Markham Real Estate Partners Pty Ltd ATF M7 Property Trust v Council of the City of Sydney

[2023] NSWLEC 8

Land and Environment Court

New South Wales

Medium Neutral Citation:

Markham Real Estate Partners Pty Ltd ATF M7 Property Trust v Council of the City of Sydney [2023] NSWLEC 8

Hearing dates:

13 February 2023

Date of orders:

16 February 2023

Decision date:

16 February 2023

Jurisdiction:

Class 1

Before:

Moore J

Decision:

See orders at [135] and [136] and directions at [137]

Catchwords:

REMOVAL APPLICATION ‑ Applicant applies for consent for designated development ‑ submitter lodges objection ‑ Applicant appeals to Court against deemed refusal of development application ‑ submitter notifies Registrar exercising right to be a party to the proceedings ‑ Registrar records submitter as Second Respondent to Applicant's appeal ‑ Applicant files Notice of Motion seeking to have Second Respondent removed ‑ Applicant alleges notification to Registrar made after the expiry of the permitted statutory time period for such notification ‑ two possible dates when Council might be taken to have notified the submitter of the Applicant's appeal ‑ Applicant relies on earlier date for the commencement of the statutory period ‑ submitter relies on the later date for the commencement of the statutory period ‑ position advanced by the Applicant correct ‑ submitter’s notification to the Registrar made after the expiry of the statutory period ‑ administrative action taken by Registrar based on (incorrect) assumption conveyed by submitter ‑ appropriate to remove the submitter as the Second Respondent to the proceedings.

JOINDER APPLICATION ‑ submitter applies to be joined as party to the proceedings ‑ submitter advances ten contentions proposed to be raised if joined ‑ consideration of whether any of the submitter’s proposed contentions raise matters which would otherwise not be sufficiently addressed - consideration of Council’s contentions ‑ submitter’s contentions different from those raised by the Council - one of the submitter’s contentions potentially warrants joinder as a party ‑ Applicant raises discretionary issues against joinder - Applicant's discretionary issues do not warrant rejection of joinder application ‑ submitter joined as Second Respondent based on identified contention ‑ once joined, submitter is a party for all purposes ‑ joinder ordered

COSTS ‑ Applicant seeks order for costs of successful motion to remove submitter ‑ Council takes active role in supporting the submitter’s case resisting removal ‑ Applicant opposes submitter’s application to be joined ‑ appropriate costs outcome that each party bear their own costs of the hearing of the two motions unless some alternative costs order sought within 14 days of the date of the dispositive orders resolving the two Notices of Motion

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.12 and 8.15

Environmental Planning and Assessment Regulation 2021

Land and Environment Court Act 1979, ss 34 and 38

Local Government Act 1991

Strata Schemes Management Act 2015, s 103

Uniform Civil Procedure Rules 2005, r 6.29

Cases Cited:

Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313

Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802

Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66

Category:

Procedural rulings

Parties:

Markham Real Estate Partners Pty Ltd ATF M7 Property Trust (Applicant)
Council of the City of Sydney (First Respondent)
The Owners ‑ Strata Plan No 70335 (Second Respondent/Applicant for Joinder)

Representation:

Counsel:
Mr I Hemmings SC (Applicant)
Mr A Singh, solicitor (Respondent)
Dr J Smith, barrister (Second Respondent/Applicant for Joinder)

Solicitors:
Hones Lawyers (Applicant)
Council of the City of Sydney (Respondent)
Macpherson Kelly (Second Respondent/Applicant for Joinder)

File Number(s):

222973 of 2022

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The Applicant's appeal

The two Notices of Motion

Introduction

The Objector

Representation

Relevant statutory provisions

Introduction

The EPA Act

The Regulation

The UCPR

The Court Act

The Civil Procedure Act

The Strata Schemes Management Act

The evidence

The affidavit evidence.

The documentary evidence

My sequence of decision‑making

The Applicant's Notice of Motion

Introduction

The two letters critical to the Applicant's motion

The Applicant's position

The Council's submissions

The Objector’s position

The Applicant's submissions in reply

Consideration

The Objector’s Notice of Motion

Introduction

The submissions for the Objector

The submissions for the Applicant

The Objector’s reply submissions

Consideration

Introduction

The operational arrangement of the Applicant's moorings

The Council’s “insufficient information” contention

Delay

The argument founded on s 103 of the Strata Schemes Management Act

The lease and the associated deed

Other matters proposed to be raised by the Objector

The effect of joinder

Costs

Orders

Directions

Judgment

Introduction

1. This decision deals with two Notices of Motion arising out of Class 1 merit appeal proceedings concerning a development application made by Markham Real Estate Partners Pty Ltd ATF M7 Property Trust (the Applicant) to the Council of the City of Sydney (the Council). That which is the subject of the Applicant's proposed development is an area of the waterway at Walsh Bay located between Piers 23 and 23A on the western side of that waterway. The Owners Corporation of Strata Plan 70335 (the Objector) was made the Second Respondent to the Class 1 proceedings by administrative action of the Court’s Registrar in December 2022 in response to a letter from the Objector dated 13 December 2022 purporting to exercise its rights pursuant to s 8.12(3) of the Environmental Planning and Assessment Act 1979 (the EPA Act).

2. The Applicant's proposed development is classified as “designated development”. As a consequence, special provisions in s 8.12 of the EPA Act are engaged. These provisions set out, depending on the particular circumstances arising if the designated development application becomes subject (or potentially subject) to proceedings in this Court, what additional rights potentially accrue to a submitter where the submission has been made during the relevant period nominated public submissions (as is here the position with the Objector’s submission to the Council objecting to the Applicant's proposed development).

The Applicant's appeal

3. The Applicant's Class 1 appeal was commenced on 29 July 2022 against the deemed refusal by the Council of its development application. As is conventional in Class 1 merit appeals, the proceedings were referred to a commissioner (Dickson C) for the purposes of a conciliation conference to be held pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act). That conciliation conference was conducted on 14 November 2022 and has been adjourned until 20 February 2023 to enable the two Notices of Motion addressed in this decision to be determined.

4. It is to be noted that, as at the date of the conciliation conference, the two parties to the Class 1 appeal were the Applicant and the Council, with the joinder of the Objector as the Second Respondent only taking place by the Registrar's administrative action in December 2022 - an action undertaken in response to the Objector’s application letter dated 13 December 2022, purportedly made pursuant to s 8.12(3) of the EPA Act.

The two Notices of Motion

Introduction

5. On 9 December 2022, the Objector filed a Notice of Motion in the proceedings seeking, pursuant to s 8.15(2) of the EPA Act, that the Objector be joined as the Second Respondent to the proceedings. The terms of the orders sought in that motion were:

1 That the Owners ‑ Strata Plan No. 70335 be joined as a party to these proceedings as the second respondent, pursuant to section 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW).

2 Further and in the alternative, that The Owners ‑ Strata Plan No. 70335 be permitted to adduce evidence on amenity impacts, visual impacts, noise impacts and navigational safety, cross examine witnesses and make submissions in these proceedings pursuant to sections 38(2) and 38(4) of the Land and Environment Court Act 1979 (NSW).

3   Such further or other orders as the Court sees fit.

6. For the purposes of later discussion, and in order to reflect the order in which the Notices of Motion were considered at the hearing before me on 13 February 2023, I will refer to the Objector’s Notice of Motion as Motion A.

7. On 16 December 2022, the Applicant filed a Notice of Motion seeking an order pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (the UCPR) that the Objector be removed as the Second Respondent.

8. The orders sought in this Notice of Motion were in the following terms:

1 Pursuant to r.6.29 of the Uniform Civil Procedure Rules the Owners Corporation of Strata Plan 70335 (OC) being removed as a party from these proceedings.

