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 affidavit. No action was recommended on any of the issues he had raised, but, in argument today, he has questioned the factual accuracy of the Council officers’ report in respect of at least one of those matters.

6 What is before the Court now is a modification application dealing with specific as-built elements of the development the subject of the consent.

7 The Court has some sympathy with Mr Goodridge’s concerns, but exercising its discretion under s.39A of the Land & Environment Court Act 1979 to join him as a party to a merits review matter defined by the modification does not allow him the opportunity to deal with many of his concerns, which would appear to require him to pursue a possible challenge to the consent, in Class 4 of the Court’s jurisdiction.

8 Rightly or wrongly, the Council has reached the point where it no longer has concerns about the heritage aspects of Mr Goodridge’s position.

9 Mr & Mrs Murphy oppose Mr Goodridge’s application to be joined, but the Council will submit to whatever decision the Court makes. Mr Goodridge and Mr Graham have taken the Court to many relevant authorities, decided in recent years, including Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; Pro-Vision Developments Pty Ltd v Ku-ring-gai Municipal Council [2003] NSWLEC 226; 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; Chase Property Investments Pty Ltd v Blue Mountains City Council & Anor [2005] NSWLEC 442; Grosvenor Australia Properties Pty Ltd v Sydney City Council [2006] NSWLEC 267; Direct Factory Outlets Homebush Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 185; and Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007) NSWLEC 205.

10 The decision in each of those cases turns on its own facts, but one always comes back to the wording of s.39A. Many of them dealt with the concerns of representative community organisations.

11 I accept that Mr Goodridge’s concerns go beyond those of an objecting immediate neighbour, but I am not satisfied that he has anything to add on the issues that have been specifically brought before the Court in this particular appeal, concerning as it does defined elements of a modification application. Mr Goodridge has all the rights and opportunities afforded in such matters to objectors and will be heard at the hearing.

12 His Notice of Motion is refused. All questions of costs are reserved.