Spencer v Kiama Municipal Council

[2024] NSWLEC 80

Land and Environment Court

New South Wales

Medium Neutral Citation:

Spencer v Kiama Municipal Council [2024] NSWLEC 80

Hearing dates:

31 July 2024

Date of orders:

01 August 2024

Decision date:

01 August 2024

Jurisdiction:

Class 1

Before:

Robson J

Decision:

See orders at [53]

Catchwords:

CIVIL PROCEDURE — Parties — Joinder — Neighbouring property owner to development application — Joinder not necessary for all matters in dispute to be effectively and completely determined

CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Determining separate question not justified

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Environmental Planning and Assessment Act 1979 (NSW), ss 8.7, 8.15

Kiama Local Environmental Plan 1996, cl 6.7

Uniform Civil Procedure Rules 2005 (NSW), Sch 7, rr 6.24, 28.2

Cases Cited:

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112

Joseph v Spencer (No 7) [2022] NSWLEC 1085

Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50

Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31

Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802; (2007) 159 LGERA 361

Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36

Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19

Category:

Procedural rulings

Parties:

Jennifer Spencer (First Applicant)
Ricardo Spencer (Second Applicant)
Kiama Municipal Council (Respondent)
Michael Joseph (Applicant for Joinder)

Representation:

Counsel:
R O’Gorman-Hughes (Applicants)
K Mezinec, solicitor (Respondent)
M Joseph, self-represented (Applicant for Joinder)

Solicitors:
HWL Ebsworth (Applicants)
McCullough Robertson Lawyers (Respondent)
Self-represented (Applicant for Joinder)

File Number(s):

2024/00176325

Publication restriction:

Nil

EX TEMPORE Judgment

1. By notice of motion filed 22 July 2024, the intervener, Michael Joseph, seeks a number of orders in relation to Class 1 proceedings commenced 13 May 2024 by Jennifer Spencer and Ricardo Spencer (the ‘Spencers’) appealing against the refusal of Kiama Municipal Council (‘Council’) of a development application lodged by the Spencers for alterations and additions to a property being Lot 859 in DP 231616 and known as 110 North Kiama Drive, Kiama Downs (‘site’).

2. Although Mr Joseph's motion seeks nine separate orders, in summary, the relief can be distilled to five claims. One, that the hearing of the motion be expedited; two, that Mr Joseph be joined as a party to these Class 1 proceedings; three, that the issue as to whether Council (and this Court on appeal) has jurisdiction or power to determine the development application because it relates to prohibited development be determined discretely prior to any other issue; four, that a conciliation and hearing set down pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (‘Court Act’) on 12 and 13 August 2024 be vacated; and five, various related orders regarding the further conduct of these Class 1 proceedings, including orders for access to expert reports and plans relied upon by the primary parties. For present purposes, the effective relief sought relates to joinder, separate determination of the question of permissibility, and consequent vacation of the conciliation hearing set down on 12 and 13 August 2024.

3. At the hearing of the motion, Mr Joseph, a retired senior barrister, appeared without discrete legal representation; Mr R O'Gorman-Hughes, of counsel, appeared for the Spencers; and Ms K Mezinec, solicitor, appeared for Council.

4. Both the Spencers and Council oppose the orders sought by Mr Joseph in the motion.

5. For the reasons that follow, I am not persuaded that it is appropriate to make any of the orders sought in the motion filed 22 July 2024.

Background

6. The following background facts are uncontentious. These Class 1 appeal proceedings, commenced 13 May 2024, relate to Council's refusal of the Spencers’ development application seeking development consent for the partial removal of existing structures and construction of new decks and balconies, retaining walls, and landscaping relating to an existing two-storey residential dwelling on the site.

7. The site is intersected by a “foreshore building line” such that the rear portion of the site is located within the “foreshore area” as those terms are defined in the Kiama Local Environmental Plan 1996 (‘Kiama LEP’).

8. The development application was lodged with Council on 2 August 2023 and subsequently notified to various neighbouring property owners (including Mr Joseph). In response to the notification, Mr Joseph provided an extensive objection to the proposal raising various concerns and referring to a detailed history of applications made in relation to the site over a number of years. The objection also included a review of planning laws and raised specific concerns in relation to Council’s conduct in prior litigation and various determinations of this Court. Mr Joseph raised a primary concern in relation to the permissibility of the proposed development and as well as concerns as to the adequacy of reports prepared on behalf of the Spencers. Mr Joseph’s objection also annexed earlier expert reports produced for earlier development applications.