2   The OC pay the Applicants costs of this Notice of Motion.

3   Such other or further orders as this Honourable Court sees fit.

9. For the purposes of the following discussion, this motion was identified as Motion B, as it was the second motion addressed at the hearing on 13 February 2023.

The Objector

10. It is to be observed that the Objector holds a lease over the element of the seabed and its superjacent waters immediately to the west of Pier 23 at Walsh Bay. Whilst all the members of the Objector are members of the Owners Corporation of premises in Pier 23 Walsh Bay, not all the members of the Owners Corporation of Pier 23 Walsh Bay are members of the Objector (a matter which may arise in my consideration of matters requiring to be addressed to determine Motion A).

Representation

11. For the purposes of both motions, Dr J Smith, barrister, represented the Objector and Mr I Hemmings SC represented the Applicant. The Objector and the Applicant played active roles on each of the motions.

12. Mr A Singh, solicitor, appeared for the Council on both motions. It is to be noted that, with respect to the argument on Motion A, Mr Singh did not play an active role on behalf the Council. However, with respect to Motion B, Mr Singh did play an active role, making oral submissions and providing written submissions in support of the position advanced on behalf of the Objector, namely, that the Objector had validly notified the Registrar within time as required by s 8.12(3) of the EPA Act.

Relevant statutory provisions

Introduction

13. Two provisions of the EPA Act are earlier mentioned and are relevant to these two Notice of Motion determinations. It is also appropriate to note the terms of r 6.29 of the UCPR, the rule that provides the foundation for the relief sought by the Applicant in Motion B.

14. In addition, Mr Hemmings took me to two clauses in the Environmental Planning and Assessment Regulation 2021 (the Regulation) as examples of what he submitted were relevant templates arising if there were to be enumerated and prescriptive matters arising out of communication provisions which would otherwise be mandated by provisions of the EPA Act.

15. Two provisions of the Land and Environment Court Act 1979 (the Court Act) require to be noted. One provision of the Civil Procedure Act 2005 (the Civil Procedure Act) is also engaged, I am satisfied, for the consideration of costs issues arising from these two Notices of Motion.

16. Finally, a provision of the Strata Schemes Management Act 2015 (the Strata Schemes Management Act) was raised in oral submissions on behalf of the Applicant. The terms of that provision are later set out.

The EPA Act

17. As earlier noted, the first provision of this legislation is s 8.12, a provision which is, relevantly, in the following terms:

8.12   Notice of appeals to be given and right to be heard (cf previous s 97A)

(1)   The following are entitled to be given notice of an appeal made under this Division—

(a)   an Objector, in the case of an appeal by an Applicant concerning an application for development consent in respect of which the Objector has a right of appeal under this Division,

(b)   …,

(c)   …,

(d)   ….

(2)   Any such notice of appeal is to be given by the relevant consent authority.

(3)   Anyone who is given any such notice of appeal is, on application to the Court within 28 days after the notice is given, entitled to be heard at the hearing of the appeal if not already a party to the proceedings.

(4)   ….

18. The second provision is s 8.15, a provision which is, relevantly, in the following terms:

8.15   Miscellaneous provisions relating to appeals under this Division

(1)   …

(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.

(3)   …

(4)   …

(5)   …

The Regulation

19. It is not necessary to set out the terms of the two clauses of the Regulation to which reference was made as examples of lists of mandated topics required to be addressed in satisfaction of an obligation created by the EPA Act as the principal legislation. It is sufficient, for present purposes, to note that those clauses in the Regulation set out, in each instance, a compendious list of matters required to be incorporated in the relevant notice satisfying the statutory provision.

The UCPR

20. The terms of the rule pursuant to which the Applicant seeks to have the Registrar’s administrative action recognising the Objector as the Second Respondent of the proceedings is r 6.29. That rule is in the following terms:

6.29   Removal of parties by order

The court may order that a person—

(a)   who has been improperly or unnecessarily joined, or

(b)   who has ceased to be a proper or necessary party,

be removed as a party.

The Court Act

21. The first provision of the Court Act engaged for consideration is s 34, the provision creating the framework for the carrying out of conciliation conferences by which a commissioner of the Court seeks to assist the parties to proceedings to resolve the matters that are in dispute between them. The relevant elements of this provision arising in the present circumstances are in the following terms:

34   Conciliation conferences

(1)   If proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction, the Court—

(a)   may arrange a conciliation conference between the parties or their representatives, with or without their consent, and

(b)   if it does so, must notify the parties or their representatives of the time and place fixed for the conference.

(1A)   …

(2)   …

(3)   If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a)   must dispose of the proceedings in accordance with the decision, and

(b)   must set out in writing the terms of the decision.

(4)   …

(5)   …

(6)   If satisfied that there is a good reason to do so, the Commissioner may adjourn the conciliation conference to a time and place fixed in consultation with the Registrar.

(7)   …

(8)   …

(9)   …

(10)   …

(10A)   …

(10B)   …

(11)   Subject to subsections (10) and (12)—

(a)   evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and

(b)   a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.

(12)   Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document.

(13)   …

(14)   …

22. The second provision of the Court Act requiring to be noted is s 38, the provision dealing, here, relevant, with procedural matters in Class 1 development appeals, this being the nature of the proceedings commenced by the Applicant. The relevant elements of this provision in the following terms:

38   Procedure

(1)   …

(2)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, 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.

(3)   …

(4)   …

(5)   …

The Civil Procedure Act

23. As it is relevant to the position concerning costs outcomes potentially arising from these interlocutory Notices of Motion, it is appropriate to set out the terms of s 98(1) of the Civil Procedure Act. This provision is in the following terms:

98   Courts powers as to costs

(1)   Subject to rules of court and to this or any other Act—

(a)   costs are in the discretion of the court, and

(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   …

The Strata Schemes Management Act

24. Finally, the provision of the Strata Schemes Management Act that was raised in submissions on behalf of the Applicant is set out below:

103   Legal services to be approved by general meeting

(1)   An owners corporation or strata committee of an owners corporation must not obtain legal services for which any payment may be required unless a resolution approving the obtaining of those services is passed at a general meeting of the owners corporation.

(2)   An owners corporation or strata committee may obtain legal services without obtaining approval under this section if—

(a)   it is of the opinion that urgent action is necessary to protect the interests of the owners corporation, and

(b)   the cost of the legal services does not exceed $10,000 or another amount prescribed by the regulations for the purposes of this subsection.

(3)   Approval under this section is not required for the following—

(a)   to obtain legal advice before commencing legal action,

(b)   to take legal action to recover unpaid contributions, interest on unpaid contributions or related expenses,

(c)   to take any other legal action prescribed by the regulations for the purposes of this section.

(4)   A failure by an owners corporation or the strata committee of an owners corporation to obtain an approval under this section does not affect the validity of any proceedings or other legal action taken by the owners corporation.

(5)   In this Division—

legal services includes obtaining legal advice and taking legal action.

25. It is to be noted that the amount in s 103(2)(b) has been increased by the regulations made under this Act to $15,000 (however, this plays no role in the matters I am required to determine arising out of these two Notices of Motion).

The evidence

The affidavit evidence.

26. The affidavit evidence on behalf of the Applicant was given by Ms Serafina Carrington, a solicitor employed by the Applicant's legal representatives. Her affidavit was dated 16 December 2022. A range of documents were annexed to her affidavit.

27. For the Objector, three affidavits were read:

1. Two affidavits from Ms Emma Fleming, a solicitor employed by the Objector’s legal representatives. The first of Ms Fleming's affidavits was dated 9 December 2022 and was filed in support of Motion A. The second of her affidavits was dated 3 February 2023; and

2. An affidavit from Mr Peter Canaway, the Chair of the Objector’s Strata Committee. Mr Canaway's affidavit was dated 10 February 2023. Relevantly, it annexed redacted copies of minutes of relevant meetings of the Strata Committee of the Objector, with the unredacted portions of those minutes being matters relating to issues in contention arising from the two motions.

