Reddall Street Pty Limited v Northern Beaches Council

[2024] NSWLEC 1041

Land and Environment Court

New South Wales

Medium Neutral Citation:

Reddall Street Pty Limited v Northern Beaches Council [2024] NSWLEC 1041

Hearing dates:

15 December 2023

Date of orders:

07 February 2024

Decision date:

07 February 2024

Jurisdiction:

Class 1

Before:

Froh R

Decision:

The orders of the Court are:

(1) The motion is dismissed.

Catchwords:

JOINDER —application for joinder — statutory tests — issues proposed to be raised by applicants for joinder —public interest – Double Bay Marina order – application for joinder dismissed.

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Cases Cited:

Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205

HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135

JCP Constructions & Development Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1204

Morrison Design Partnership Pty Ltd v North Sydney Council & Anor (2008) 159 LGERA 361

Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243

The Sabian Mandaean Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94

Texts Cited:

Land and Environment Court Rules 2007

Manly Local Environment Plan 2013

Manly Development Control Plan 2013

Category:

Procedural rulings

Parties:

Reddall Street Pty Limited (Applicant)
Barrie Feldman and Ikuyo Feldman (Applicants for Joinder)
Northern Beaches Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
C Ireland (Applicants for Joinder)
J Ede (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
McKees Legal Solutions (Applicants for Joinder)
Northern Beaches Council (Respondent)

File Number(s):

2023/250690

Publication restriction:

Nil

JUDGMENT

1. REGISTRAR: By Notice of Motion dated 6 December 2023 (the Motion), Barrie and lkuyo Feldman seek to be joined to the proceedings pursuant to s 8.15(2) of Environmental Planning and Assessment Act 1979 (the EPA Act), or in the alternative, seek to participate in the proceedings by way of a 'Double Bay Marina' order.

2. The proceedings were commenced by Reddall Street Pty Ltd as trustee for The Reddall Street Trust (Applicant) on 7 August 2023 and concern an appeal under s 8.7 of the EPA Act against Northern Beaches Council's (Council) deemed refusal of Development Application No. DA2023/0299 (the DA).

3. The DA was lodged with the Council on 24 March 2023 and seeks development consent for demolition works, subdivision of three lots into five, construction of five new dwelling houses with swimming pools, associated landscaping, and parking at 29, 31 and 35 Reddall Street, Manly (the Site).

4. The DA was notified to 123 adjoining landowners and occupiers between 28 March 2023 and 14 April 2023. 32 submissions were received, 30 of which objected to the DA, and 2 of which were in support of the DA. The solicitor for the Feldmans (who own a neighbouring lot) lodged a submission objecting to the DA on 14 April 2023.

5. The DA was referred to the Northern Beaches Local Planning Panel (the Panel), which convened a meeting on 15 November 2023. The solicitor for the Feldmans’ addressed the Panel at that time and the Panel resolved to refuse the DA.

6. A Notice of Determination to that effect was issued on 17 November 2023

7. On 8 September 2023, Council filed its Statement of Facts and Contentions (Council's SOFC).

8. The DA was renotified between 29 September 2023 to 23 October 2023.

9. Relevant to the Motion, the current issues pleaded in the Council's SOFC include, in summary:

1. Contention 1: The Development Application should be refused because the proposed development is not compliant with the height of buildings development standard in clause 4.3 of the Manly Local Environment Plan 2013 (LEP).

2. Contention 2: The Development Application should be refused because the proposed development is not compliant with clause 4.1.2.1 Wall Height of the Manly Development Control Plan 2013 (Manly DCP).

3. Contention 3: The Development Application should be refused because the proposed development is not compliant with Clause 4.1.2.2 Number of Storeys of the Manly DCP.

4. Contention 4: The Development Application should be refused because the proposed development is not compliant with clause 4.1.4 Setbacks (Front, Side and Rear) and Building Separation of the Manly DCP.

Evidence

10. The Applicants for Joinder rely on the Affidavit of lkuyo Feldman affirmed 5 December 2023.

11. The Applicant relies on the Affidavit of Stuart Simington affirmed 14 December 2023.

Legal Principles

12. Section 8.15(2) of the Act provides:

(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.

13. Consideration of an application under s 8.15(2) is a two-step process in which I must first determine whether one of the limbs of s 8.15(2) is met and second, whether to exercise my discretion to make an order: Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44].

14. In the alternative to being joined as a party pursuant to s 8.15(2) of the EPA Act, the Feldmans’ seek to lead evidence, cross-examine witnesses and make legal submissions in respect of Council's SOFC by way of a Double Bay Marina Order, pursuant to s 38 of the Land and Environment Court Act 1979 (LEC Act).

15. Sections 38(2) and (3) of the LEC Act provide:

(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)  Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.

16. The Schedule to the Notice of Motion filed on 6 December 2023 provides a draft Statement of Facts and Contentions proposed to be relied upon by the Feldmans if they are joined as the second and third respondent to the proceedings.

