Nusalim v North Sydney Council

[2022] NSWLEC 72

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Nusalim v North Sydney Council [2022] NSWLEC 72

Hearing dates:

1 June 2022

Date of orders:

1 June 2022

Decision date:

01 June 2022

Jurisdiction:

Class 1

Before:

Moore J

Decision:

At [18]

Catchwords:

APPLICATION FOR JOINDER - application for joinder to development appeal - Applicants for Joinder seek to raise several issues - one issue a potential jurisdictional barrier to upholding the appeal - jurisdictional issue is not raised by the Council - apparent validity of jurisdictional issue - appropriate that the issue be raised by the Applicants for Joinder being made parties - additional parties joined

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.15(2)

North Sydney Local Environmental Plan 2013

Cases Cited:

Bilotta v Inner West Council [2021] NSWLEC 129

Category:

Procedural rulings

Parties:

George Nusalim (Applicant)
North Sydney Council (Respondent)
David Jackson (First Applicant for joinder)
Monica Jackson (Second Applicant for joinder)
Michael McCarthy (Third Applicant for joinder)
Elizabeth McCarthy (Fourth Applicant for joinder)

Representation:

Counsel:
Ms L Nurpuri, barrister (Applicant)
Mr S Kondilios, solicitor (Respondent)
Mr M Seymour, barrister (Applicants for joinder)

Solicitors:
McKees Legal Solutions (Applicant)
Hall and Wilcox (Respondent)
Mills Oakley (Applicants for joinder)

File Number(s):

33501 of 2022

Publication restriction:

No

EXTEMPORE Judgment

1. HIS HONOUR: The Notice of Motion that is before me this afternoon is one for joinder pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 (the EPA Act), a provision that replaces the former provision for joinder in planning appeals that had appeared in the Land and Environment Court Act 1979. Section 8.15(2) provides three possible bases (all in the alternative) for joinder.

2. First, and that which I am satisfied arises for consideration in these proceedings, is whether the persons seeking to be joined to the proceedings would be able to raise an issue that should be considered in the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party to the proceedings.

3. Exhibited to the affidavit of Ms Cowper, the solicitor for the Applicants seeking joinder, is a bundle of documents (becoming Exhibit A in the proceedings), one of which sets out, at Tab 21, material discovered on an examination of plans by the town planning consultant, Mr Scott Barwick, who has been retained by the Applicants for Joinder. That sets out, on page 125 of the bundle, a discussion of the height of the building that is the subject of the development application appeal.

4. Mr Barwick expresses the opinion that the building breaches the “height of buildings” control that is established by the North Sydney Local Environmental Plan 2013 (the LEP). In support of that conclusion, Mr Barwick includes, in his letter, an extract from a survey plan of the development applicant and an extract from development application drawing A0105, a drawing which, on my reading of it, makes good the proposition that the height of the proposed development exceeds the 8.5‑metre development standard contained in the LEP’s Height of Buildings Map.

5. Although the exceedance is only one of 0.14 metres, as set out in the second substantive paragraph on folio 125, it nonetheless arises concerning a development standard and a development standard which is, on Mr Barwick's analysis, breached - a breach about which I have no evidence in response on behalf of the development applicant.

6. Such a development standard is at least potentially amenable to being breached if a request pursuant to cl 4.6 of the LEP was made and a proper basis for granting that request was established. There is no suggestion that such a request has been made, let alone that it has been established to be valid.

7. The response now, from Ms Nurpuri of counsel who appears for the development applicant, is that the height of the slab that causes that exceedance is capable of being lowered and that a plan amendment was envisaged that would address that point.

8. First, the position to which my attention has been drawn by Mr Seymour, appearing for the Applicants for Joinder, was what was said by Pain J in Bilotta v Inner West Council [2021] NSWLEC 129 at [62] - that the Applicant's assurance that the commissioner presiding at a s 34AA conciliation conference will have to address his mind to jurisdictional matters. As her Honour observed, this can provide little comfort to a party seeking to be joined if it appears that no other party will be presenting evidence and making submissions to assist the commissioner on relevant jurisdictional matters.

9. In these proceedings, as the Council is taking a “neither support nor oppose” position on the application for joinder and not taking any part on the application for joinder - a position which I am not being to be taken to be critical, this means that I cannot be satisfied that this matter will be resolved by amendment to the plan - amendments to the plans about which I have no information as to what might be the consequence of them in what might be described as “ripples down the caterpillar” effect.

10. I am satisfied that, on that basis alone, this is sufficient to join the Applicants, there being no difference between the two groups of Applicants seeking joinder on this point.

11. I observe that there are, because of the different locational positions of the First and Second Applicants' residence and the Third and Fourth Applicants' residence, clearly differing interests, at least potentially, on the question of view loss. That issue is not a matter that, on my reading of all the material and the two affidavits from Ms Cowper, which would warrant, in itself, joinder.

12. However, I am satisfied that the coincident intent in raising the jurisdictional issue does satisfy the test in s 8.15(2)(a) - that it is an issue that should be considered - and this provides a sufficient basis for joinder.

13. Although the question that also arises as a consequence of the position in Part 1.3.1, provision P2 of the North Sydney Development Control Plan (the DCP) concerning impacts on, and constructions into, rock outcrops is engaged, on the material provided in Ms Cowper's affidavits and in Exhibit A, the material indicates that that is not a matter about which the Council has made specific complaint.

14. There is no question in my mind that that element of the DCP also, although noted as a matter in the Council's Statement of Facts and Contentions as the second last bullet point in contention B7.1 (being matters raised by objectors - a rubric under which is generally encompassed all matters relating to the public interest), is required to be addressed by the assessment provisions of the EPA Act.

15. The way that that is expressed is in different terms from those that are dealt with by Mr Barwick in his analysis. Whilst I am satisfied that the rocky outcrop issue would not in itself warrant joinder, nonetheless it reinforces, as an additional factor, the reason why I consider that the jurisdictional point by itself warrants the joinder of the parties.

16. Mr Seymour has provided me, in Exhibit C, the proposed Short Minutes of Order that he suggests I ought make. Ms Nurpuri proposes that me making the order for joinder would necessitate the vacation of the s 34AA conciliation conference currently listed before Commissioner Horton for 6 and 7 June 2022. I am not satisfied that that is the case.

17. If the process that is set out in Mr Seymour's proposed Short Minutes of Order turns out to be unable to be sufficiently satisfied, I am nonetheless of the view that at least commencing the conciliation conference is possible, even if the presiding commissioner becomes satisfied at that time that more time will be necessary for the parties to address matters - adjourning a conciliation conference from time to time and place to place is within the power of the commissioner to determine and respond to at that time.

18. I am therefore satisfied that David Francis Jackson, Monica Mary Jackson, Michael John McCarthy and Elizabeth McCarthy should be joined as the Second, Third, Fourth and Fifth Respondents to the Class 1 appeal.

**********

Amendments

23 June 2022 - Amendment to correct matter number from '179897 of 2020' to '33501 of 2022', the Court's allocated matter number.

Decision last updated: 23 June 2022