Triple Blue Pty Ltd v Woollahra Municipal Council

[2020] NSWLEC 27

Land and Environment Court

New South Wales

Medium Neutral Citation:	Triple Blue Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 27
Hearing dates:	1 April 2020
Date of orders:	01 April 2020
Decision date:	01 April 2020
Jurisdiction:	Class 1
Before:	Duggan J
Decision:	See paragraph 30
Catchwords:	CIVIL PROCEDURE – parties – joinder – of defendants – s 8.15(2) Environmental Planning and Assessment Act 1979 – whether issues raised would be sufficiently addressed absent joinder – whether delay in bringing the application precludes joinder – joinder granted
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land Environment Court Act 1979
Cases Cited:	Avalon Beach Property Proprietary Limited as Trustee for the Avalon Beach Property Trust v Northern Beaches Council (2017) 227 LEGRA 393
Category:	Procedural and other rulings
Parties:	Triple Blue Pty Ltd (Applicant) (Respondent on the motion) Andrew Gray (Applicant on the motion) Emma Gray (Applicant on the motion) Woollahra Municipal Council (Respondent) (Respondent on the motion)
Representation:	Counsel: Ms Reid (Applicant) (Respondent on the motion) Mr Lazarus SC (Applicants on the motion) Mr Ede (Respondent) (Respondent on the motion)   Solicitors: Pikes & Verekers Lawyers (Applicant) (Respondent on the motion) Mills Oakley (Applicants on the motion) Wilshire Webb Staunton Beattie Lawyers (Respondent) (Respondent on the motion)
File Number(s):	2019/287018
Publication restriction:	No

EX TEMPORE Judgment

1. HER HONOUR: This is application brought by the owners and occupiers of premises known as 3 Cranbrook Road, Bellevue Hill to be joined as a party in these proceedings (the Intervenors). 

2. The Applicant in the proceedings (Triple Blue) has lodged a development application with the Respondent (the Council) for alterations and additions to an existing residential flat building at 593 New South Head Road, Rose Bay (the Site).  The Site is immediately adjacent to the Intervenors’ Land.

3. The Development application was publicly notified.  The Intervenors lodged submissions objecting to the development application for reasons that included the impacts on their views to Sydney Harbour and the impacts on the heritage significance of their building. 

4. The Council officers prepared a report to the Council's Local Planning Panel (the Panel) recommending approval of the development application subject to conditions. 

5. The Panel considered the development application at its meeting on 8 July 2019.  Oral submissions were made to the Panel on behalf of the Intervenors that included the heritage and view loss issues. 

6. The Panel resolved to refuse the development application on grounds that did not include the heritage or the view loss issues raised by the Intervenors.

7. Both of the buildings on the Intervenors’ Land and the Site are items of Environmental Heritage listed in the Council's Local Environmental Plan, (LEP).  Any development application on the Site requires the consideration of the impacts upon the heritage significance of the item the subject of the application and any other item in its vicinity.  The Council and Triple Blue have both identified the Intervenors’ building as a relevant item for the purpose of that consideration. 

8. Triple Blue has appealed the refusal by proceedings commenced on 13 September 2019.

9. The Council filed a Statement of Facts and Contentions on 20 December 2019.  The Statement of Facts and Contentions raised issues relating to the impacts on the heritage significance of the building on the Site, but not the impacts on the heritage significance of any other item in the vicinity, or the impacts on the Intervenors' views to the harbour.

10. The Intervenors were provided with a copy of the Statement of Facts and Contentions on 20 January 2020. 

11. A conciliation conference was ordered pursuant to s 34 of the Land Environment Court Act 1979. That conference took place on 14 February 2020 and was adjourned on that day to a further conference, which is now listed on 6 April 2020.

12. Triple Blue and the Council have, as a consequence of the conciliation conference, reached what is referred to as an “in principle” agreement for the resolution of the matters in contention in the proceedings.  It is intended that an agreement seeking the grant of development consent will be provided to the Court.  Such a s 34 Agreement has not yet been provided to the Court. 

13. The Intervenors were advised of the in principle agreement by email on 27 February 2020.  This notice of motion was filed on 13 March 2020.

14. Triple Blue opposes the joinder of the Intervenors.  The Council neither consents nor opposes the application for joinder. 

15. The Intervenors and Triple Blue have both adduced affidavit evidence and made oral and written submissions in connection with the notice of motion. 

16. Section 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) makes provision for the joinder of a party to class 1 proceedings in the following terms: 

(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.

17. The Intervenors contend that they are a necessary party to be joined pursuant to s 8.15(2) as, in effect, they were able to raise an issue that will not be sufficiently addressed absent their joinder, which in substance are:

1. The heritage impacts of the development on their heritage listed building known as Rothesay (the Heritage Issue); and

2. The failure of the development to comply with cl 26 of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP), in that it does not maintain, enhance and protect views from their building to Sydney Harbour (the View Issue).

18. With respect to the Heritage Issue the Intervenors highlighted that, on the evidence, the Council had not raised the issue in the Statement of Facts and Contentions and that both Triple Blue's heritage report and the report of the Council officer (together with the Heritage Referral comments) had only superficially addressed the heritage impacts on their building.