9. As part of Council’s consideration of the development application an internal assessment report dated 8 February 2024 was prepared by a Council assessment officer and Council’s Director Planning, Environment and Communities. The report recommended refusal of the development application primarily on the basis of impermissibility based upon the proposal’s relationship with the foreshore building line and relying on cl 6.7(2) of the Kiama LEP which provides, inter alia, that Council must not consent to development within the foreshore building line unless it is an extension to an existing building which is at least partly within the foreshore building line. The report noted that this position is “irrespective of any design merits whereby the proposal must be refused”, and the report further noted that there were “no significant concerns … in relation to privacy loss and overlooking resulting from the proposed development”, and noting that the “appearance of the proposal … will not result in any unreasonable impact upon views of the coastline and ocean extending from the north to east to south as currently available from neighbours”. The report also summarised various public submissions and objections which raised issues relating to first, the fact that the proposal was not permitted within the foreshore area pursuant to cl 6.7 of the Kiama LEP; and second, that there would be adverse impacts on neighbouring properties including view and privacy impacts in relation to the location of the proposed rear deck.

10. On 8 February 2024, Council refused the development application, and on 13 May 2024, the Spencers commenced these present Class 1 proceedings pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’).

11. On 14 June 2024, Council filed a statement of facts and contentions (‘SOFAC’). Relevantly, under “PART B – CONTENTIONS”, Council provided extensive and detailed particulars of its concerns under the following headings:

1. “Prohibited development”,

2. “Inadequate clause 4.6 [of Kiama LEP] request”;

3. “Impacts on scenic quality, views and character of the area”;

4. “Inconsistency with Kiama DCP 2020”;

5. “Privacy”; and

6. “Public interest and undesirable precedent”.

Evidence

12. The evidence before the Court comprised an affidavit of Mr Joseph dated 22 July 2024; the SOFAC; Council’s internal assessment report dated 8 February 2024; an objection received from a neighbour, Mr John Leftwich, dated 21 August 2023; the objection of Mr Joseph dated 21 August 2023; and a further objection comprising an expert town planning report of Jeffrey Michael Mead dated 5 September 2023 prepared on behalf of Mr Joseph.

13. In his affidavit, Mr Joseph deposes to a detailed history of litigation in relation to what may be respectfully referred to as the ongoing disputes between himself and both Council and the Spencers regarding various development applications relating to the site. Mr Joseph details his concerns with the conduct of Council officers (and Council generally) in relation to the previous applications and provides details of various litigation. Mr Joseph deposes to various more recent attendances upon, and dealings with, Council officers for the present development application, including his knowledge that Council has retained a private town planner for the purpose of these Class 1 proceedings.

14. Mr Joseph also expresses concern that the town planning expert apparently relied upon by the Spencers has not attended his property in order to assess the likely impact of the proposal on the property and that he has not received copies of those expert reports to be relied upon by the primary parties in these Class 1 proceedings.

Submissions

15. Mr Joseph provided the Court with detailed written submissions and made further oral submissions. The legal representatives of the Spencers and Council made oral submissions.

16. Mr Joseph maintains that there is a significant “preliminary issue” as to whether the proposal is prohibited, and this depends on the well-known demarcation between what may be a development standard as opposed to a prohibition. He submits that the conciliation hearing set down for 12 and 13 August 2024 would be of little or no utility and in circumstances where both Mr Joseph and his retained town planning expert, Mr Mead, maintain that the development is prohibited. Mr Joseph accepts that Council is presently maintaining that the proposal is prohibited, however he maintains that he has concerns in relation Council’s past conduct.

17. Mr Joseph also makes submissions in relation to the inadequacy of the internal Council assessment dated 8 February 2024 (noted above) particularly in relation to its conclusions on view and privacy impacts although he accepts, in oral submissions, that the present SOFAC does raise these matters as contentions (presumably relying upon further expert evidence retained by Council of which Mr Joseph has not seen).

18. Mr Joseph submits he needs time to consider the material before the Court and have his expert consider the expert reports. As such, he sets out further matters that he maintains require various orders as he has not received the evidence to be relied upon by the parties including the expert evidence, and he further maintains a concern that there that there is, or has been, a non-compliance with the Expert Witness Code of Conduct contained in Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).

