The Bunker 2017 Pty Ltd v North Sydney Council

[2019] NSWLEC 1241

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Bunker 2017 Pty Ltd v North Sydney Council [2019] NSWLEC 1241
Hearing dates:	22 & 27 May 2019
Date of orders:	28 May 2019
Decision date:	28 May 2019
Jurisdiction:	Class 1
Before:	Froh R
Decision:	The Court orders: (1)   The Notices of Motion are granted. (2)   The Owners – Strata Plan No 63731 are joined to proceedings 18/3225991; 18/326020 and 18/326024 as the Second Respondent. (3)   The Second Respondent is granted access to the joint expert reports filed in all 3 sets of proceedings and may attend on the Registry now for copies. (4)   The Second Respondent is to file and serve its Statement of Facts and Contentions in accordance with the findings set out in this judgment. (5)   The Applicant is to file and serve any Amended Statement of Facts and Contentions in Reply by 30 May 2019. (6)   The supplementary joint expert reports of town planning and building surveying are to be filed and served by 31 May 2019. (7)   The hearing dates of 4 and 5 June 2019 are confirmed.
Catchwords:	JOINDER – application for joinder – statutory tests
Legislation Cited:	Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005
Cases Cited:	Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361
Category:	Procedural and other rulings
Parties:	The Bunker 2017 Pty Ltd (Applicant) North Sydney Council (Respondent) The Owners – Strata Plan No 63731 (Applicant on the motion for joinder)
Representation:	Counsel: T To (Respondent) H Irish (Applicant on the motion for joinder)   Solicitors: S Gadiel, Mills Oakley (Applicant) Sparke Helmore (Respondent) Grace Lawyers Pty Ltd (Applicant on the motion for joinder)
File Number(s):	2018/325991; 2018/326020; 2018/326024
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. REGISTRAR: The Owners – Strata Plan No 63731 (Strata Plan) by three Notices of Motion filed on 13 May 2019, seek an order that it be joined as a respondent to the three Class 1 proceedings instituted by The Bunker 2017 Pty Limited (The Bunker) in respect of North Sydney Council’s (Council) deemed refusal of its development application, its modification application and what the parties have agreed is the Council’s rejection of The Bunker’s building information certificate application.

2. The Motion is opposed by The Bunker in all three proceedings, and Council neither consents to nor opposes the motions.

The statutory power to order joinder

3. Strata Plan sought joinder under the Court’s power pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) and rule 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR).

4. Section 8.15(2) states:

(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.

5. Rule 6.24 of the UCPR states:

(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.

6. I will firstly consider the joinder power under s 8.15(2) of the EPA Act.

7. It is well established that the exercise of the power pursuant to s 8.15(2) of the EPA Act involves two steps. The first step is that the Court is satisfied that one of the three limbs within s 8.15(2) has been satisfied. The second step is whether, in all of the circumstances of the application, the Court is satisfied that it ought to exercise its discretion to order a joinder.

8. At the hearing of the Motions, Strata Plan submitted that it satisfied all three limbs, meaning that it is able to raise issues that would not be sufficiently addressed if I do not to make an order for joinder and that it is in the interests of justice, and the public interest for me to make such an order.

9. These Notices of Motion were heard over two days. On the second day of the hearing, the Strata Plan helpfully provided the Court and the parties to the proceedings with a draft of its proposed Statement of Facts and Contentions which it proposes to rely on if joined to the proceedings.

10. The Strata Plan’s draft Statement of Facts and Contentions proposes to raise the following issues:

1. The applications lodged by the Applicant with the Respondent purport to solely relate to cubic space within Lot 148 but seek consent to use as office premises and modification of a consent to rely on existing works, or certification of existing works, that rely for future use on works carried out to adjoining common property owned by the Intervenor, without the Intervenor’s owner’s consent in writing;

2. The applications seek approval to regularise and use facilities that rely on work carried out to adjoining common property owned by the Intervenor without the Intervenor’s owners consent in writing;

3. The proposed use as office premises would have an unacceptable impact on the amenity and security of The Colonnades;

4. The use of office premises proposed under the development application fails to include an adequate waste management plan;

5. The modification application relied upon development application D588/01 which has lapsed;

6. The proposed use as office premises relies upon the modification application to allow use of existing works (shown in works as executed drawings) for the purposes of office premises, but those works rely for future use on works carried out to adjoining common property owned by the Intervenor, without the Intervenor’s owners consent in writing; and

7. The Building Information Certificate Application does not clearly and definitively identify the building or part of a building or structure in respect of which the certificate is sought.

11. Counsel for the Strata Plan submitted that these issues are not likely to be addressed or sufficiently addressed if the Strata Plan is not joined. It was also submitted that although the hearing dates are close that the listing of the hearing on 4 and 5 June 2019 can be maintained.