28. The Council read an affidavit from Ms Reinah Urqueza, a Senior Planner employed by the Council. Ms Urqueza was the nominated contact officer identified in the Council’s letter of 17 August 2022 (the text of which is later set out) as relevant to satisfaction or otherwise of the requirements of s 8.12(3) of the EPA Act. A number of documents were annexed to Ms Urqueza's affidavit.

29. No objections were raised to any of the affidavits. It is also to be noted that none of those who deposed affidavits were required for cross‑examination.

The documentary evidence

30. The documentary evidence on behalf of the Objector comprised:

1. A bundle of documents was exhibited to the first affidavit of Ms Fleming. This bundle was tendered without objection. It became Exhibit A;

2. Exhibited to Ms Fleming's second affidavit was a further bundle of documents. Only one element of this bundle was tendered, this being the Objector’s proposed Statement of Facts and Contentions upon which it would seek to rely if the outcome of the combined determination of the two Notices of Motion resulted in the Objector remaining/being joined as the Second Respondent to the proceedings. This proposed Statement of Facts and Contentions became Exhibit B; and

3. The Council’s Statement of Facts and Contentions became Exhibit C.

31. The documentary evidence on behalf of the Applicant comprised:

1. Two folders of documents (these becoming Exhibits 1 and 2);

2. The Applicant’s Statement of Facts and Contentions in Reply dated 5 October 2022 became Exhibit 3; and

3. Two sheets of A3 plans (DA 24 and DA 25), which were “without prejudice” plans which had been provided by the Applicant to the Council for the purposes of the conciliation conference conducted by Dickson C in November 2022. These plans became Exhibit 4.

32. It is to be noted that Dr Smith objected to the tender of Exhibit 4 on two separate bases. The first was that the tender was in breach of s 34(11) of the Court Act as it was disclosing material which was otherwise confidentially provided during the course of the conciliation conference. As I understood his objection, it was raised on the basis that his client was now a respondent to the proceedings and was entitled to the protection of that statutory provision.

33. I rejected this basis for objection on the ground that, at the time of the conciliation conference in November 2022, the Objector was not the Second Respondent to the proceedings and that the confidentiality arising from s 34(11) of the Court Act applied to the conciliation conference proceedings of 14 November 2022 only in the hands of those who were the parties to the proceedings as at that date. As Mr Singh had indicated no objection to the tender of Exhibit 4 (being a position in satisfaction of s 34(12) of the Court Act), questions of confidentiality no longer arose.

34. The second basis for Dr Smith’s objection was that there had been a pre‑trial direction setting a timetable for the filing and serving of evidence and that the plans in Exhibit 4 had not been so filed and served.

35. I rejected that objection as the plans were responsive to oral submissions which Dr Smith had made to me during the course of his submissions on Motion A. Indeed, although it was not necessary for me to rely on this is a separate basis for rejection of his objection, the plans were also tendered in response to questions from me to Mr Hemmings as to the proposed operational layout of the Applicant's development proposal.

36. In this context, I note that I am satisfied that no issues of procedural unfairness arose and that my admission of the evidence was entirely consistent with s 38(2) of the Court Act earlier set out.

37. At the suggestion of the parties, I also ruled that evidence on one motion would be evidence in the other to the extent relevant.

My sequence of decision‑making

38. At the commencement of the hearing, I had indicated to the parties that I proposed that Motion A be heard before Motion B because, if it appeared likely that time would permit it, if I gave an extemporaneous decision which had the effect of granting the Objector’s application to be joined as a party to the proceedings pursuant to s 8.15(2) of the EPA Act, that would effectively render irrelevant the necessity to determine the Applicant's Notice of Motion.

39. However, as it transpired, the hearing of the submissions concerning the application for joinder made by the Objector extended to the luncheon adjournment. This meant that I would not have had time to deliver a decision on the Objector’s application for joinder and still have time to hear the Applicant's Notice of Motion within the day which had been allocated for the hearing.

40. As a consequence, I heard the submissions on the Applicant's Notice of Motion and reserved my decisions on both Notices of Motion. As I have concluded that the Applicant's Notice of Motion should succeed, it is appropriate that I address that outcome first and then turn to address the Notice of Motion on behalf of the Objector that it be joined as a party to the proceedings or be granted rights to participate in a fashion known as a Double Bay Marina participation (see Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313).

The Applicant's Notice of Motion

Introduction

41. The terms of s 8.12(1)(a), (4) and (5), all operating in combination, have the potential to create the right for a submitter, in the circumstances of this deemed refusal appeal to the Court, to participate in the proceedings as of right, rather than needing to make any application to be joined pursuant to s 8.15(2) of the EPA Act.

42. What here arises, in the context where the Applicant seeks the overturning of the Registrar's administrative decision to have the Objector recorded as the Second Respondent to the Applicant's Class 1 appeal by having the Objector removed pursuant to r 6.29 of the UCPR, is determination of when the Objector was given notice by the Council in a fashion which satisfied the requirement of s 8.12(2). This is because the giving of that notice triggered the running of the 28 days within which the Objector was required to notify the Registrar that it wished to participate in the proceedings in the fashion permitted for designated development.

43. As set out below, there are two letters from the Council to the Objector that require consideration in this context of establishing what should be regarded as the triggering date.

The two letters critical to the Applicant's motion

44. Two letters from the Council to the Objector arise for specific consideration in the context of Motion B. The first in time of these is a letter from Mr Ben Mackay, the Council's Manager Planning Assessment sent to the Objector, care of its Strata Manager and dated 17 August 2022. The terms of this letter were:

Applicant name:

MARKHAM REAL ESTATE PARTNERS PTY LIMITED

Reference number:

D/2022/476

Site address:

23A Hickson Road , MILLERS POINT NSW 2000, 23 Hickson Road , MILLERS POINT NSW 2000

Proposed Development and Appeal to the Land & Environment Court:

PAN-226700 & LEC Proceedings No. 2022/222973 - Renotification of Designated Development application for the installation of a mooring facility with associated services and access ramps. The application is an Integrated DA requiring approval under the Heritage Act 1977, Fisheries Management Act 1994 and Water Management Act 2000.

Unless the Independent Planning Commission has held a public hearing, a person who objected to the development by making a submission and who is dissatisfied with the determination of the consent authority to grant development consent, may appeal to the Court. If the Independent Planning Commission holds a public hearing, the Commission's determination of the application is final and not subject to appeal.

The Applicant has lodged a deemed refusal appeal with the Land and Environment Court.

It has come to our attention that, due to an administrative error, not all of the documents submitted with the application were accessible to the public during the previous notification period. We are renotifying surrounding neighbours and property owners to seek their views on the proposal and to provide access to documents that were not previously accessible.

We are accepting comments on the proposal until 15 September 2022. If this date is on a weekend, the period is extended to the next working day.

Notes 6, 7, 8 & 9 on the back of this form do not apply to this notification.

We encourage you to review all documents to understand the details of the proposal.

The development application and the documents accompanying the development application, including the environmental impact statement, is available on the City of Sydney website for the minimum period required under the EP&A Act 1979 for designated development. View the full application and send us your comments at ePlanning Search - city.sydney/find-da

Guidance to prepare your comments is on the website and on the back of this page.

For more information, contact Reinah Urqueza on 02 9265 9333.