19. Mr Joseph confirms that his application to be made a party is pursuant to s 8.15(2) of the EPA Act and/or r 6.24 of the UCPR. He submits that he has “justifiable forensic concerns” as to the fair and reasonable conduct of Council and raises concerns as to the fact that an earlier decision of this Court (Joseph v Spencer (No 7) [2022] NSWLEC 1085) determined that a view from Mr Joseph’s property would be severely obstructed by bamboo (then planted by the Spencers) and that this finding may create an issue estoppel, or at least be a persuasive opinion, such that he would need to be a party to the present proceedings to assert the findings as evidence against the present development application.

20. Mr Joseph submits that while he has no concerns about certain issues now being raised, he remains concerned whether they will be “properly addressed” in these Class 1 proceedings.

21. Mr Joseph maintains that, apart from the appropriateness of an order for the separate determination of the issue regarding permissibility, the interests of justice require that he be made a party such that he would be in a position to call expert evidence and make submissions in relation to the Court's consideration of the development application.

22. In these circumstances, he notes that the dates for the conciliation hearing were set without consideration of his concerns and that the conciliation hearing should be adjourned to accommodate, inter alia, his concern regarding the nature and extent of the evidence relied upon by the parties and suggested that the dates otherwise allocated for the conciliation hearing could be used for the determination of the preliminary question regarding permissibility under r 28.2 of the UCPR.

23. Mr Joseph indicated that at any conciliation or hearing he wished to put evidence and make submissions before the Court in relation to first, the earlier decision referred to above regarding the Trees (Disputes Between Neighbours) Act 2006 (NSW) and the findings of the Court in that matter; second, material on the historical conduct of the Spencers particularly in relation to a development application made in 2005 by another neighbour pursuant to which the Spencers lodged objections relating to view loss from the site; and third, he desires to mount a challenge as to whether the experts now retained by the parties have complied with the Expert Witness Code of Conduct.

24. On behalf of the Spencers, Mr O'Gorman-Hughes made submissions in relation to the principles involved with applications made pursuant to s 8.15(2) of the EPA Act and r 6.24 of the UCPR and took the Court in some detail to the decision of the Court of Appeal in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 (‘AQC Dartbrook’) where the Court dealt with the principles in relation to an application for joinder.

25. The Spencers made further submissions relating to s 8.15(2)(a) and (b) of the EPA Act, that there is no issue now sought to be raised by Mr Joseph which otherwise is not clearly raised in the SOFAC and in the matters before the Court.

26. The Spencers submit that the Court would be comfortably satisfied that those matters now raised by Council (including the contention in relation to permissibility) are to be maintained and, in the circumstances, it cannot be in the interest of justice nor in the public interest that Mr Joseph be joined as a party to the appeal proceedings as it is now accepted that the fact that a person contends that a court lacks power to dispose of proceedings does not make that person a necessary party to those proceedings.

27. Council adopted the Spencers’ submissions and made further submissions in relation to Council’s consideration of the development application including the conduct of inspections at the site (although not on Mr Joseph’s property) and surrounding areas and noted Council’s retention of an independent town planner for the conduct of the proceedings and that joint expert conferencing has already taken place. Council submits that in these circumstances, there will be no savings of costs if the separate determination of the issue regarding permissibility is ordered and, that it is in the interests of justice, and in accordance with the usual practice, that all matters in dispute between the parties should proceed to be heard at one time.

Consideration

28. As noted above, the effective relief sought by Mr Joseph is first, that he be joined as a party; second, that the conciliation hearing be vacated; and third, that an order made for the question of permissibility be determined separately to these primary Class 1 proceedings.

29. In relation to joinder, Mr Joseph relies upon s 8.15(2) of the EPA Act and/or r 6.24 of the UCPR. Those provisions relevantly provide:

8.15   Miscellaneous provisions relating to appeals under this Division

…

(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.

…

6.24   Court may join party if joinder proper or necessary

(1)   If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

…

30. Although the Court may join a party if joinder is proper or necessary pursuant to r 6.24(1) of the UCPR, applications for joinder are primarily governed by s 8.15(2) of the EPA Act, which reflects the former s 39A of the Court Act.