19. With respect to the View Issue the Intervenors accepted that views to and from Sydney Harbour and the provisions of the SREP have been more expansively addressed in the Council report.  However, they submitted that the issue they wished to raise was more “nuanced”, in that it connected the view impacts to the formulation of such a consideration as was required by the terms of the SREP (as opposed to general merit considerations).

20. Triple Blue submitted that the Intervenors’ issues had been adequately addressed by the Council as the Intervenors had taken advantage to raise the Heritage and View Issues on each occasion that the matter was considered by the Council.  The fact that the Council had declined, after consideration of those submissions, to raise the matter as a contention warranting refusal in the Statement of Facts and Contentions, did not give rise to a need to be joined.  The issue could be sufficiently addressed by reference to the Intervenors' submissions without the joinder.

21. Further, Triple Blue submitted that the delay in bringing the application for joinder and the consequential cost and delay that would be occasioned if the Intervenors were joined would indicate that the discretion should not be exercised in the Intervenors' favour.

22. Having considered the evidence and submissions in this matter I consider that it is appropriate the Intervenors be joined to ensure that the Heritage Issue relating to the impacts on the heritage significance of the Intervenors' heritage item so that such issue can be sufficiently addressed. 

23. Whilst both the Council and Triple Blue have identified the Intervenors’ heritage item as being a necessary item for the undertaking of the mandatory consideration under the heritage provisions in the LEP, the material provided to me indicates that there has, at best, been a cursory consideration of the potential impacts on the Intervenors’ item. Whilst the Intervenors have provided on each occasion detailed submissions from a qualified heritage consultant (as well as other ancillary disciplines) addressing the Heritage Issue, the material does not evidence any real engagement by the Council or Triple Blue with the issue, such that it can be said that the issue has been sufficiently addressed. To leave it to the Court to determine this mandatory matter solely on the Intervenors' material alone, without the benefit of an active contradictor, would not permit a sufficient addressing of this issue.

24. I propose to direct the Intervenors to file a Statement of Facts and Contentions.  The leave I give in connection with that direction is limited only to the Heritage Issue raised by them.  As was observed by Preston CJ in Avalon Beach Property Proprietary Limited as Trustee for the Avalon Beach Property Trust v Northern Beaches Council (2017) 227 LGERA 393 at [24]:

Once a person is joined as a party they have all of the rights of a party.  In one sense this could include raising other issues than the five issues that I have articulated.  However, the neighbour would require leave to advance any further issues.  As happened in Manderrah Pty Ltd v Woollahra Municipal Council (No 2) (2013) NSWLEC 115, the Court may decline to allow any issues to be raised other than the five issues which were the basis for the joinder. I am not precluding any application being made in the future, but merely indicate that the basis for the joinder is the five issues that have been raised

25. On the same basis and for the same reasons I limit the issues to be raised at this juncture to the Heritage Issue as identified.

26. I do not consider that the View Issue cannot be sufficiently addressed absent the joinder of the Intervenors.  The issue of the impact on the views to the harbour from their premises has been the subject of consideration by both the Council and Triple Blue and with the benefit of the Intervenors' submissions.  The View Issue can be sufficiently addressed in the context of the SREP requirements by the Court in its assessment of that material and the identified provisions of the SREP without a further contradictor.

27. I note that by declining to order the joinder of the Intervenors on the basis of the View Issue I do not intend in any way to indicate that any or further evidence of the impacts on views to and from the Intervenors’ building is not to be considered.  I accept that on the basis of the manner in which the Heritage Issue is formulated that issues, for example, relating to the bulk and scale of the proposed building, the impact on screening trees and the impacts on the views, may have some connection with the impact on the heritage significance of their item.  It is in that context that the evidence should be addressed and it will be a matter for the Commissioner who considers this matter (either in the context of a s 34 conciliation conference or a hearing on the merits) to determine what evidence is relevant and/or persuasive.

28. There was some delay in the bringing of this application.  Clearly the Intervenors were aware on the date in January they received the Statement of Facts and Contentions and as at the date of the s 34 conference, that the Council had not raised the issues identified by them.  They would also have been aware that the Council was required, in a bona fide manner, to attempt to resolve the matter completely or to reduce the number of issues in dispute at the s 34 conference.  It would be unreasonable for any person in such circumstances to assume that the Council's position would not change.

29. However, whilst that delay is unfortunate, I do not consider it to be a matter that would operate to preclude the joinder in the exercise of my discretion.  Nor do I consider, to the extent that there may be additional time expended in the future conduct of this matter with the addition of the Intervenors as a party, that would produce a prejudice that would operate to preclude joinder or require an order for costs being made.  The s 34 conference has, to date, been productive.

30. The parties agree that it is appropriate that the costs of the motion be dealt with in accordance with the usual order as provided for in the LEC Rule 3.7, namely that there should be no order for costs on this motion.  Accordingly I will make no order as to costs.  For those reasons I make the following orders and directions:

1. The Court orders that Andrew Gray and Emma Gray are joined as parties to these proceedings.

2. The Court directs that:

1. Andrew Gray and Emma Gray are directed to file a statement of facts and contentions raising for determination whether there is an unacceptable impact from the proposed development upon the heritage significance of the heritage item known as Rothesay, located at 3 Cranbrook Road, Bellevue Hill, by 4pm on 2 April 2020.

2. A notice of appearance by the legal representatives of Andrew Gray and Emma Gray be filed by 4pm, 2 April 2020.

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Decision last updated: 07 April 2020