45. During the course of the hearing, I enquired of Mr Singh as to whether Mr Mackay had an appropriate delegation pursuant to the relevant provision of the Local Government Act 1991 to sign letters satisfying the requirement of s 8.12(2) of the EPA Act (noting that it is disputed by the Objector that the 17 August 2022 letter satisfies s 8.12(2) of the EPA Act).

46. During the course the hearing, Mr Singh searched the Council's Register of Delegations and showed Dr Smith relevant elements of the register. On that basis, Dr Smith accepted that, whilst continuing to submit that Mr Mackay's letter, properly understood on its terms and in light of authority, did not satisfy s 8.12(2), if I was to conclude to the contrary, the scope of Mr Mackay's delegation did permit him to give notice which would satisfy the requirements of s 8.12(2).

47. The second relevant letter requiring consideration in the context of s 8.12(2) was that which was written by Mr Singh on 13 December 2022. That letter was in the following terms:

Dear Sir/Madam

NOTICE OF APPEAL - DESIGNATED DEVELOPMENT

Markham Real Estate Partners Pty Ltd ATF M7 Property Trust v Council of the City of Sydney

Land & Environment Court Class 1 Proceedings No 2022/222973

Site: 23 and 23A Hickson Road, Millers Point

Development Application No. D/2022/476

Notice is hereby given pursuant to section 8.12 of the Environmental Planning and Assessment Act, 1979 of an appeal by the Applicant, Markham Real Estate Partners Pty Ltd to the Land and Environment Court against Council's deemed refusal of the above development application. The development application seeks development consent for the installation of a mooring facility with associated services and access ramps at 23 and 23A Hickson Road, Millers Point.

As the development application is designated development and you made a submission by way of objection to it, you are entitled to be given formal notice of this appeal.

Right of Appeal

Please note that, pursuant to section 8.12(3) of the Environmental Planning and Assessment Act, 1979 you are, on application to the Court within 28 days after this notice is given, entitled to be heard at the hearing of the appeal if you are not already a party to the proceedings. ·

Pursuant to rule 3.4 of the Land and Environment Court Rules, 2007, any such application to be heard is to be made by means of a letter, addressed and delivered to the Registrar, that identifies the appeal proceedings.

You are encouraged to obtain your own legal advice in relation to this notice.

48. That letter was also addressed to the Objector care of its Strata Manager.

49. Although Mr Singh's letter was sent in response to an e‑mail to the Council from the Objector’s legal representative, it is to be noted that the letter of 17 August 2022 and the letter of 13 December 2022 were sent by the Council to all individuals or entities who had made submissions to the Council concerning the Applicant's proposed development. It is also to be noted that nothing turns on this fact for the purposes of my determination of either of these notices of Motion.

The Applicant's position

50. The Applicant's position advanced by Mr Hemmings on when the Objector’s opportunity to advise the Registrar that it wished to participate as provided for in s 8.12(3) of the EPA Act arose from the terms of Mr Mackay's letter of 17 August 2022. This was because, he submitted, the plain language of the letter, as evidenced by the heading of its first substantial paragraph and the nomination, in the first line of that paragraph, of the proceedings’ identifiers in this Court of the Class 1 appeal commenced by the Applicant, when coupled with the later express reference in the words:

The Applicant has lodged a deemed refusal appeal with the Land and Environment Court.

clearly constituted notice satisfying the requirements of s 8.12(2) of the Act.

51. He submitted that, because there was no statutorily prescribed provision in the EPA Act itself or in the Regulation as to the form of a notice (or any listing of detailed items of content of such a notice), the express inclusion of the information in Mr Mackay's letter of 17 August 2022 was sufficient notice to the Objector to trigger the running of the 28‑day period within which notice of the desire to participate was required to be given to the Registrar.

52. He submitted that this lack of specific requirements was to be contrasted with the provisions of the Regulation to which he took me, where detailed prescriptions were set out as to what was required to be included in notices in satisfaction of other statutory requirements under the EPA Act.

53. This meant that the only requirements for a relevant notice in satisfaction of the requirements of s 8.12(2) was that the Council needed to advise submitters of the commencement (here relevantly) of the Applicant's deemed refusal appeal in a sufficiently informative fashion. This, Mr Hemmings submitted, was clearly demonstrated by the terms of the 17 August 2022 letter.

The Council's submissions

54. As I earlier indicated, Mr Singh made submissions on the Council’s behalf as to why the Council considered that the letter which he had written on 13 December 2022 constituted the necessary notice pursuant to s 8.12(2) of the EPA Act and why Mr Mackay’s letter of 17 August 2022 did not have that effect. He referred to the matters that were set out in the paragraphs of the affidavit of Ms Urqueza where she had described the chronology of misadventures on the Council’s behalf that had necessitated multiple renotifications and extensions of submission periods. It is, for present purposes, not necessary to set out that chronology.

55. It is sufficient to note that the sequence of deficiencies in the Council’s making available of complete information concerning the Applicant's proposed development gave rise, in the Council's opinion, to the necessity to renotify and to provide the various extensions for the making of submissions concerning the Applicant's proposed development as outlined in her affidavit.

56. It is to be noted that, for the purposes of this motion, Mr Singh provided comprehensive written submissions on behalf of the Council in support of the proposition that the only valid notice given to submitters for the purposes of s 8.12(2) of the EPA Act was the letter which he had written, dated 13 December 2022, and which he had caused to be forwarded to all those who had made submissions concerning the Applicant's proposed development.

The Objector’s position

57. Dr Smith submitted that Mr Mackay's letter of 17 August 2022 did not constitute notice for the purposes of s 8.12(2) of the EPA Act. He contrasted the terms of that letter with the range of information contained in it, as can be seen from the text earlier reproduced, in comparison with the terms of the letter of 13 December 2022 written by Mr Singh. This latter letter, he submitted, contained all the appropriate information necessary to inform the submitters, to which it was sent (including the Objector), not only of the fact that the Applicant had commenced its Class 1 appeal in the Court, but also the relevant and related information as to what arose from that position as it gave rise to potential rights on behalf of each submitter and on how, if those rights were proposed to be exercised, written notice of that was required to be given to the Registrar of the Court within the statutorily mandated 28‑day period.

58. In this context, he took me to the decision of the Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 (Hoxton Park) - as had Mr Singh.

59. He proposed, as I understood his submission, it was necessary, by analogy with Hoxton Park, that the Council’s notice pursuant to s 8.12(2) needed to contain all the relevant information to inform a submitter of its rights (as was the case, he submitted, with Mr Singh's letter of 13 December 2022).

60. As in Hoxton Park, he submitted, absence of any critical piece of required information rendered any communication which might potentially have been regarded as satisfying the relevant statutory provision was to be regarded as insufficient and not constituting effective notice. This position was confirmed, he submitted, by the approach taken by Preston CJ in Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66 - as also referred to by Mr Singh.

61. On this basis, Mr Mackay's letter of 17 August 2022 was incomplete in the information which it was required to contain to constitute valid notice and, therefore, the 28‑day period for notification to the Registrar did not commence running as a consequence of it being sent to the Objector.

62. He submitted that the only communication which did incorporate all of the necessary information to provide sufficient notice to the submitters was contained in the letter from Mr Singh dated 13 December 2022 and the Objector’s letter of December 2022 sent to the Registrar was self-evidently within the 28‑day period provided for by s 8.12(3). The Registrar's administrative action in recording the Objector as the Second Respondent to the appeal was, therefore, valid and effective and there was no basis upon which I should exercise the power given by the UCPR to remove the Objector as the Second Respondent (as I understood the overall concluding tenor of his submissions).