17. I must now consider whether the issues proposed to be raised by the Feldmans are issues that should be considered by the Court but are not likely to be sufficiently addressed if the Feldmans are not joined as parties in respect of the following matters:

Proposed Contention 1(f)

18. The first contention sought to be raised is an additional particular to contention 1 of the Council’s SOFC relating to building height and the visual bulk as a result of the non-compliance with the height standard in the LEP.

19. My view is that it is unnecessary to raise an additional particular to Contention 1 in circumstances where clause 4.3 of the LEP is a jurisdictional issue, and squarely put before the Court, and which will be adequately considered by the Court. The lack of an explicit mention of another objective of cl 4.3 does not mean that the Court will not undertake the requisite consideration. As Preston CJ noted in HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]:

"Before dealing with ... a merit issue of whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met. The Council accepted that these other jurisdictional preconditions can be met, but noted that the Court, exercising the functions of the consent authority on the appeal, needs to be satisfied itself that the preconditions have been met."

20. Further to this, I also repeat my observations in JCP Constructions & Development Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1204 at [12] - [19] when the court considers a jurisdictional matter:

"Regardless of whether the parties have reached a consent position, a hearing on the merits is still conducted before the Court and the presiding judge or commissioner must be satisfied on all merit and jurisdictional issues before an order is made to grant consent.

Returning now to the test for joinder. The first proposed ground for joinder is a jurisdictional point concerning the zone objectives of the WLEP I make these observations. Any orders for the grant of consent can only be made if the presiding officer has been satisfied of the proposal on its merits and all jurisdictional preconditions are satisfied.

This has always been the case.

It also means that when a presiding officer is presented with consent orders for a proposal that she does not consider to accord with the law and/or capable of consent on its merits, then she will refuse to make the orders.

So although this jurisdictional issue is not raised in the SOFC, it is important to note that it is an express obligation of the presiding officer to consider and give reasons about this jurisdictional issue.

As such, I am satisfied that the zone objective of the WLEP will be considered by the presiding officer and that this issue is sufficiently before the Court and will be addressed."

21. I adopt the same approach for proposed particular 1(f) to Contention 1. This is a jurisdictional matter which the Court is duty bound to consider and I find it is not necessary for the joinder of the Feldmans for this issue to be sufficiently addressed.

Proposed Contention 6

22. Proposed Contention 6 relates to visual privacy and concerns that Lot 4 will result in overlooking of the first floor balcony and ground level private open space of the Feldman’ property.

23. This proposed contention has been raised by the Feldmans in their submissions to the Council and to the Panel. Mr Simington’s evidence provides a copy of the Council’s Assessment Report and its consideration of this issue when assessing the DA. Ms Feldman’s evidence also provides details about her concern about visual privacy impact. Ms Feldman states in her evidence that “Council has elected not to press the visual privacy issue that has a direct impact on the amenity of my property.”

24. Although there appears to be some disagreement about the distance at certain points between the development on the Feldmans’ property and the Proposed Development on Lot 4 of the DA, in its assessment of the DA the Council formed the opinion that suitable visual privacy is provided by the Proposed Development.

25. In determining this point I am guided by the findings of Preston CJ in Morrison Design Partnership Pty Ltd v North Sydney Council & Anor (2008) 159 LGERA 361 (Morrison) in which his Honour stated at [50] - [54]:

"To some extent, the application ... misunderstands the purpose of public consultation and public participation. Meaningful community involvement can, of course, be beneficial in the development assessment process. It can provide members of the community with an understanding of what is happening in their area and how the proposed development may impact particularly on their interests; enable members of the community to participate by making submissions to the consent authority; inform the consent authority; and improve planning decisions.

Community consultation and public participation should not be viewed as being adversarial. The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted.

Community consultation and public participation under the Environmental Planning and Assessment Act are not intended to give the community or affected persons who object to development any entitlement to veto development. The planning scheme established by the Environmental Planning and Assessment Act vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination.

A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission.

The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal.”

26. The Court will, in the usual course, have the benefit of a site view when undertaking the conciliation conference. The Feldmans can make a submission to the conciliating Commissioner about their concerns and the Commissioner will have the benefit of observing this impact. If the matter does not resolve at conciliation, the matter will be listed for hearing whereby it is customary for the proceedings to commence with a site view. Again the Feldmans may wish to address the Commissioner hearing the matter about their concerns and the Commissioner will have the benefit of observing this impact.

27. It is also important to note at this point that Contention 4 of the Council’s SOFC raises the Proposed Development’s non-compliance with setbacks and the particularises the objectives of the Manly DCP to ensure that local amenity is enhanced by providing privacy.

28. I am further guided by the findings of Lloyd J in The Sabian Mandaean Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 at [14]:

"Even if I am wrong in finding that the contentions sought to be raised by Ms Butler are not all covered by the statement of facts and contentions raised by the Council, the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think to be sufficiently important does not automatically warrant an order for joinder under s 39A: see Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; (2003) 127 LGERA 293 at [36] per Pain J."

29. As such, I consider this issue to be before the Court and to be capable of being sufficiently addressed without the joinder of the Feldmans’.

