Williams v Warringah Council

[2001] NSWLEC 245

Land and Environment Court

of New South Wales

CITATION:	Williams v Warringah Council [2001] NSWLEC 245
PARTIES:	APPLICANTS Stevan Williams and Janelle Williams RESPONDENT Warringah Council
FILE NUMBER(S):	10474 of 2001
CORAM:	Sheahan J
KEY ISSUES:	Development Consent :- application to modify - right of objectors to participate in hearing - limitations on such participation
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Chriss v Williams [1988] NSWLEC 33; Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313; Humphrey & Edwards Pty Ltd v Woollahra Municipal Council [1998] NSWLEC 285; Jenkins v Leichhardt Council [2000] NSWLEC 150; Naylor Shaw Associates Pty Ltd v Sutherland Shire Council [1999] NSWLEC 11; Ziatabari v Ku-ring-gai Council [1999] NSWLEC 139
DATES OF HEARING:	20/09/2001
EX TEMPORE JUDGMENT DATE :	09/20/2001
LEGAL REPRESENTATIVES:	APPLICANTS Mr Tomasetti (Barrister) Cowley Hearne (Solicitors) RESPONDENT J Smith (Solicitor) Wilshire Webb (Solicitors) OBJECTORS (Trumper and Wilkins) Mr Wright (Barrister) Deacons (Solicitors)

JUDGMENT:

STEFAN WILLIAMS and JANELLE WILLIAMS

Applicants

v

WARRINGAH COUNCIL

Respondent

JUDGMENT

1. This class 1 appeal concerns the proposed modification of a development consent held by Mr & Mrs Williams for construction of a residential flat building at 75 Undercliff Road Harbord.

2. It is set down for hearing on 1-2 November 2001.

3. Tim Trumper and Elizabeth Wilkins of 77 Undercliff Road have moved the court today for orders granting them leave to participate in the proceedings, to oppose the granting of consent to the modification sought by Mr & Mrs Williams.

4. Trumper and Wilkins hold a development consent to redevelop No. 77, directly adjacent to Williams’ property.

5. Their consent was modified to implement part of the outcome of a Council-sponsored mediation of their objections to the original Williams development application. As I understand their position, they claim that the Williams’ modification application now before the court undoes some of the perceived improvement they obtained in the Williams proposal by participation in that mediation.

6. The council is opposed to the Williams’ modification, and is resisting this appeal. It has raised eleven matters of contest in its statement of issues filed 8 August 2001.

7. The neighbouring objectors, Trumper and Wilkins, contend that their concerns are not adequately addressed by those nominated issues. They wish to participate in the hearing, to deal with those issues from their particular point of view, and to press various other submissions on fact and merit, indicated in Mr Trumper’s affidavit of 17 September 2001.

8. Clearly their interests are closely involved in this appeal. The fact, outcome, and consequences to their own development, of the mediation in which they participated, give them a closer interest than that of the usual neighbouring objector to a development application.

9. The line of relevant authority on such applications in this court has been cited in argument today.

10. Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 makes clear that, in the “special circumstances” of a particular case, the trial judge may allow the views of objectors to be put independently to the court.

11. While Bignold J suggests, in Chriss v Williams [1988] NSWLEC 33, that only the presiding judge or assessor (now commissioner) should grant such leave, I agree with Mr Wright that case management requirements indicate that the duty judge might exercise the court’s discretion before the hearing, so far as the grant of leave is concerned, and then leave it to the trial judge or commissioner to control its exercise.

12. In all other respects the Chriss decision affirmed Double Bay Marina – the beneficiary of leave, of the type granted in Double Bay Marina, has “limited and qualified rights”, short of status as a party to the appeal.

13. I have taken advantage of the short adjournment to read the subsequent cases referred to in argument, namely Humphrey & Edwards Pty Ltd v Woollahra Municipal Council [1998] NSWLEC 285, Naylor Shaw Associates Pty Ltd v Sutherland Shire Council [1999] NSWLEC 11, Ziatabari v Ku-ring-gai Council [1999] NSWLEC 139, and Jenkins v Leichhardt Council [2000] NSWLEC 150. Each case turns on its own facts and circumstances.

14. Objectors are heard by this court every day, even when the parties to planning and development appeals settle their differences by agreeing upon consent orders.

15. Consent orders would appear unlikely in this case, but clearly the concerns of Trumper and Wilkins arise in quite unusual or special circumstances, and I have concluded that they should be granted leave to participate in the hearing.

16. The leave they seek in their Notice of Motion is far from limited.

17. The Council does not oppose the motion, but required particulars to be given of precisely what the objectors can do in the exercise of any leave granted.

18. The applicants opposed the granting of any leave, but quite properly adopted a detailed fallback position, on which Mr Tomasetti put to the court some sensible submissions as to how leave, if granted, should be circumscribed.

19. In the light of all the circumstances, and the parties’ rights to clearly know the role of any interveners, I have decided to grant leave in the following terms:

20. Both Mr Trumper and Ms Wilkins shall have leave to participate in this appeal by the following means:

(a) having legal representation before and at the hearing;
(b) being served with copies of all affidavits, statements of evidence and expert reports upon which the parties intend to rely;
(c) giving evidence on affidavit and, if required for cross-examination by a party, orally at the hearing;
(d) adducing further lay and expert evidence relevant to the issues in the proceedings, as detailed in any statement of issues filed by the parties;
(e) cross-examining witnesses relied upon by the parties, to the extent (if any) allowed by the judge or commissioner presiding at the hearing; and
(f) making submissions at the conclusion of the hearing.

21. I direct Mr Wright to file an appearance on behalf of the interveners by close of business tomorrow, and I believe the matter should be listed for callover before the Registrar at an early date for the giving of any necessary further directions. The parties and the interveners might confer and agree upon such directions.

22. I stand the matter over to the Registrar’s callover on Tuesday 25 September 2001 for further directions.

23. The exhibits, including the folder exhibited to Mr Trumper’s affidavit, may be returned, and I will formally reserve the question of costs.