The Applicant's submissions in reply

63. Mr Hemmings submitted that reliance on the Court of Appeal's decision in Hoxton Park was misplaced. There was no mandated formulation of how a notice pursuant to s 8.12(2) was required to be given beyond that which was to be taken from the terms of the provision itself. The only information required to be conveyed to the submitters was that the Applicant had commenced proceedings in the Court. That which had been set out in Mr Mackay's letter of 17 August 2022 was compliant with that requirement, thus triggering the 28‑day period within which the Objector was required to notify the Registrar if it wished to participate in the proceedings in the permitted fashion. As the Objector had not done so within that 28‑day period, the Registrar's administrative action lacked statutory foundation and the Objector should be removed and as the Second Respondent to the proceedings.

Consideration

64. The position advanced by Mr Hemmings on behalf of the Applicant on the Applicant’s Notice of Motion is to be accepted. My reasons for so concluding can be stated simply.

65. Critically, there are only two triggering requirements as prerequisites to the running of the 28 days within which a submitter has a right to notify the Registrar of a desire to participate in proceedings concerning designated development. Here, relevantly, the first of those is that the Applicant for such development has commenced proceedings in the Court and the second is that the Council notifies the submitter that those proceedings have been commenced. It is only those two matters which required to be considered here.

64. The terms of s 8.12(2) merely mandate that the Council notify submitters that the Applicant had commenced proceedings in this Court. Whether those proceedings were commenced as an appeal against a deemed refusal or an actual refusal of the Applicant's development application is not material for these purposes. As Mr Hemmings correctly pointed out, there is nothing mandated in the Regulation as to the form in which such notification is required to be delivered in satisfaction of the statutory provision.

65. The proposition advanced by Dr Smith that somehow, by analogy, the decision of the Court of Appeal in Hoxton Park required the Council's notification to set out in some fulsome fashion (almost to the extent of providing gratuitous legal advice), as was effected by Mr Singh's letter dated 13 December 2022, was misplaced.

66. The statutory obligation placed on the Council is to notify submitters (here, relevantly, the Objector) that such proceedings have been commenced. Whilst it might be argued that some detail identifying the proceedings by matter number was necessary (or desirable), nothing of that nature arises in these proceedings as Mr Mackay's letter of 17 August 2022 not only notified the Objector that the proceedings had been commenced by the Applicant in this Court, but also identified the matter number attached to those proceedings by the Court’s Registry at the time of the initiation of the Class 1 proceedings.

67. The 28‑day period within which the Objector was obliged to notify the Registrar pursuant to s 8.12(3) commenced to run from, at its latest, midnight on the date of the day of the receipt by the Objector of Mr Mackay's letter. It is clear that those 28 days had run their course long before the December 2022 letter was sent to the Registrar purportedly exercising a right pursuant to s 8.12(3) of the EPA Act.

68. It therefore follows that the Registrar’s administrative action, undertaken following receipt of that letter on behalf of the Objector, miscarried as it lacked a proper statutory foundation to require the Objector to be made the Second Respondent of the proceedings. It necessarily follows, therefore, that the application pursuant to r 6.29 of the UCPR that the Objector be removed as the Second Respondent to the proceedings should be granted. The orders made in response to the Applicant’s Notice of Motion will effect this.

The Objector’s Notice of Motion

Introduction

71. However, having concluded that that removal should be effected, it is next necessary to consider the Notice of Motion filed on behalf of the Objector seeking that, pursuant to s 8.15(2) of the EPA Act, the Objector be rejoined (this time validly) as the Second Respondent to the proceedings. I now turn to address the Objector’s Notice of Motion.

72. I have earlier noted that the Statement of Facts and Contentions upon which the Objector would propose to rely, if it remained/became the Second Respondent to the Applicant's Class 1 proceedings, had been tendered becoming Exhibit B. That document listed, without going into detail at this point, 10 contentions which the Objector proposed required to be addressed in order that the issues arising concerning the Applicant's proposed development were adequately ventilated and determined prior to any contemplation of granting the Applicant consent for its proposed development. Those contentions, by way of identifying number and heading of each of them in Exhibit B, are identified as:

1   Unacceptable fairway width;

2   Unacceptable space between vessels;

3   Unacceptable mitigation of fire risks;

4   Acoustic impacts from boats and use of thrusters;

5   Unacceptable acoustic impacts from mooring areas;

6   Visual impacts;

7   Failure to consider the EH SEPP and Walsh Bay Regional Environmental Study 1989;

8   Uncertainty and impacts of proposed use of the mooring facility;

9   Inconsistency in conflict with master plan; and

10   Inconsistency with the objectives in the EHC SEPP.

73. The above heading summary is sufficient for present purposes. However, it will later be necessary to consider at least one of those matters in more substance as to whether or not they are matters which have been sufficiently addressed in the Council’s assessment of, and responses to, matters raised by the Objector in its submission to the Council, or are matters which the Objector now proposes to advance on a broader basis.

74. In this context, it is appropriate to note that the Council's Statement of Facts and Contentions (Exhibit C) advanced only three contentions. The first of those related to heritage issues (a matter not, Dr Smith observed, one with which the Objector wished to engage); matters where the Council proposed that insufficient information had been provided by the Applicant; and, as contention 3 - under the heading the “public interest” - the Council set out, at paragraph 53, a list of 20 matters which had been raised as objections in the public submissions which had been made concerning the Applicant's proposed development. It is appropriate, first, to set out the full detail of the Council’s insufficient information contention. It is in the following terms:

CONTENTION 2 - INSUFFICIENT INFORMATION

Further clarification is required for certain aspects of the proposed development in order for a proper assessment all matters required under Section 4.15 of the Environmental Planning and Assessment Act 1979 to be carried out.

Particulars

31   In accordance with Clause 4.15(b) of the Act, the consent authority must take into consideration the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.

32   Further clarification is required for certain aspects of the proposed development as follows.

Owners Consent

33 Clause 23 - Persons who may make development applications of the Environmental Planning and Assessment Regulation 2021 (the Regulation) provides that a development application may be made by the owner of land to which the development application relates or by any other person, with the consent of the owner of that land.

34   The land-based portion of the site relates to the wharf, which is owned by The Owners Strata Plan 64174, Markham Real Estate Partners Pty Ltd and Transfield Property Pty Ltd.

35   The applicant has declared on the NSW Planning Portal that consent of the owners has been provided to submit the application.

36   The proposal involves works to the common property. However, a submission has been received by The Owners Strata Plan 64174, advising that their consent has not been provided.

37   Evidence is required to demonstrate that the consent of all owners of the land has been provided. Absent consent from all of the owners of the affected land, the Court lacks the requisite jurisdiction to grant development consent if it is satisfied that consent ought to be granted.

Mooring of vessels

38   Objective (c) of the Walsh Bay Waterway Zone in SEPP (Precincts - Eastern Harbour City) 2021 is to limit mooring facilities for private vessels used by lessees and tenants of property in Zone 1.

39   The Operational Plan of Management (POM), prepared by Ethos Urban, outlines the proposed mooring facility is a privately owned and operated facility for private vessels, but does not confirm that those vessels are associated with lessees and tenants of the land.

40   Clarity is sought as to whether the private vessels are associated with the lessees and tenants of the property to ensure the proposed development satisfies the objectives of the Walsh Bay Waterway Zone.

Hours of Operation

41   The submitted Environmental Impact Statement (EIS) and POM, prepared by Ethos Urban, outlines the proposed hours of operation of the mooring facility are between 7.00am and 8.00pm, Monday to Sunday.

42   However, the EIS and the POM also refers to vessel movements occurring 24 hours, 7 days.

43   Further information is required on the 24-hour vessel movement and how afterhours access of the mooring facility is managed.

Size of Vessels

44   The EIS accompanying the application outlines the mooring facility will accommodate a maximum of 6 vessels. The largest vessel would have a length of 50 metres.

45   The submitted architectural plans, prepared by MFA, does not provide sufficient detail of the following:

(a)   The berthing arrangement of the various types of vessels, including dimensions.

