions

15. The Intervener asserts there is no contention in the Council’s Statement of Facts and Contentions filed 2 February 2024, which addresses the use or impacts of the use of the vehicular access. The Intervener seeks to raise five contentions in the proceedings that it submits are relevant and that will not be sufficiently addressed unless it is joined as a party. The Intervener handed up a Draft Statement of Contentions for consideration, setting out the issues it wishes to raise, namely:

1. intensification of the use of and works proposed;

2. inadequacy of the terms of the existing easements;

3. intensification of the use of the right of carriageway through the basement levels, giving rise to safety and amenity impacts;

4. intensification of the use of the right of carriageway through the basement levels, leading to additional burdens and costs; and

5. inadequate information in relation to the protection of the structural adequacy of the building as a result of the works proposed.

16. Relevantly, the Statement of Facts and Contentions does raise at contention 1, owner’s consent, and contention 10, the public interest, as follows:

“1. Owner’s Consent:

Owner's consent has not been provided by the adjoining property No 21 - 35 Princes Highway, Kogarah to undertake the required works on the breakthrough walls to facilitate vehicular access to the Site. Accordingly, consent cannot be granted to the DA.

…

10. Public Interest:

The DA is not in the public interest for the reasons set out in the Contentions above, and should be refused having regard to those matters and/or any other matters the Court finds determinative of the DA, including the submissions received during the notification period to the extent those submissions are consistent with these Contentions or otherwise found to be determinative.”

Will a further relevant issue be raised, that would not otherwise be sufficiently addressed?

17. The first proposed contention the Intervener seeks to raise, that it says should be considered but has not been raised and would not be likely to be sufficiently addressed in the proceedings were it not joined, is a contention relating to intensification of use, and consent for that intensification of use.

18. The subject DA proposes 33 carparking spaces, comprising 23 parking spaces for residents, five parking spaces for retail lot owners/occupiers and five visitor parking spaces.

19. In North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20, the High Court considered whether the consent of the owner of land over which a right of carriageway existed was required to give owners consent for development on another site that benefited from that right of carriageway:

“The development application in the instant case is for consent only to a development to be carried out on the Club site. The development application relates solely to the Club site. The use of the Century Plaza land to give access to the Club site is an existing use and, unless that use be intensified, no question of consent to a development of the Century Plaza land will arise.” (at [18]).

20. The Intervener submits that as the easements presently provide no vehicular access, it would therefore necessitate an intensification of the use of the right of carriageway to increase vehicular access to facilitate the access of 33 vehicles. The Intervener submits this constitutes a proposal in the application for intensification of use of the existing right of carriageway for which consent has not been sought, and in respect of which no contention has been raised in the Council’s contentions.

21. The Intervener argues their proposed first contention is distinct from the Council’s owners’ consent contention. The Council’s particularisation of that contention is only in respect of “the required works on the breakthrough walls”, not the intensification of use. The Intervener submits that because an intensification of the use is necessary by reason of the DA, and given this issue is not raised in the Council’s contentions, it is an issue that would not be raised or sufficiently addressed if they were not joined as a party to the proceedings.

22. The Intervener sought to rely on Opera Properties Pty Ltd v Northern Beaches Council [2017] NSWLEC 1086 (“Opera Properties”), which it says is analogous to the present proceedings. The intensification of the use in that matter was as a result of the use of a right of carriageway increasing from servicing six dwellings to 62 dwellings.

23. Conversely, Fuse Architecture is of the view Opera Properties is not analogous to the subject proceedings, as there are currently 84 lot owners in the Intervener’s strata plan that use the Intervener’s basement level for vehicular access and parking from Regent Lane, along with several visitor parking spaces. It is Fuse Architecture’s submission that the increase to facilitate vehicular access for an additional 33 carparking spaces from the existing 84, is not sufficient to constitute an intensification.

24. Fuse Architecture is of the view it has a lawful right to use and access the land in accordance with the terms of the easements, as such, development consent is not sought nor required to access the Intervener’s land, and in any event, the question of owners’ consent is already raised by the Council’s contention 1.

25. While the overarching theme of owners’ consent is considered by the Council’s contention 1, I consider that the intensification of the use is an arguable point, and the development consent for that use that raises a distinct jurisdictional issue. For that reason, I am of the opinion there is an issue, that is able to be raised by the Intervener, not raised by the Council, that would not be likely to be sufficiently addressed if the Intervener were not joined as a party to the proceedings.

26. The next relevant contention sought to be raised by the Intervener is the fifth proposed contention, in relation to insufficient information regarding the proposed works to adequately protect the structural integrity of the Intervener’s land as a result of the breakthrough walls to facilitate vehicular access to Fuse Architecture’s site.

27. If joined, the Intervener says that it would then be able to lead evidence of a structural engineer to satisfy the adequacy of any works in maintaining the structural integrity of their building, which is required to facilitate any and all of the six proposed “breakthrough” walls, being two on each basement level, that will physically allow the access afforded by the easements. The Intervener submits that this information would not otherwise be readily available in the proceedings.

28. Fuse Architecture submits that the structural integrity of the Intervener’s building is a matter about which the Intervener is to inform itself, particularly in circumstances where it is burdened by the easement. In any event, it says a Geotechnical Study, prepared by Morrow Geotechnics formed part of the Class 1 Application.

29. In oral submissions, the Intervener raised a question as to the relevance of a geotechnical study in providing evidence on the structural adequacy of the Intervener’s building, particularly where there are no details about the location or dimensions of the proposed breakthrough walls.

30. For the reasons given by the Intervener, I am of the opinion that this proposed fifth contention raises an arguable point.

