Murphy & Anor v Canada Bay City Council - [2008] NSWLEC 17

Land and Environment Court

of New South Wales

CITATION: Murphy & Anor v Canada Bay City Council [2008] NSWLEC 17

PARTIES:
APPLICANTS
Daniel Murphy and Nicole Murphy
RESPONDENT
Canada Bay City Council

FILE NUMBER(S): 11060 of 2007

CORAM: Sheahan J

KEY ISSUES: Section 96 Modification :- joinder application by neighbour

LEGISLATION CITED: Land and Environment Court Act 1979, s.39A

CASES CITED: Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007) NSWLEC 205;
Chase Property Investments Pty Ltd v Blue Mountains City Council & Anor [2005] NSWLEC 442;
Direct Factory Outlets Homebush Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 185;
Grosvenor Australia Properties Pty Ltd v Sydney City Council [2006] NSWLEC 267;
Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293;
Mahogany Ridge Developments Pty Ltd v Port Stephens Council (2004) 135 LGERA 60;
Meriton Apartments Pty Ltd v Fairfield City Council & Anor [No.2] [2005] NSWLEC 121;
Pro-Vision Developments Pty Ltd v Ku-ring-gai Municipal Council [2003] NSWLEC 226;

DATES OF HEARING: 11 January 2008

EX TEMPORE JUDGMENT DATE: 11 January 2008

LEGAL REPRESENTATIVES: APPLICANT
Mr R Graham, Solicitor of
Home Wilkinson Lowry
RESPONDENT
Mr R Mascarenhas, Solicitor of
Marsdens Law Group
OBJECTOR
Mr A Goodridge (in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

11 January 2008

Murphy & Anor v Canada Bay City Council
EXTEMPORE JUDGMENT

1 His Honour: These Class 1 proceedings concern an unsuccessful modification application made by Mr & Mrs Murphy in respect of the Council’s consent dated 2 May 2006 to certain works on their home at 48 Plunkett Street Drummoyne, and Mr Anthony Goodridge of No.46 Plunkett Street seeks to be joined as a party. Both addresses are in the Bourketown Conservation Area but No.48 is not a heritage item.

2 The application by Mr Goodridge has come before me today on an urgent basis as the appeal is listed for hearing on 22 January.

3 Mr Goodridge filed, and has taken the Court through, a detailed affidavit with voluminous attachments. His position is essentially that the Council has failed to take account of his substantive objections to the whole development, including heritage aspects, and that, as heritage is not raised as an issue in this appeal, he should be joined as a party so that he can call a heritage expert to respond to the report of the Court appointed expert.

4 His difficulty is that his concerns refer mainly to the Council’s handling of those issues, and of the development in general since before the initial development consent was granted. The annexures to his affidavit detail his persistence in raising his concerns.

5 Council purported on 2 October 2007 to deal with many of his concerns – a consideration triggered by his and its concern about non-compliance with the consent – and a detailed Council officers’ report is annexed to the Murphys’ application, and again appears as Annexure “K” to Mr Goodrige’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWLEC 17
Decision Date: 11 January 2008

CaseChat Overview and Summary

In the case of Murphy & Anor v Canada Bay City Council, the applicants, Daniel and Nicole Murphy, sought to modify a decision made by the Canada Bay City Council regarding works on their home located at 48 Plunkett Street, Drummoyne. The applicants challenged the council's refusal to consent to a modification application, and a neighbouring resident, Anthony Goodridge, sought to join the proceedings to raise his concerns about the development. The Land and Environment Court of New South Wales presided over the case, with Sheahan J delivering the judgment. The central issue before the court was whether Mr Goodridge should be allowed to join the proceedings as a party to address his concerns, which primarily focused on the council's handling of the development and its compliance with the initial development consent.

The court had to decide whether to exercise its discretion under section 39A of the Land and Environment Court Act 1979 to allow Mr Goodridge to join the proceedings. The court considered the specific nature of the modification application, which dealt with particular as-built elements of the development. The court also weighed Mr Goodridge's concerns against the limitations of the joinder application in addressing broader issues related to the initial consent. Ultimately, the court found that Mr Goodridge's concerns did not directly pertain to the specific issues raised in the modification application, and thus, joining him as a party would not serve the purpose of addressing the defined elements of the appeal. The court also noted that the council had already addressed many of Mr Goodridge's concerns, and he had the opportunity to object and be heard at the hearing.

The court refused Mr Goodridge's application to join the proceedings, stating that his concerns were not directly relevant to the specific issues in the modification application. The court emphasised that Mr Goodridge had the right to object and be heard at the hearing, and that the decision did not prevent him from pursuing other legal avenues if he wished to challenge the initial consent. The court reserved all questions of costs.

Orders