Jenkins v Leichhardt Council

[2000] NSWLEC 150

Reported Decision: 108 LGERA 426

Land and Environment Court

of New South Wales

CITATION:	Jenkins v Leichhardt Council [2000] NSWLEC 150
PARTIES:	APPLICANT: Jenkins RESPONDENT: Leichhardt Council
FILE NUMBER(S):	10191 of 2000
CORAM:	Bignold J
KEY ISSUES:	Practice & Procedure :- Application by resident objectors for limited participation in hearing of development appeal
LEGISLATION CITED:	Land and Environment Court Act 1979, s 38(2)
CASES CITED:	Ziatabari v Ku-Ring-Gai Council NSWLEC 139
DATES OF HEARING:	10/07/00
DATE OF JUDGMENT:	07/11/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr T Howard, Barrister SOLICITORS N/A RESPONDENT: Ms O'Hagan, Solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND Matter No . 10191 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 11 July 2000

JENKINS

Applicant

v

LEICHHARDT COUNCIL

Respondent

JUDGMENT

Bignold J:

1. This is a Notice of Motion filed on 4 July 2000, by a number of residents living in close proximity to No 9 Hart Street, Balmain, being the site of a proposed development (involving alterations and additions to an existing dwelling-house) which application has been refused by the Council and is the subject of a pending class one proceeding in this Court.

2. That proceeding which was commenced on 7 March 2000 involves an appeal pursuant to the Environmental Planning and Assessment Act 1979 (EP&A Act) s 97 against the Council’s deemed refusal of the development application is listed for hearing on 20 and 21 July 2000.

3. By the present Notice of Motion, the residents seek leave for limited participation at the hearing by being legally represented and by calling expert evidence of a Consultant Town Planner, Mr K Burrell, whose report was served on the parties yesterday in support of the Motion.

4. The Council consents to the Motion, but the Applicant opposes it.

5. The residents seek direct participation in the hearing because of the Council’s change in attitude to the proposed development from originally refusing development consent (this occurred following the commencement of the present proceedings) to currently contending for an outcome that would involve the grant of development consent subject to the imposition of conditions.

6. In furtherance of its current position in respect of the development application, the Council has been negotiating with the Applicant on the issue of appropriate conditions of development consent.

7. To date, those negotiations have not given rise to any negotiated settlement of the proceedings between the parties. At the present time, it appears that no such settlement will be forthcoming because apparently, the Applicant considers the conditions sought to be imposed by the council to be unacceptable.

8. However, there remains the possibility that the proceedings will be settled.

9. It is in these circumstances that the residents seek direct participation to present their case that the appropriate outcome of the proceedings should be the outright refusal of development consent.

10. If the parties were to achieve a settlement, the residents who have objected to the development proposal would, conformably to the Court’s established practice, be afforded the opportunity to be heard by the Court. In this respect, their participation could involve the giving of expert evidence, such as was permitted by the Court in the case of Ziatabari v Ku-Ring-Gai Council [NSWLEC 139].

11. Even if this were ultimately to be the position of the residents in the present proceedings, there is obvious advantage in their bringing forward at this stage, in advance of the hearing, the expert evidence they would wish the Court to receive and to consider. By doing so, there is no dislocation in the existing Court arrangements that the hearing of the proceeding occur next week.

12. However, as the present case stands, it has not reached the position that was known to exist when the Court determined the residents’ motion for participation in the Ziatabari case, namely, where the Council, having previously determined the development application by refusing its consent, had reached agreement with the developer that the appeal could be disposed of by consent orders, reflecting their agreement that development consent be granted subject to conditions.

13. Accordingly, the question to be determined is whether the residents should be given leave to participate in the hearing to contend for the outright refusal of development consent on the assumption that consent orders will not be presented to the Court by the parties, but that at the hearing, the Applicant will seek the grant of development consent and the Council will contend for the imposition of conditions on development consent which the Applicant opposes.

14. In determining this question, the Court in the exercise of its discretion, will give overriding consideration to the interests of justice, not only of the parties, but also of the resident objectors.

15. As I noted in Ziatabari, the task posed is a difficult one of adjusting or holding in proper balance all of the relevant interests which are apt to be competing with each other.

16. In the task of harmonising or balancing those competing interests, the commencing point for consideration must be the interests of the parties to the litigation because in a real sense it is their litigation, albeit litigation that is entirely founded upon the operation of the EP&A Act. It is this latter feature that also founds (although less obviously) the due consideration of the interests of the resident objectors.

17. At this very point, the parties divide—the Applicant opposing, but the Council supporting, the application by the residents for participation in the hearing.

18. The Council’s attitude in this respect is apparently a recognition of its changed position in respect of the pending proceedings. If the Council had adhered to its original decision to refuse development consent, it may be safely assumed that the present Motion would not have been brought by the residents. In this fundamental respect, I am entirely satisfied that it is because of the Council’s change of position that the residents have been motivated to seek for themselves direct participation in the proceedings to advance the case to which the Council had originally committed itself (doubtless to the knowledge and satisfaction of the residents).

19. The opposition raised by the Applicant to the Motion is also understandable. He has to deal with the case that the Council makes against him. Where the Council has changed its position in respect of the appeal, the Applicant submits that if (as is obviously now the case) he need not answer the case originally propounded by the Council (but since abandoned in favour of a middle course) he should not have to answer the Council’s original case, as now sought to be advanced by the residents.