12. Turning now to the Council’s Statement of Facts and Contentions, the Council contends that:

1. The consent as sought to be modified by modification application DA588/01/1 has lapsed;

2. The proposed modifications do not result in a development that is substantially the same development for which the consent was originally granted;

3. The office use proposed under development application DA294/18 would have an unsatisfactory impact on residential amenity within the development;

4. The building information certificate does not include the consent of the owners corporation;

5. The works comprising plumbing and sanitary fixtures and fittings carried out in Lot 148 extend into and rely upon works and services within the common property; and in the circumstances, neither the Council nor the Court on appeal can or should issue a building information certificate under s 6.25(1) of the EPA Act for the plumbing and sanitary works and services within the airspace of Lot 148; and

6. Approval of the proposed applications would be contrary to the public interest.

13. During submissions, counsel for the Council stated that at hearing it would no longer be pressing Contention 3 and Contention 5. There is also evidence from the exhibit to the affidavit of Mr Ton sworn on 10 May 2019 that in Council’s solicitor’s letter to the Applicant’s solicitor that Council has instructed its solicitors that it is willing to enter into a s34 agreement with the Applicant in respect of the development application appeal and has inquired whether, on that basis, the Applicant would consent to the withdrawal of the modification appeal and the building information certificate appeal proceedings.

14. There is no response to that letter in evidence before the Court. The solicitor for The Bunker made submissions that despite Council’s offer to enter into a s34 agreement with regards to the development application appeal, the parties have not approached the Court to arrange a s34 conciliation conference and the hearing remains listed for 4 and 5 June 2019 for all three appeals.

15. There is evidently overlap between the Council’s contentions and the Strata Plan’s proposed contentions. The Strata Plan’s proposed Contention 5 is drafted on similar terms to Council’s Contention 1 and Strata Plan’s proposed Contention 3 is similar to Council’s Contention 3. However, the Council has put the Court on notice of its position in relation to the proceedings and has informed the Court that Council’s Contention 3 and Contention 5 will not be pressed at hearing.

16. The applicant for development consent has helpfully referred me to a number of case law authorities, including Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361 and submitted that based on those authorities, it is not be necessary for the Court to join the strata plan in order for the Court to consider the issues Strata Plan wishes to raise or could be dealt with by the Court by way of conditions.

17. The applicant submits that the Strata Plan’s proposed contentions are already raised by Council in its Statement of Facts and Contentions and also contained in the various submissions that the Strata Plan and various owners and occupiers of the building have made to the Council.

18. As such, in the usual course, the Council’s bundle of documents would be tendered at the hearing of the appeal and that bundle of documents would include all submissions, including submissions made by Strata Plan and the owners and occupiers of the building.

19. The Bunker submits, therefore, that the Court would have available the issues that Strata Plan seeks to agitate, and the Court could take into account those issues. It is not necessary, the applicant submits, to join the Strata Plan in order for the Court to be able to consider those issues.

20. My view is that the similar construction of Strata Plan’s Contention 5 to Council’s Contention 1 means that this issue is squarely before the Court and will be sufficiently addressed by the Court in the hearing of this matter.

21. As the Court has been informed that Contention 3 is not to be pressed by the Council, I consider it likely that Strata Plan’s proposed Contention 3 will not be before the Court for its consideration.

22. The balance of the Contentions proposed to be raised by Strata Plan are issues that are not currently before the Court for its consideration.

23. It is true that the Court can of its own volition raise an issue even if it is not raised in the statements of facts and contentions by the consent authority or an applicant to an appeal. However, if neither the applicant nor the consent authority is raising that contention, there will be no contradictor. The matter will simply be raised but the Court will have inadequate argument about the issue.

24. My view is that Contentions 1-4 and 6 of the Strata Plan’s draft Statement of Facts and Contentions would not be capable of being sufficiently addressed if they are not before the Court as contentions.

25. As such, I consider this first limb of the test in s 8.15(2) of the EPA Act to be satisfied.

26. Having already found that one limb under the three part test set out in s 8.15(2) is satisfied, I do not need to consider whether joinder is necessary on public interest grounds or in the interests of justice or under r 6.24 of the UCPR, and will instead turn to whether the exercise the discretion under s 8.15(2) to allow joinder.

27. During the course of hearing these Notices of Motion, much time was spent in relation to the distinction between property rights and an approval, consent or permit obtained under planning laws. It is important at this point for me to note that the fact that a right, be it a property right or otherwise, may be interfered with as a result of a development or modification application is not grounds for joinder in and of itself. Rather, it is the fact that these issues have not been raised in the proceedings and as such not before the Court for its consideration.

28. I do not consider Contentions 1-4 and 6 that the Strata Plan proposes to raise to be capable of being sufficiently addressed in the proceedings without its joinder and I consider those contentions to be relevant matters that should properly be before the Court for its consideration.

29. As such, I am satisfied that it is appropriate for me to exercise my discretion to join Strata Plan as the second respondent to the proceedings.

30. I should note, however, that the basis for the joinder is that the Strata Plan only raise contentions 1-4 and 6 of its draft Statement of Facts and Contentions that were exhibited as Exhibit G at the hearing of the Notices of Motion and have provided the basis for its application for joinder.

Orders

31. The Court orders:

1. The Notices of Motion are granted.

2. The Owners – Strata Plan No 63731 are joined to proceedings 18/3225991; 18/326020 and 18/326024 as the Second Respondent.

3. The Second Respondent is granted access to the joint expert reports filed in all 3 sets of proceedings and is to attend on the Registry now for copies.

4. The Second Respondent is to file and serve its Statement of Facts and Contentions in accordance with the findings set out in this judgment.

5. The Applicant is to file and serve any Amended Statement of Facts and Contentions in Reply by 30 May 2019.

6. The supplementary joint expert reports of town planning and building surveying are to be filed and served by 31 May 2019.

7. The hearing dates of 4 and 5 June 2019 are confirmed.

……………………………

S Froh

Registrar of the Court

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Decision last updated: 31 May 2019