(b)   The berthing arrangement in relation to the lease boundary, the fairway, and adjacent mooring facilities in Pier 6/7 with an indication of setback and distance dimensions.

46   The insufficient information above does not enable a detailed assessment to be carried out on the likely impacts of the development.

Outstanding Referral - General Terms of Approval from the Department of Planning and Environment - Water is yet to be received

47 The proposed development requires an activity approval under Section 91 of the Water Management Act 2000. Accordingly, the application constitutes Integrated Development and requires the General Terms of Approval from the Department of Planning and Environment - Water (DPE - Water) as the approval body.

48 In accordance with Section 4.47(2) of the Environmental Planning and Assessment Act 1979 (the Act) Council must, before granting development consent to an application to carry out development, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development.

49   Council has written to DPE - Water on two occasions seeking its input.

50   Correspondence from DPE - Water is yet to be received that confirms whether the approval body will grant approval for the development.

75. It is, next, appropriate to set out the list of the 20 topics that were listed by the Council as having been advanced by those who had submitted objections to the Applicant's proposed development. That list is in the following terms:

53   Of the 133 submissions received, 131 objected to the proposed development raising concern for the following issues:

(a)   Operational noise, particularly from “party boats” and noise disturbance and vibration

(b)   Construction noise

(c)   Incompatibility with the residential and arts uses in the locality

(d)   Size of vessels to be moored are too big

(e)   Pollution and air quality

(f)   Visual impacts

(g)   Privacy

(h)   Overshadowing

(i)   Navigational safety

(j)   Increased waves and winds

(k)   Increased traffic and pedestrian movement

(l)   Loss of parking

(m   Clarity on whether the proposed development would be for public or private use

(n)   Hours of operation and the 24 hour 7 days a week vessel movement

(o)   Operational management

(i)   Lack of measures to handle complaints

(ii)   Crew permanently living in vessels

(p)   Waste management

(q)   Lighting

(r)   Impacts to heritage

(s)   Reduced fairway to enable private/recreational boats to safely navigate

(t)   Impacts to the seabed and wildlife

The submissions for the Objector

76. Dr Smith noted that the Objector had commissioned expert reports upon which it would propose to rely concerning the contentions which it wished to raise. Those expert reports at been commissioned from:

• a marine navigation expert;

• a town planner; and

• an acoustic engineer.

77. The three expert reports upon which the Objector would seek to rely are in evidence on these Notices of Motion.

78. Each of these reports, to the extent that they addressed one or more of the Objector’s proposed contentions, provided, he submitted, a proper and sufficient demonstration that there were issues that the Objector sought to ventilate which would not otherwise be sufficiently addressed if the Objector was not joined as the Second Respondent to the proceedings. It is unnecessary, for present purposes, to set out at any length matters of detail arising from all these three expert reports.

79. However, for reasons subsequently discussed, it is appropriate to note that the expert report addressing marine navigation matters set out the locations of the ferry transit paths in Sydney Harbour immediately to the north of this portion of Walsh Bay and also set out the general commercial vessel transit paths to the north of Walsh Bay.

80. Dr Smith submitted that the various matters traversed by the expert reports all demonstrated that there were matters that would not be sufficiently addressed in the context of the hearing of the Applicant's Class 1 appeal as there was no sufficient evidence that the Council had adequately addressed (or addressed at all) the matters which were now sought to be canvassed in Exhibit B.

81. With respect to the question of whether the contentions proposed to be pressed on behalf of the Objector concerning what were said to be adverse and unacceptable visual or acoustic impacts of the Applicant's proposed development, Dr Smith submitted that, although these were potential impacts on residents of apartments in the wharf with which the Objector is associated, rather than merely being potential impacts on users or occupiers of the Objector, this did not preclude the Objector raising those matters as matters either not sufficiently addressed by the Council's consideration of, or objections to, the Applicant's proposed development or were capable of being regarded as being raised as matters of the public interest.

The submissions for the Applicant

82. Mr Hemmings first took me to provisions of the lease between Transport for New South Wales (Transport) and the Objector and an associated deed between those parties. He did so to found a submission, based on what he said were relevant provisions of those two documents, that should cause me to conclude that the operation of those provisions precluded the Objector from being entitled to play the role which it seeks in these proceedings. For reasons later explained, I am satisfied that there is no necessity to set out the detail of the provisions of the lease or the deed upon which Mr Hemmings relies for this submission.

83. Mr Hemmings also submitted that the Objector had delayed in seeking to be joined as a party to the proceedings. Given that the proceedings had been commenced on 29 July 2022 and the Notice of Motion seeking to be joined had not been filed until 9 December 2022, there was, he submitted, no adequate explanation for this delay and that nothing concerning this delay was revealed in the affidavit material from Mr Canaway, the Chairperson of the Objector’s Strata Committee.

84. Mr Hemmings submitted that the Objector was not permitted to institute these proceedings because the precursor steps to do so had been undertaken by the Strata Committee and not by the Owners Corporation of the Strata Plan. For these purposes, he relied on the provisions of s 103 of the Strata Schemes Management Act earlier reproduced. He submitted that such evidence as I had, through the vehicle of the affidavit of Mr Canaway, did not disclose that the necessary prerequisite steps for the undertaking of legal action in the name of the Owners Corporation had been taken.

85. As a consequence of this, he submitted that I should refuse the joinder application. For reasons which also later follow, it is not necessary to undertake any detailed consideration of the matters advanced by Mr Hemmings in support of this proposition. This is because, as noted in my setting out of Dr Smith's reply submissions, he drew my attention to the relevant provision in this legislation which provided a complete answer to this submission.

86. Mr Hemmings next took me through material concerning the various internal assessment processes which the Council had undertaken and which had led to the Council formulating its contentions in the confined fashion earlier noted as arising from contentions 1 and 2 of Exhibit C.

87. This process, he submitted, demonstrated that all of the various matters now advanced on behalf of the Objector as providing a basis for joinder pursuant to s 8.15(2) had already been considered by the Council and, therefore, should be regarded as being sufficiently addressed in the proceedings.

88. It is unnecessary, now, to go through the detail of each of the matters addressed but it is appropriate to note that a number of the Council’s internal referral comments concerning various of the topics were laconic in their extent. It is to be observed that Mr Hemmings did not take me to any matters in the evidence that could demonstrate how such internal assessments constituted “sufficient addressing” of the matters involved in any appropriately informative fashion.

The Objector’s reply submissions

89. Dr Smith responded to matters raised by Mr Hemmings, addressing them as set out below.

90. Dr Smith responded to the submissions advanced, on behalf of the Applicant, that the Objector was precluded, by the terms of the lease and deed with Transport, by its obligations under those documents from seeking to be joined as a party to the proceedings or, if already properly a respondent, from actively pursuing that role. In his submission on this point, Dr Smith also referred to terms of the documents and submitted that Mr Hemmings submissions were misplaced on a proper reading of the relevant terms. As earlier noted, for reasons later explained, it is not necessary to turn to the detail of the provisions of these documents.

91. Dr Smith addressed the argument advanced by Mr Hemmings founded on s 103 of the Strata Schemes Management Act by pointing to subs (4) of the provision. The subsection was earlier reproduced but it is appropriate here to be repeated. The subsection is in the following terms:

(4)   A failure by an owners corporation or the strata committee of an owners corporation to obtain an approval under this section does not affect the validity of any proceedings or other legal action taken by the owners corporation.

92. Dr Smith submitted that this subsection provided a complete barrier, in these proceedings, to Mr Hemmings’ submission based on this statutory provision.

