Nusalim v North Sydney Council

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…