31. The principles which I am to adopt have been often referred to and considered by this Court. Of particular relevance to a number of the matters raised by Mr Joseph are the comments of Preston CJ of LEC in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802; (2007) 159 LGERA 361, where his Honour stated:

“[42] I note at the outset that s 39A is facultative in the sense of enabling the Court to join a person to proceedings under the Environmental Planning and Assessment Act of the types listed in s 39A of the Land and Environment Court Act who would not otherwise have a right to be a party to such proceedings. Under the Environmental Planning and Assessment Act, persons who object to development proposed in a development application or to a modification of a development consent, have no right to be joined as a party to proceedings unless the development is classified as designated development…

[43] This is relevant to note because the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation, including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering exercising the power under s 39A. The power under s 39A is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to appeals under ss 96, 96AA, 96A and 97 by dissatisfied applicants for or holders of development consent. Rather, the circumstances in which the Court may order a person to be joined as a party to proceedings of the types listed in s 39A are limited to the circumstances set out in paras (a) and (b) of s 39A…

…

[48] The second limb in paragraph (b) has two grounds: the interests of justice and the public interest.

[49] In relation to the first ground, it is not necessary to join the Owners Corporation in the interests of justice. As Morrison Design Partnership submitted, the Owners Corporation has been given numerous and meaningful opportunities to be heard through the year long process of consultation and consideration by the Council. The Owners Corporation and individual proprietors, and the experts engaged by them, have had many opportunities to express, both in writing and orally, their concerns as to each and every one of the issues that the Owners Corporation now wishes to raise. There is no suggestion that they have not had adequate opportunity. Furthermore, as I have said, there will be further opportunity for the Owners Corporation to participate firstly in the forthcoming s 34 conciliation conference, and if a hearing is to occur, at that hearing.

…

[51] 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.

[52] 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.

…

[54] 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, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings.

…

32. In addition, the principles in relation to the joinder of persons as parties either because they ought to have been joined or whose joinder is necessary to ensure that all matters in dispute may effectively and completely be determined as required by r 6.24 of the UCPR, have a long history which is recorded in AQC Dartbrook at [14]-[15], and have their origin as early as 1881.

33. Rule 6.24 of the UCPR has two limbs: a person who “ought to have been joined” or is a person “whose joinder as a party is necessary to the determination of all matters in dispute”. I consider that, in the circumstances, Mr Joseph is not a person who “ought to have been joined as a party”, nor is he a person “whose joinder as party is necessary to the determination of all matters in dispute”. I have formed this view because I have little doubt that the essential matters which he wishes to raise are otherwise raised in Council's contentions noting, that these are contentions which Council maintains would effect the refusal of the Class 1 appeal.

34. Furthermore, while some of those matters of concern to Mr Joseph (relating to what may be considered as merit concerns) themselves may not arise at all if Council’s primary contention in relation to prohibition is upheld. In passing, I note that it is trite that an objector, who seeks to make submissions on a point that is live between the parties, which the Court would otherwise not receive submissions (or evidence) on, is open to apply to be heard as an amicus. The hearing of an amicus curiae is entirely in the Court’s discretion: AQC Dartbrook at [20]; Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31 at 604.

35. In addition, adopting the considerations in both r 6.24 of the UCPR and s 8.15(2) of the EPA Act, I am not satisfied that Mr Joseph is able to raise an issue that should be considered but would not be considered in relation to the Class 1 appeal. Again, that is because the manner in which Council has now solemnly raised contentions, which, with the exception of one matter dealt with further below, reflect the matters which Mr Joseph has otherwise indicated he wishes to ventilate.

36. Further, I do not accept Mr Joseph's submission that he may have “justifiable forensic concerns as to the fair and reasonable conduct of the Council in asserting its opinion as to the merits of the DA given the lack of real consideration of this by its own assessor” (Mr Joseph’s written submissions, p 4). In my view, it is not in the interests of justice for Mr Joseph to be heard on this submission.

37. As noted above, despite the comments in Council's internal assessment report dated 8 February 2024 (in relation to matters such as privacy and other merit matters), the Court was informed that Council has retained independent private town planning expertise for the conduct of the hearing and, I again note, has now specifically raised these matters as contentions in the SOFAC.