93. The response to the delay objection raised by Mr Hemmings was, as I understood Dr Smith’s submissions, that there was no unreasonable delay because of the multiple notification periods (and their communication by the Council to submitters, including the Objector) arising from the inadequacy of the Council making available various relevant information through the Council’s website or on the Planning Portal. Under these circumstances, until the Objector was fully informed, the Objector was not in a position to consider whether it should seek to be joined as a party to the proceedings. As a consequence, although the application for joinder was not made until some five months after the proceedings were commenced, that delay was not unreasonable under the circumstances.

Consideration

Introduction

94. I turn to consider the Objector’s joinder application, mindful of the strictures of Preston CJ in Morrison Design Partnership Pty Limited v North Sydney Council and Director‑General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802, at [42] to [46], but in circumstances (unlike those there addressed by his Honour) where the Applicant’s proposal is designated development. Although the Objector did not effectively take advantage of the opportunity provided by s 8.12(3) of the EPA Act, the nature of the development and the issues arising from it warrant more careful (but not more permissive) consideration than “ordinary” development.

95. I have carefully read each of the expert reports by which the Objector seeks to demonstrate that its proposed contentions fall within the scope of s 8.15(2) of the EPA Act establish that matters in the Objector’s proposed contentions would not be addressed sufficiently if the Objector was not joined as the Second Respondent to the proceedings.

96. In was also submitted by Dr Smith that these matters also fell within the public interest, triggering the appropriateness of joinder by virtue of s 8.15(2)(b)(ii) of the EPA Act as a basis for joinder.

94. Given the conclusion that I have reached that joinder is appropriate by virtue of s 8.15(2)(a), it is unnecessary to consider the separate, subordinate element of the Objector’s application for Double Bay Marina participation.

95. I now turn to address what I am satisfied is the most important aspect arising out of the Objector’s proposed contentions, an issue which I am satisfied does warrant joinder of the Objector pursuant to s 8.15(2)(a) of the EPA Act. This matter arises out of the marine navigation expert evidence upon which the Objector proposes to rely.

The operational arrangement of the Applicant's moorings

99. During the course of the hearing, I enquired several times of Mr Hemmings as to what evidence was available as to how the moorings for which the Applicant was seeking consent would operate. I did this because the inference to be drawn from Dr Smith's submissions was that the Objector was advancing that vessels moored at the Applicant's proposed facility would be oriented at right angles to the adjacent wharf structure (a mooring orientation which would be the same as that for the existing installed moorings at the Objector’s facility - as could be seen from Figure 1 of Exhibit C, the Council's Statement of Facts and Contentions).

100. Eventually, Mr Hemmings tendered Exhibit 4, two sheets of plans depicting the layout of vessels proposed to be moored if the Applicant's proposed development is approved. There are a number of elements of importance for present purposes to be noted concerning these plans.

101. First, these plans were not in the public domain until tendered during this hearing. They are portion of a set of plans which had been advanced by the Applicant to the Council, on a “without prejudice” basis, during the conciliation conference process. I have earlier explained why I rejected an objection from Dr Smith to the tender of these plans (as it turns out, Dr Smith was inadvertently seeking to snatch defeat from the jaws of victory by this objection - as will later be seen).

102. Mr Hemmings did not seek to take me to any other plans which would demonstrate any contrary proposed mooring position when compared to the alongside‑mooring positions shown in Exhibit 4. This exhibit shows the intention of the Applicant (in Scenario 1 shown on DA 24) to have three vessels moored in a north-‑south orientation. Those vessels are of different lengths, with the longest of them, a vessel depicted as being 50 metres in length, being the most northern of these vessels to be located at the Applicant's proposed facility. The vessel is depicted as being moored alongside and oriented with its bow to the north.

103. I have earlier referred to Figure 1 in the Council’s Statement of Facts and Contentions (Exhibit C). That figure, in addition to showing the orientation of the existing moorings in the Applicant’s facility also shows the dimensions of the seabed and superjacent surface water area of all three elements located between the two wharf structures here relevant. To the east is shown the boundaries of the area within the Objector’s strata plan boundaries. In the centre is shown what has been described as the “fairway”, an area of water in the public domain available for vessel manoeuvring (whether by vessels from the Objector’s moorings, the Applicant's proposed facility or, at least potentially, other vessels which might inadvertently enter the space between the two wharves). Importantly, for present purposes, the fairway is to be regarded as a commonly available public navigation space. Finally, to the west, Figure 1 shows the surface boundaries of the Applicant’s lease area.

104. These three elements between the two wharf structures, although not precisely scaled on Figure 1, do give a relevant understanding to the various spaces on the water between the two wharf structures.

105. Exhibit 4 (DA 24) shows that the fairway has a width of some 25 metres and the area within which the Applicant's proposed facility is to be located has a water area width of some 12 metres. Clearly, for a boat of 50 metres in length, a full turning manoeuvre is incapable of being carried out by such a vessel within the water area which would be available to it by combination of the Applicant's water area and the fairway.

106. This clearly results in the position that, for such a vessel to enter and moor as proposed by the Applicant, a turn and reverse movement in the public waterway domain, as addressed in the marine navigation expert’s report proposed to be relied upon by the Objector, would be necessary. That report shows where the ferry transit routes are located, and also where commercial vessel transit routes are located, to the north and in proximity to the two Walsh Bay wharves here engaged. A similar position of the necessity for vessel manoeuvring outside the confined waters available between the two wharf structures would also arise for the second of the vessels depicted on DA 24 in Exhibit 4, Scenario 1 - a vessel of 40 metres in length.

107. It is not the position that the Council’s contentions concerning lack of information or any other aspect of the Council's consideration encompass these detailed matters.

108. To the extent that the “insufficient information” contention addresses vessel matters, the size of vessels and lack of general terms of approval set out between paragraphs 44 and 50 of Exhibit C do not raise any of the matters proposed to be addressed by the Objector arising from the proposed evidence of a marine navigation expert.

109. Given the obvious necessity for safe harbour manoeuvring by vessels proposed to be moored at the Applicant's facility and avoidance of collision risks in the vessel transit pathways in the Harbour proper, as depicted in its Scenario 1, I am satisfied that these matters do give rise to an issue which satisfies s 8.15(2)(a) and also s 8.15(2)(b)(ii) of the EPA Act as matters of public interest. Both these are appropriate bases upon which the Objector should be joined as the Second Respondent to the proceedings.

The Council’s “insufficient information” contention

110. The second of the contentions raised by the Council in Exhibit C is one that alleges an insufficiency of the information provided by the Applicant in support of its proposed development.

111. Relevant to matters about which the Objector seeks to advance contentions set out in Exhibit B, none are replicated as identified topics where the Council contends that the Applicant has not provided sufficient information in support of its proposed development.

112. Whilst it is to be repeated that the Council documents, also in evidence, record that detailed submissions had earlier been lodged on behalf of the Objector, it is clear that the report concerning marine navigation matters is a report dated December 2022, significantly later than the date when the Council had noted that an earlier report from the same expert had been submitted by the Objector.

113. It is to be noted, in this context, that the proceedings are presently being conducted on the basis of the contentions advanced by the Council in Exhibit C. Those contentions, as earlier set out, allege that, in a number of respects, the Applicant has provided insufficient information concerning each of those topics. Absent leave being sought and granted to rely on an Amended Statement of Facts and Contentions deleting any or all of those alleged insufficiencies of information, the Second Respondent will also be entitled to make submissions about all of those matters.

114. The question of whether the Council will seek to rely on an Amended Statement of Facts and Contentions and what procedural submissions (if any) might arise in that context is a matter for any contested hearing, should that eventuate.