20. The Applicant submits that it would be unfair to him to have to answer the Council’s current case and the residents’ separate case. Such unfairness might manifest itself in additional costs in having to prepare to meet the residents’ case, and in the hearing if it be extended by dint of the residents’ participation therein.

21. Finally, the Applicant submits that to permit the residents to participate in the proceedings is apt to open the floodgates to similar interventions by residents wishing to have direct participation in the hearing of other development appeals that require adjudication by the Court.

22. These submissions advanced by the Applicant must be carefully considered in the exercise of the Court’s discretion in terms of s 38(2) of the Land and Environment Court Act 1979.

23. Finally, in the balancing task, there is to be considered the interests of the residents. Although they are not given any express rights to participate in the hearing of a development appeal, both the EP&A Act and more especially, environmental planning instruments made thereunder, expressly recognise the public interest that is served and promoted by the opportunity for citizen and public participation in all aspects of the planning process. Under the EP&A Act, citizens have certain rights in the planning process. It is the existence of those rights that legitimise at least at the conceptual level, the “interest” sought to be advanced by the present Motion. That interest is consistent with the Court’s statutory function to determine development appeals by having regard, inter alia, to the “public interest”: vide the Court Act s 39(4).

24. Notwithstanding the existence of that interest, it is conventional wisdom that councils in determining development applications under the EP&A Act do so by giving due consideration to input and submissions made by the local citizenry. Such consideration is of course, but one, of the statutory heads of consideration that a consent authority must take into account when determining a development application: vide s 79C.

25. However, there is no paramountcy accorded to the interests of residents, and where under the EP&A Act, a council grants development consent, notwithstanding resident objection, the disappointed resident objectors have no recourse to any appeal rights to this Court.

26. On the other hand, where a council refuses development consent under the EP&A Act and the statutory right of appeal is exercised by the disappointed applicant, resident objectors frequently are called as witnesses in the council’s defence of the appeal, and invariably at the hearing the council tenders in evidence all written objections made to the development proposal.

27. In this last mentioned scenario, there is generally little or no occasion or need for a resident objector to seek to directly participate in the hearing of the development appeal. This is reflected in the experience of the Court.

28. However, occasionally, such a need arises when, as in the present case, the Council radically changes its position in respect of the development application from its original position of refusing consent to a later position of either negotiating a settlement with the applicant or advancing only a limited case at the hearing against the proposal ie by advocating the imposition of conditions on the grant of development consent.

29. In these circumstances, resident objectors are apt to be disappointed with the Council’s change of position and sometimes, such as in the present case, will seek for themselves to have direct participation in the hearing.

30. To date, in the Court’s experience, this has been but an infrequent occurrence, but where it has occurred, more often than not, some limited participation has been granted, in the interests of justice. That fundamental concept of the interests of justice, obviously governs the discharge by the Court of its statutory mandate to determine development appeals (see s 39(4) of the Court Act) and in furtherance of that ultimate mandate, it likewise informs the Court’s decision as to how it should utilise the procedural and ancillary faculty conferred by the Court Act s 38(2).

31. In the overall evaluation of the competing interests agitated in respect of the present Motion, I am satisfied that the limited participation sought by the residents is justified and that it can be achieved without inflicting any unfairness on the Applicant.

32. This is so, because upon analysis, there is nothing inherently unusual in the combined forces of the cases of the Council and of the residents that are likely to be advanced at the hearing. The combined effect is (i) that development consent should be refused and (ii) that if not refused, development consent should be granted subject to conditions sought by the Council.

33. Such an alternative case is commonly advanced by a council in defending a development appeal—namely, its primary case is to seek refusal of consent but its alternative case is to have conditions imposed on the grant of development consent.

34. The only difference in the present case is that the primary case is to be advanced by the residents and the alternative case is to be advanced by the Council and they are to be separately represented. This separate representation seems to be inevitable given the practical problems that would be likely to be encountered if they were commonly represented (a prospect that I have considered but ultimately have rejected).

35. That difference does not mean that there will be some consequent unfairness to the Applicant. The fear of duplication of the cases sought to be made against the development proposal or the fear that the Applicant’s case will encounter duplicated opposition, fails to appreciate that the cases against the proposal are truly alternative cases where each case is to be conducted by a different person.

36. Doubtless, the presiding Commissioner will adopt procedures at the hearing which will avoid duplication so as to ensure a fair, economical and efficient hearing of the respective cases advanced at the hearing.

37. Given the particular facts of this case, I do not think the Applicant’s prophecy of “opening the floodgates” will be fulfilled.

38. Even if the present case is perceived to extend the circumstances in which the Court is disposed to exercise its power under the Court Act s 38(2) beyond the boundary reached by previous decisions (eg as in Ziatabari), the result is unexceptional, being but a principled development of existing practice and principle.

39. For all the foregoing reasons, I make the following orders:
1. Pursuant to the Court Act s 38(2), the resident objectors, named in the Notice of Motion filed 4 July 2000, be granted leave to participate at the hearing of the proceedings fixed for 20 and 21 July 2000 by presenting a case for the refusal of development consent by the following means:-
(i) by legal representation;
(ii) by adducing expert evidence in the form of the Report by Kim Burrell;
(iii) by adducing lay evidence limited to two residents whose written statements are to be filed and served three days prior to the hearing; and
(iv) by cross-examining witnesses.

2. Such participation shall be undertaken in accordance with any procedural directions that may be given by the Presiding Commissioner in the interest of fairness and efficiency.