Proposed Contention 7

30. Proposed Contention 7 seeks to raise acoustic privacy. It was put to me that the matters referred to above in relation to visual privacy are equally relevant to Proposed Contention 7 as they relate to the same building elements.

31. I agree with this submission.

32. The Manly DCP deals with both visual and acoustic privacy together and I repeat my findings above that privacy has been raised in the Council’s SOFC with regards to these same building elements. As such, I am of the view that this issue can be sufficiently addressed by the parties without the joinder of the Feldmans who wish to raise acoustic privacy specifically.

Proposed Contention 8

33. Proposed Contention 8 relates to the subdivision pattern. The Applicant for joinder argues that that the pattern of subdivision in the locality does not contain any battle axe lots and asserts that such a subdivision pattern will exacerbate the impacts on her property. I note that Ms Feldman does not attest to the impacts that will be exacerbated by the proposed subdivision pattern.

34. The issue of consistency with the prevailing subdivision pattern in relation to part 4.4.8 of Manly DCP was considered by the Council in its Assessment Report which concluded that the Proposed Development was not inconsistent with the existing subdivision pattern and provides reasons for this assessment.

35. The Feldmans’ Proposed Contention 8 particularises their concerns over the inconsistent subdivision pattern by reference to the impact this would have on the streetscape, and on the Feldmans’ privacy as a result of the terracing and wall height in the DA. The DA’s impact on streetscape, privacy and wall heights are already addressed in Contentions 2 and 4 of the Council’s SOFC.

36. My view is that the real issues which the Feldman’s seek to raise about the subdivision pattern are already contained in the Council’s SOFC and as such joinder is not necessary for these issues to be dealt with by the Court.

Proposed Contention 9

37. Proposed Contention 9 seeks to introduce a contention arguing that due to the shared driveways and shared basements that the proposed subdivision should be strata subdivision rather than Torrens title subdivision. The Feldmans’ draft SOFC sets out in its particulars that strata subdivision would accord with the objectives of the EPA Act to promote the orderly and economic use of land and the proper construction and maintenance of buildings.

38. The development for which the Applicant is seeking approval is as set out in its DA, and although the Council’s SOFC has not raised this issue, I see no utility in such a contention to be before the Court.

39. Furthermore, Annexure C to the Affidavit of Stuart Simington contains a draft instrument demonstrating the arrangements which could be required by the Commissioner in accordance with a condition of consent to provide for suitable arrangements for the proposed common driveways.

40. Proposed Contention 10 is not pressed by the Feldmans and I do not consider it further in this judgment.

Proposed Contention 12 and 13

41. The Feldmans propose two further insufficient information contentions, being that the Proposed Development is not supported by an adequate survey plan or site plan.

42. Tab 16 of the Class 1 Application contains a survey plan showing levels, features, contours and identification for the Site and 95 Bower dated 16 March 2022.

43. Ms Feldman attests that she is currently constructing a new house on her property and it was conceded by the Applicant that there are some documents which do not identify those changes. However, Mr Simington attests that the approved outline of those alterations and additions are identified subsequent plans and photomontages at Tab 6 of the Class 1 Application.

44. My view is that there is no utlity to join the Feldmans in order to raise these insufficient information contentions. However, the Feldmans may wish to address the Court at a conciliation or hearing about these issues.

Public Interest

45. The Feldmans also seek to be joined on the basis that it would be in the public interest.

46. I do not agree.

47. The public interest will be adequately served by the Feldmans addressing the Court as objectors at the commencement of the conciliation or subsequent hearing about the concerns they wish to raise with the Court.

48. As such, I find that the test for joinder under s8.15(2) of the EPA Act has not been satisfied.

Double Bay Marina Order

49. In relation to the Double Bay Marina Order, Jagot J stated in relation to s 38(2), in her decision Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 at [5]:

“Whiles 38(2) is not similarly constrained, the types of consideration that are set out in s [8.15(2)] no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order.”

50. The Feldmans have brought the issues they consider relevant to the attention of the Council and the Panel. The Feldmans do not need to be joined as a party so as to be able to continue arguing these particular submissions. As previously set out in this decision, the Feldmans will have the opportunity to address the Court at the conciliation and any subsequent hearing of these proceedings. The Feldmans' written submissions will also be put before the Commissioner in the usual course.

51. My view is that the Feldmans have raised issues that have already been considered by the Council, and those issues are capable of being sufficiently addressed by the Court.

52. For these reasons, I decline to grant relief in the form of a Double Bay Marina Order.

Costs

53. The applicant has sought its costs of the motion. Costs can be granted under r 3.7 of the Land and Environment Court Rules 2007 if I consider it fair and reasonable in the circumstances. Although I do not consider the test for joinder satisfied and have declined to make a Double Bay Marina order, I do not consider it fair and reasonable to make a cost order in favour of the applicant.

54. The reasons put forward by the Feldmans for joinder were not without merit and there was no conduct on their behalf which would make it fair and reasonable that there be a cost order against them.

55. The orders of the Court are:

1. That the motion is dismissed.

S Froh

Registrar of the Court

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Decision last updated: 08 February 2024