Delay

115. I am satisfied, for the reasons advanced by Dr Smith, that the time between the commencement of the proceedings (and the existence of the proceedings being notified to the Objector by Mr Mackay’s 17 August 2022 letter) and the date when the Objector filed its Notice of Motion seeking, pursuant to s 8.15 of the EPA Act, to be joined as a party to the proceedings, does not constitute unreasonable and disentitling delay. The evidence in the affidavit of Ms Urqueza explaining the various administrative misadventures of the Council, and the necessity arising therefrom for multiple renotifications of the Applicant's proposed development, provides appropriate support, I am satisfied, for Dr Smith's submissions as to why the delay in making the joinder application arose.

The argument founded on s 103 of the Strata Schemes Management Act

116. I am satisfied that, as submitted by Dr Smith, s 103(4) of the Strata Schemes Management Act provides a complete response in these proceedings to whatever might have been the deficiencies or otherwise (matters which I do not need to determine) in the processes undertaken by the Strata Committee of the Objector in instructing its legal representatives concerning the proceedings commenced by the Applicant in this Court.

117. To the extent that potentially fascinating forensic issues may arise (whether or not between members of the Objector with external parties being entirely irrelevant), those are not issues capable of being considered by me in these proceedings. I am satisfied that this statutory provision does not give rise to any basis upon which I could decline to join the Objector as the Second Respondent to these proceedings.

The lease and the associated deed

118. I am satisfied that it is not necessary to seek to resolve, in these proceedings, the matters raised by Mr Hemmings and the responses to them from Dr Smith arising from the lease and associated deed between the Objector and Transport. As earlier noted, the Objector’s Notice of Motion seeking joinder was filed on 9 December 2022.

119. Between that date and the date of this hearing, the Applicant has had a sufficiently generous period of time to seek to obtain evidence from Transport concerning the lease and deed if Transport shared the concerns advanced on behalf of the Applicant concerning the Objector’s proposed participation in these proceedings. No such evidence is provided.

120. I am satisfied that it is appropriate to draw the inference that such evidence would not assist the Applicant's case on this Notice of Motion (Jones v Dunkel [1959] HCA 8; 101 CLR 298). Given that this was raised as a discretionary matter for present purposes, I am not satisfied that it raises any sufficient issue that would warrant me rejecting the Objector’s application to be joined.

Other matters proposed to be raised by the Objector

121. For reasons addressed above, I am satisfied that it is appropriate to join the Objector as the Second Respondent to the proceedings on the basis of the vessel navigation issues pressed by it and which are encompassed by contention 7 in Exhibit B.

122. It is also necessary to observe that, although this provides sufficient basis to join the Objector as the Second Respondent, the Objector also proposes, in Exhibit B, that it be permitted to raise another nine contentions.

123. During the course of the hearing, noting that there is proposed expert evidence that would be advanced on the Objector’s proposed contentions 5 (unacceptable acoustic impacts) and 6 (visual impacts), it is also to be noted that, to the extent that I have information about the remaining contentions, such information is contained in the particularisation provided on behalf of the Objector. It is to be observed that, during the course of the hearing, I was not taken to any matters of significant detail said to demonstrate that they would be sufficiently addressed by the Council if the Objector was not permitted to raise them in the proceedings.

124. To the extent that they are encompassed within the list in paragraph 53 (in the third of the Council’s contentions), no detail is provided as to how they have been addressed through the Council’s assessment process.

125. Whilst I cannot be satisfied that any or all of these matters expressly fall within s 8.15(2)(a) or (b) as bases for joinder, I am, nonetheless, satisfied that it would be appropriate, in the public interest, to permit the Objector to raise those other matters, those other matters not having been demonstrated to me as ones not appropriate, in a conventional planning sense, to be considered as part of the proceedings.

126. I do not, therefore, propose to require that any amendment be made to Exhibit B for the purposes of it being filed as the Statement of Facts and Contentions upon which the Objector is permitted to rely at hearing.

The effect of joinder

127. The position that, once joined, the Objector becomes a party for all purposes (including the right to be heard on all matters in contention in the proceedings - including the wide‑ranging list of matters contained in contention 2 and in paragraph 53 of contention 3 in the Council’s Statement of Facts and Contentions).

Costs

128. In the Applicant’s Notice of Motion, as earlier set out, the Applicant sought, if it was successful in having the Objector removed as the Second Respondent to the proceedings, that that Objector should be ordered to pay the Applicant's costs of its Notice of Motion.

129. There are two matters which cause me to conclude that, prima facie, I should not do so.

130. First, it is unusual (but not unknown) for a council to seek to be heard on any issue of substantive dispute, as has here been the case with respect to the Notice of Motion filed on behalf of the Applicant seeking to have the Objector removed as the Second Respondent to these proceedings. In this instance, the submissions advanced on behalf of the Council went somewhat beyond, I am satisfied, what might ordinarily have been advanced as relating to process matters undertaken by the Council and ventured into supporting the case advanced on behalf of the Objector whose removal was sought by the Applicant.

131. Although not expressly sought by the Applicant in its Notice of Motion, the extent and nature of the Council's participation potentially gives rise to an issue as to whether or not it is appropriate that I might contemplate ordering that the Council pay part of the costs arising from the Applicant's success in its Notice of Motion if a costs order was to be made.

132. Second, it is also relevant, in a global sense of having regard to the differential (and what, to a lay person, might be regarded as the contradictory) outcomes of the hearing on 13 February 2023 that I should have regard to the overall cumulative outcome that has arisen from that hearing, one where the removal of the Objector as the Second Respondent to the proceedings is immediately followed by reinstatement in that role (albeit on an entirely different statutory basis).

133. Under these circumstances, I am, prima facie, satisfied that the appropriate outcome with respect to each of the Notices of Motion is to exercise the discretion afforded to me by s 98(1) of the Civil Procedure Act (engaged for the purposes of interlocutory applications of this nature) and otherwise order.

134. Hence the orders that I make with respect to each of the Notices of Motion will provide that, unless one or more of the participants to the proceedings on 13 February 2023 notifies my Associate within 14 days of the orders made by this decision disposing of each of the Notices of Motion that that participant wishes to be heard to propose some alternative costs order, the appropriate costs outcome of each of the Notices of Motion is that there should be no order for costs with a view to each participant bearing its own costs of each of Notices of Motion.

Orders

135. With respect to the Notice of Motion filed by the Applicant, the orders of the Court are:

1. The application is granted;

2. Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005, the Owners Corporation of Strata Plan 70335 is removed as the Second Respondent in Matter No 222973 of 2022;

3. Unless the Applicant, the First Respondent or the Owners Corporation of Strata Plan 70335 notifies my Associate within 14 days of the date of these orders that it wishes to propose some alternative costs order, there is to be no order for costs of this Notice of Motion with a view to each of the Applicant, the First Respondent and the Owners Corporation of Strata Plan 70335 bearing its own costs of this Notice of Motion; and

4. The exhibits are returned.

136. With respect to the Notice of Motion filed on behalf of the Owners Corporation of Strata Plan 70335, the orders of the Court are:

1. The application made by the Owners Corporation of Strata Plan 70335 is granted;

2. Pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979, the Owners Corporation of Strata Plan 70335 is joined as the Second Respondent to Matter No 222973 of 2022;

3. Unless the Applicant, the First Respondent or the Second Respondent notifies my Associate within 14 days of the date of these orders that it wishes to propose some alternative costs order, there is to be no order for costs of this Notice of Motion with a view to each of the Applicant and the First and Second Respondents bearing its own costs of this Notice of Motion; and

4. The exhibits are returned.

Directions

137. I give the following directions:

1. The Second Respondent is to file and serve its Statement of Facts and Contentions by 12.00 noon on Friday 17 February 2023; and

2. The matter is stood over to the adjourned conciliation conference to be conducted by Dickson C on 20 February 2023.

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Decision last updated: 16 February 2023