Lamar 18 Pty Ltd v Waverley Council
[2018] NSWLEC 1634
•07 December 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Lamar 18 Pty Ltd v Waverley Council [2018] NSWLEC 1634 Hearing dates: 27 November 2018 Date of orders: 07 December 2018 Decision date: 07 December 2018 Jurisdiction: Class 1 Before: Froh R Decision: The Notice of Motion is dismissed.
Catchwords: JOINDER: Application for joinder – Statutory tests Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245
Avalon Beach Property Pty Limited ACN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council [2017] NSWLEC 130Category: Procedural and other rulings Parties: Lamar 18 Pty Ltd (Applicant)
Waverley Council (Respondent)
Bram Page (Applicant on the motion for joinder)Representation: Counsel:
Solicitors:
J Reid (Applicant)
R White (Applicant on the motion for joinder)
Pikes & Verekers Lawyers (Applicant)
J Ede, Wilshire Webb Staunton Beattie (Respondent)
Dentons Australia (Applicant on the motion for joinder)
File Number(s): 2018/148717 Publication restriction: No
Ex TEMPORE Judgment
-
This matter came before me on a Notice of Motion filed 9 November 2018 and heard on 27 November 2018 which seeks the joinder of Mr Bram Page as a respondent to the Class 1 proceedings between Lamar 18 Pty Ltd and Waverley Council (the Motion). Mr Page and his wife are the owners of 22 Clarendon Street, Vaucluse, which is opposite the site the subject of the substantive proceedings, being 701-707 Old South Head Road, Vaucluse.
-
The affidavit of Ms Vanessa Walsh was read in support of the Motion.
-
Mr Page moves under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) which states that:
… the Court may … 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.
-
The proceedings are still in conciliation and it is common ground between all parties to this Motion that the Applicant and Respondent have reached an in principle agreement and if this Motion is unsuccessful will seek to enter into a s 34 agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act).
-
Although Mr Page is not a party to the proceedings, the Court understands that with the consent of all parties, he has been able to fully participate in the s 34 conciliation conference.
-
It has been put to me that Mr Page proposes to raise the following three contentions if he is joined to the proceedings:
View loss;
Insufficient information in respect of view loss; and
Not substantially the same development.
-
With respect of proposed contention 1 and 2, it is conceded by Mr Page that this issue is raised in the Respondent’s Statement of Facts and Contentions. However, it is now pressed as the Applicant and Respondent have reached an in principle agreement and he argues that there is no contradictor in the proceedings.
-
It has also been submitted to me that Mr Page wishes to raise a jurisdictional point being that the modification is not substantially the same development as the development for which the consent was originally granted and that the application should be refused in accordance with s 4.55(2) of the EPA Act.
-
This jurisdictional point has not been raised by the Council in its Statement of Facts and Contentions (SOFC).
-
It has been submitted that unless Mr Page is joined to the appeal, this jurisdictional point would neither be raised by the existing parties, nor considered by the Court. It was also submitted that even if the Court did raise this jurisdictional issue, there would be no contradictor and, therefore, the Court will have inadequate argument about the issue: Avalon Beach Property Pty Limited ACN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council [2017] NSWLEC 130 per Preston CJ at [10].
-
From the evidence and submissions currently before the Court, I do not believe that there is a sufficient basis for me to order joinder.
-
The first limb of the test for joinder is whether the issues proposed to be raised by the party seeking joinder are sufficiently addressed.
-
The two contentions that Mr Page proposes to raise in respect of view loss and insufficient information in respect of view loss fall squarely within the Council’s contentions. As such, I am satisfied that the view loss contentions that Mr Page proposes to raise are issues before the Court. Furthermore, throughout the s 34 process Mr Page has been given the opportunity to make submissions to the Commissioner and even participate in the s 34 conciliation conference.
-
With respect to the jurisdictional point that Mr Page proposes to raise, I make these observations. Any agreement entered into under s 34(3) of the Court Act can only be entered if the Commissioner considers the agreement to reflect “a decision that the Court could have made in the proper exercise of its functions”. This has always been the case and it means that if a Commissioner is presented with a s 34 agreement which she does not consider to accord with law, despite the parties’ agreement, the Commissioner is to refuse to make the agreement.
-
The recent decision is Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 also specifically states that the presiding Commissioner is to expressly consider her jurisdiction when entering into a s 34 agreement and to give reasons for her findings about the jurisdiction of the Court (Preston CJ at [201]).
-
Although this jurisdictional issue is not raised by the Council in the SOFC, it is important to note that it is an express obligation of the presiding Commissioner to consider and give reasons about any relevant jurisdictional issues. I am satisfied that this jurisdictional issue will be appropriately addressed and considered by the presiding Commissioner and that this issue is sufficiently addressed for the purpose of the test for joinder.
-
With respect to the submission that there is no contradictor to the proceedings as the Applicant and Respondent have reached an in principle agreement, I am of the view that Mr Page has been afforded a number of opportunities to put his views to the Council and the Commissioner. These circumstances all support the conclusion that the issues Mr Page proposes to raise are sufficiently addressed.
-
I also do not consider it necessary to join Mr Page based on the second limb: the interests of justice or the public interest.
-
Mr Page has had opportunities to raise his concerns and they have been adequately canvassed throughout the development assessment process including at the conciliation conference.
-
These all support the conclusion that Mr Page should not be joined.
-
The orders of the Court are that the Notice of Motion is dismissed.
……………………..
S Froh
Registrar of the Court
**********
Decision last updated: 10 December 2018
0
2
2