31. I am satisfied by the first and fifth proposed contentions that the Intervener is seeking to raise issues of the intensification of use and the inadequate information regarding the structural integrity of its site, caused by the works required to facilitate the easement access, that ought to be considered in relation to the subject appeal, that would not be likely to be sufficiently addressed if the Intervener were not joined as a party, and these are sufficient reasons to satisfy the first limb of s 8.15(2).

Other issues

32. There were a few other contentions raised by the Intervener in relation to the inadequacy of the terms of the easements and flow on contentions, namely, the amenity and safety, additional burdens and costs consequences of the intensification of the use that are not addressed by a contention raised by the Council.

33. Fuse Architecture argues that these proceedings are not the appropriate forum in which the Intervener should seek to vary or modify the terms of the easements. Further, that a number of the particulars in these contentions are not relevant to the Court’s determination of the subject merit appeal, referring to the decision of Pain J in Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 at [36].

34. The Intervener in turn, submits that but for the proposed DA the subject of the proceedings, it would not otherwise be required to seek to vary the terms of the easements.

35. I accept Fuse Architecture’s submission that there are a number of particulars in these other contentions that are arguably not relevant to the Court’s determination of the relevant appeal or the present application for joinder, while they are relevant to the potential for adverse effects on the property rights on the Intervener. However, I do not need to deal with those particulars as I have been otherwise satisfied of s 8.15(2)(a) in relation to the first and fifth proposed contentions.

Would an order for joinder be in the interests of justice or public interest?

36. As to the second limb of s 8.15(2) of the EPA Act, Fuse Architecture submits that joinder would not be in the interest of justice or the public interest. Fuse Architecture notes the public interest is already raised in Council’s contention 10, which makes reference to the submissions received by Council during the notification period.

37. The Intervener submits it is in the interests of justice pursuant to s 8.15(2)(b)(i) that they be joined as a party to the proceedings in circumstances where the proposed DA affects their property rights. In Pro-Vision Developments Pty Ltd v Ku-ring-Gai Municipal Council (2003) 131 LGERA 108; [2003] NSWLEC 226, Lloyd J held at [24]:

“…It would be unthinkable, for example, if an application were made under s 89 of the Conveyancing Act to release, vary or modify an easement, if the owners of the land, having the benefit or burden thereof were not to be afforded the opportunity of becoming parties. It would be equally unthinkable that, where there is a possibility that the Court might release, vary or modify the easement pursuant to its powers under s 39(2) of the Court Act, those whose property interest may be affected should not be afforded the opportunity of being joined as parties.”

38. For the reasons articulated by the Intervener, I accept it is in the interests of justice pursuant to s 8.15(2)(b)(i) of the EPA Act, to afford the Intervener the opportunity to be joined as party to proceedings where the use and enjoyment of their property rights are likely able to be affected.

39. Conversely, I cannot accept that it would be in the interests of justice to preclude the Intervener from being afforded the opportunity of being joined as a party, in circumstances where within these proceedings, at either a conciliation conference and/or hearing, the existing parties will confer about, or seek the Court adjudicate matters that have the ability to directly, and adversely, affect the property rights of the Intervener.

40. For these reasons, both s 8.15(2)(a) and (b)(i) of the EPA Act have been met, sufficient to warrant an order for joinder, subject to discretion.

Discretion

41. I turn then to the question of discretion and the principles I must consider in the exercise of my discretion to warrant an order for joinder, namely: (i) limiting the number of expert witnesses on any issue to prevent duplication of evidence, (ii) a written objection may be sufficient to bring the issues before the Court and, (iii) balancing the need for efficiency with the need to have all relevant matters before the Court, as summarised in Michael Suttor Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1256.

42. Fuse Architecture argues that in balancing efficiency, the Intervener has already provided two written letters of objection that are able to raise their concerns, and they are still able to make submissions as an objector to the proceedings. It also says in seeking to limit the number of expert witnesses on any issue, the Court ought not exercise its discretion.

41. The Intervener argues discretion ought to be exercised in their favour as they are “no ordinary third party objector”: Opera Properties at [25], and the ability for them to raise contentions not already raised and lead evidence to address those issues that otherwise would not be addressed does not lead to inefficiency nor a duplication of expert evidence.

42. In the present circumstances, I am of the view the Intervener is seeking to be joined prompted by more than a “mere dissatisfaction”: see Preston CJ in Morrison Design at [53].

43. The easements do not exist in a vacuum and the Intervener raises more than simple concern about the adverse effect the proposed DA could potentially have on their property rights, including the use and enjoyment of their land. I accept they are more than an “ordinary objector” and ought to be afforded the opportunity to participate in the proceedings. For these reasons, I am satisfied to exercise my discretion to order the Intervener be joined as a party.

44. I am of the view that there is no prejudice to the scheduled s 34 conciliation conference as the Intervener confirms they are prepared to attend and meaningfully participate. To that end, the Intervener should file a Notice of Appearance forthwith and in order to assist the parties preparation for the conciliation, I have included a direction for the Intervener to file its Statement of Facts and Contentions.

Orders

47. The Court orders:

1. The Notice of Motion filed by The Owners – Strata Plan No 89161 on 10 May 2024, is granted.

2. The Owners – Strata Plan No 89161 is joined as the second respondent to the proceedings pursuant to s 8.15(2)(a) and (b) of the Environmental Planning and Assessment Act 1979.

3. The Owners – Strata Plan No 89161 is directed to file and serve its Statement of Facts and Contentions, by 4 June 2024.

4. The s 34 conciliation conference on 7 June 2024 is confirmed.

…………………..

E Orr

Deputy Registrar of the Court

**********

Decision last updated: 31 May 2024