Harvey v Manly Council

[2015] NSWLEC 131

Land and Environment Court

New South Wales

Medium Neutral Citation:	Harvey v Manly Council [2015] NSWLEC 131
Hearing dates:	16 July 2015
Date of orders:	16 July 2015
Decision date:	16 July 2015
Jurisdiction:	Class 1
Before:	Moore AJ
Decision:	See [9]
Catchwords:	JOINDER APPLICATION
Legislation Cited:	Land and Environment Court Act 1979
Cases Cited:	Morrison Design Partnership Pty Ltd v North Sydney Council and Anor [2007] NSWLEC 802
Category:	Procedural and other rulings
Parties:	Karen Belcher (Application for Joinder) Jennifer Harvey (First Applicant) Ben Harvey (Second Applicant) Manly Council ( Respondent)
Representation:	Counsel: J Reid (First and Second Applicants) B Jackson (Respondent) M Seymour (Applicant for Joinder)   Solicitors: N/A Pikes & Verekers Lawyers (Respondent) Lawyers Chambers (Applicant for Joinder)
File Number(s):	10461 of 2015
Publication restriction:	No

EXTEMPORE Judgment

1. HIS HONOUR: The dispute that exists between the Harveys and Manly Council (the Council) is one of a comparatively confined nature as canvassed by the Statement of Facts and Contentions that was filed on 8 July 2015 by the Harveys, and in the Statement of Facts and Contentions in Reply, filed by the Council on 15 July 2015.

2. Ms Belcher, the Applicant for joinder under s 39A of the Land and Environment Court Act 1979 (the Court Act), seeks to go beyond those matters that are in dispute between the substantive Applicant and the Council concerning the setbacks of the first floor of the proposed additions and alterations.

3. In the affidavit of Karen Belcher of 2 July 2015 (read on the motion), at p 10, Ms Belcher’s town planner’s previous report, being a report of Mr Boston, sets out that Ms Belcher and her partner are prepared to accept a compromise setback outcome that is, in itself, an outcome that would be a compromise on the provisions that would otherwise apply if there were to be a necessity to meet the numerical controls set out in the Manly Development Control Plan.

4. Nonetheless, that which is proposed at p 10 of her affidavit through her consultant is a significantly more severe, as it were, position for the Applicants in the proceedings than that which is advanced by the Council, which is a side setback of 1,150 millimetres from the boundary, a significant compromise on the controls contained in the Development Control Plan.

5. Although the application for joinder is advanced by Mr Seymour on the basis of all three of the elements contained in s 39A of the Court Act, it is unnecessary for me to consider whether s 39A(b)(i) or (b)(ii) is satisfied, as I propose to grant joinder on the basis of s 39A(a) only. The matters to be considered in dealing with that issue were canvassed by the Preston CJ in Morrison Design Partnership Pty Ltd v North Sydney Council and Anor [2007] NSWLEC 802. The particular paragraphs to which Ms Reid has taken me to for the Harveys at p 371 of the report deal with the limbs under s 39A(b) rather than 39A(a).

6. The matters that are set out by his Honour as being relevant to be addressed in the first limb of s 39A are contained in paras 44 to 47 - essentially whether the issue that is sought, in this instance, to be pursued by Mr Seymour’s client can be adequately encompassed without joinder - I am satisfied, given that they are seeking to have a position that is:

1. First, within the Council’s controls, and

2. Second, stricter than the compromise advocated by the Council, and raises an issue that would not be sufficiently addressed during the course of the both conciliation conference and the subsequent hearing of the appeal,

that they cannot.

7. I have reached this conclusion having particular regard to the fact that there will not be any delay in the resolution of the matter given that it is set down for a conciliation followed by mandatory determination, if necessary, process pursuant to s 34AA of the Court Act on 24 and 25 August next, and there is no intention on behalf of Ms Belcher, once joined, to delay that process.

8. Equally, given the ordinary ebb and flow of matters that are dealt with pursuant to that section, it is unlikely, even if the conciliation process is unsuccessful (as indeed might well be a possibility given the joinder, but certainly by no means a necessary outcome), that there would be some need for a significant delay in the determinative part of the process. The Applicants in the substantive proceedings would not be disadvantaged as a consequence.

9. I therefore propose to order that Karen Belcher be joined as Second Respondent to Matter 10461 of 2015 and that, in addition to the directions that have already been made, I make the directions that are contained in the Short Minutes of Order dated 16 July 2015 handed to me by Mr Seymour which I have initialled and placed on the file.

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