The Scots College v Woollahra Municipal Council

[2022] NSWLEC 1379

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Scots College v Woollahra Municipal Council [2022] NSWLEC 1379

Hearing dates:

13 July 2022

Date of orders:

13 July 2022

Decision date:

13 July 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The notice of motion is granted.

(2) That Mr Ian Joye is granted leave to be joined as a party to the above named proceedings as the second respondent, pursuant to section 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW).

(3) The matter is stood over to the s34 conciliation conference on 29 July 2022 at 9:30am with an onsite view.

Catchwords:

NOTICE OF MOTION – application for joinder – adverse impact on residential amenity of noise emanating from The Scots College premises located adjacent to the property of the applicant for joinder – cumulative impact of noise and traffic on residential amenity resulting from increased student numbers

Legislation Cited:

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

Category:

Procedural rulings

Parties:

The Scots College (Applicant)
Woollahra Municipal Council (Respondent)
Ian Joye (Applicant for joinder)

Representation:

Counsel:
S Peters (Solicitor) (Applicant)
S Simington (Solicitor) (Respondent)
S Kanagaratnam (Applicant for joinder)

Solicitors:
Colin Biggers & Paisley (Applicant)
Lindsay Taylor Lawyers (Respondent)
Herbert Smith Freehills (Applicant for joinder)

File Number(s):

2021/197166

Ex tempore Judgment

1. This Class 1 appeal involves the development of The Scots College (the College) at Bellevue Hill, including an increase in student numbers.

2. The background facts and contentions are explained in the College’s Statement of Facts and Contentions (SOFAC) filed on 18 October 2021 and the Woollahra Municipal Council’s SOFAC in Reply filed on 29 June 2022.

3. By Notice of Motion filed on 24 September 2021 (Motion), Mr Ian Joye seeks leave to be joined as a party to the proceedings pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). The Motion is supported by Mr Joye’s affidavit sworn on 24 September 2021, together with exhibit “IJ-01” to that affidavit, and the affidavit of Thomas Dougherty affirmed on 11 July 2022, together with exhibit “TD-01”.

4. The College and the Council neither consents to nor opposes the joinder.

5. Section 8.15(2) of the EPA 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.

6. Put simply, the section gives the Court power to join a person to proceedings in certain circumstances. The first is if the person is able to raise an issue that should be considered in relation to the appeal which would not likely be sufficiently addressed if the person were not joined as a party (s 8.15(2)(a)). The second is if it is in the interests of justice or it is in the public interest that the person be joined as a party to the appeal (s 8.15(2)(b)).

7. After hearing from the parties and a consideration of the written submissions filed on behalf of Mr Joye dated 11 October 2021 and 11 July 2022, I am persuaded in this case to exercise my discretion to order the joinder of Mr Joye as the second respondent to these proceedings. In forming that opinion, I accept as Mr Kanagaratnam, counsel for the applicant on the motion, submitted that Mr Joye is able to raise important issues which have arisen by reason of the increase in student numbers from 1,120 to 1,520 and the resulting intensification of use, that should be considered in relation to the appeal but are not likely to be sufficiently addressed if he is not joined as a party namely:

“(i) adverse impact on residential amenity of offensive noise emanating from the school premises located adjacent to his property; and

(ii) cumulative impact of noise and traffic (including related issues such as access and parking) on residential amenity resulting from increased student numbers…”

(Mr Joye’s written submissions filed on 11 July 2022, par 4(a)(i)-(ii))

8. As an adjoining landowner, I accept that these issues have a specific, direct and significant impact on Mr Joye’s amenity and ability to use his property, such that the interests of justice require that he be joined as a party.

9. Furthermore, it is in the public interest that Mr Joye raise and serve independent expert evidence in relation to the issues identified at [7] above. In the circumstances, I accept that Mr Joye, who is a long-term resident of the adjoining property, is an appropriate and necessary contradictor because he provides a counter point to the Council who is under the instructions of the Panel which granted the consent appealed from. I am told that Mr Joye is willing and able to assist the Court and community by funding the provision of independent expert acoustic and traffic evidence in the appeal and that he has engaged Dr Tonin and Mr Rich. Ultimately, it is in the public interest that expert evidence addressing the impact of increased student numbers on noise and traffic and the amenity of the adjacent developments is considered by the Court.

10. Importantly, the parties agree that the joinder of Mr Joye as a party will not result in any delay to the conduct of the proceedings or prejudice to the existing parties.

11. Accordingly, the Court orders:

1. The notice of motion is granted.

2. That Mr Ian Joye is granted leave to be joined as a party to the above named proceedings as the second respondent, pursuant to section 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW).

3. The matter is stood over to the s34 conciliation conference on 29 July 2022 at 9:30am with an onsite view.

………………………

S Dixon

Senior Commissioner of the Court

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Decision last updated: 14 July 2022