38. I also do not consider that it is in the public interest that Mr Joseph be joined as a party as I consider that the public interest in the present circumstances is properly addressed by adherence to the practice and procedures for the conduct of Class 1 appeals including the process under s 34AA of the Court Act. This involves Council giving appropriate consideration to the interests of the objectors and that the Court is made aware of the nature and extent of objections received. Furthermore, the process involved in hearings conducted pursuant to s 34AA of the Court Act provides for the efficient conduct and disposal of conciliations and hearings and facilitates the just, quick and cheap determination of Class 1 appeals. This process allows Mr Joseph to have the opportunity to again express his concerns at the commencement of the conciliation hearing as an objector called by Council, and, as the conciliation hearing will commence on site, he will be able to point to specific matters that support his concerns.

39. Further, Mr Joseph will be kept informed in relation to the outcome of the conciliation and, if the matter proceeds to hearing, he will be able to attend the Court in person or arrangements can be made for him to observe the proceedings by audio visual link.

40. I do not intend to make an order that, if one is still sought, that the primary parties’ expert reports be made available to Mr Joseph and his expert. Council must, of course, keep Mr Joseph informed of the conduct of the matter but whether reports are made available to him is a matter for the parties. Additionally, although I do not fully understand Mr Joseph’s concern in relation to whether any of the experts have complied with the Expert Witness Code of Conduct, I do not intend to make any order in relation to that concern.

41. I now consider Mr Joseph’s application that the Court make an order for a preliminary determination of the question of permissibility of the proposed development. Although a non-party cannot seek an order for determination of a separate question, the Court may, unilaterally, make such an order. The power to order a question to be determined separately is contained in r 28.2 of the UCPR, which provides:

28.2   Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

42. The principles to be applied in approaching the exercise of the discretion conferred by r 28.2 of the UCPR are well-known and are summarised in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [87]-[97] (Ward JA) and Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50 at [14]-[15]. For present purposes, the following may be noted.

43. First, it is ordinarily appropriate that all issues in proceedings should be disposed of at one time and that “[t]he attractions of trials of issues rather than of cases in their totality, are often more chimerical than real”: Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168].

44. Secondly, the exercise of the discretion to make an order for the determination of a separate question should be approached with an appropriate degree of caution, as “[i]t sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid”: Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436].

45. Thirdly, an order for determination of a separate question is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings, so as to give effect to s 56 of the Civil Procedure Act 2005 (NSW).

46. Fourthly, factors supporting the making of an order for the resolution of a separate question include where such an order may contribute to first, the prompt disposal of crucial issues in the litigation (or the whole action); second, the saving of time and costs by the narrowing of the issues in dispute; and third, in some matters, the potential settlement of the litigation.

47. It should also be remembered that the Court, in hearing Class 1 proceedings (which are usually conducted by a commissioner of the Court), is well-equipped to determine in any hearing any preliminary question that may be raised and it is trite that a court must always be satisfied before exercising jurisdiction in a matter and must always be satisfied before making an order that there is a power to do so.

48. I do not consider that it is appropriate for the Court to make an order under r 28.2 of the UCPR and I decline to do so. My reasons may be shortly stated.

49. First, it is indeed appropriate in this matter that all issues proceed to be disposed of at one time. The Court (comprising a judge or a commissioner) is well-equipped to decide all issues including permissibility and, as noted above, the Court must in every case be satisfied that it has the jurisdiction and the power to determine the disputes before it.

50. Second, there is no evidence that there would be any material saving of costs if an order was made pursuant to r 28.2 of the UCPR for the preliminary determination of the question in relation to permissibility.

51. Third, Mr Joseph has had, and will have the opportunity to put his concerns (and submissions) before the Court and again, as stated above, the dictates of just, quick and cheap resolution of disputes are adequately addressed by all matters being determined at the one hearing.

Conclusion

52. My findings above adequately dispose of the primary relief sought in the motion on the basis that expedition has been enjoyed, joinder is refused, the request for an order pursuant to r 28.2 of the UCPR is refused, the request for vacation of the conciliation hearing is refused, and the remainder of the nine orders sought in the motion are, in the circumstances, otiose.

Orders

53. The orders of the Court are:

1. The Notice of Motion filed by Mr Michael Joseph on 22 July 2024 is dismissed.

**********

Decision last updated: 07 August 2024