Yarranabbe Property Pty Ltd v Woollahra Municipal Council

[2020] NSWLEC 122

Land and Environment Court

New South Wales

Medium Neutral Citation:

Yarranabbe Property Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 122

Hearing dates:

19 August 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Class 1

Before:

Duggan J

Decision:

See paragraphs 40 to 42

Catchwords:

CIVIL PROCEDURE – parties – joinder – r 6.27 Uniform Civil Procedure Rules 2015 – s 8.15(2) Environmental Planning and Assessment Act 1979 – whether issues raised would be sufficiently addressed absent joinder where s 34(3) Land and Environment Court Act agreement is made – sufficient material before the Court

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Uniform Civil Procedure Rules 2015

Cases Cited:

Morrison Design Partnership Pty Ltd v North Sydney Council [2007] 159 LGERA 361

Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243

Category:

Procedural and other rulings

Parties:

Yarranabbe Property Pty Ltd (Applicant) (Respondent on the Motion)
John Roth (Applicant on the Motion)
Jillian Segal (Applicant on the Motion
Woollahra Municipal Council (Respondent) (Respondent on the Motion)

Representation:

Counsel:
Mr A Galasso SC (Applicant) (Respondent on the Motion)
Mr C McEwen SC (Applicants on the Motion)
Mr J Fan (Respondent) (Respondent on the Motion)

Solicitors:
Hones Lawyers (Applicant)(Respondent on the Motion)
Addisons Lawyers (Applicants on the Motion)
Lindsay Taylor Lawyers (Respondent) (Respondent on the Motion)

File Number(s):

2019/372347

Publication restriction:

No

EX TEMPORE Judgment

1. HER HONOUR: This is an application brought by the owners and occupiers of premises known as 83 and 83A Yarranabbe Road, Darling Point (the Intervenors’ Land) to be joined as parties to these proceedings.

2. The proceedings relate to the Class 1 appeal brought by Yarranabbe Property Pty Ltd (the Applicant) against the then deemed refusal by Woollahra Municipal Council of a development application for the partial demolition of, together with alteration additions to, an existing residential flat building (the DA) at 77-81 Yarranabbe Road, Darling Point (the Subject Site). The DA has now been determined by an actual refusal.

3. The Intervenors’ Land shares its eastern boundary with the Subject Site. Number 83 Yarranabbe Road comprises an existing four-storey single dwelling house proximate to the Yarranabbe Road frontage. Number 83 also has the benefit of a development consent for the demolition of the dwelling house and the construction of a residential flat building. Number 83A is a two-storey single dwelling at the frontage to Sydney Harbour. Both of the existing dwellings presently enjoy views to Sydney Harbour, the Sydney Harbour Bridge and the Opera House. The approved development for Number 83 Yarranabbe Road, if undertaken, will also enjoy views of the same features of the harbour and Sydney icons.

4. At least some of these views are obtained over the side boundary and across the Subject Site. It is accepted by all parties that the DA is likely to have impacts upon views primary from Number 83 both in its current configuration and as configured in the approved development for the residential flat building.

5. The DA was first lodged with the Council on 1 June 2018 and was replaced with amended plans on 13 August 2019. The DA was again amended on 2 July 2019. The 2 July 2019 plans became the plans the subject of assessment by the Council.

6. The DA was subject to notification in accordance with Council’s notification requirements. The Intervenors have (both through themselves and through experts retained on their behalf) made submissions in opposition to the DA on each occasion that submissions were called and when made aware of changes to the DA as proposed.

7. The appeal was commenced in this Court on 26 November 2019.

8. The DA was refused by the Woollahra Local Planning Panel on 6 February 2020. The Council filed a Statement of Facts and Contentions on 27 February 2020 indicating that the DA should be refused on grounds consistent with the Notice of Determination relating to:

1. Excessive bulk, height and scale;

2. Unacceptable streetscape impacts;

3. Unacceptable public and private view impacts, including a reference to the State Environmental Planning Policy (Sydney Harbour Catchment);

4. The breaches to the development standards relating to height and floor space ratio not being justified;

5. Noncompliance with the Apartment Design Guide; and

6. Insufficiency of information.

9. A s 34 conference occurred on 6 August 2020 at which time the Court attended at the Subject Site. As part of the Court process, but prior to the conciliation commencing, the Court heard evidence from a number of persons. For the purposes of this application, submissions were made to the Commissioner on behalf of the Intervenors by Mr Roth, Mr Tzannes and Mr Maurici. In addition, the Commissioner also took a visual inspection of each level of the existing dwelling house on Number 83. The matter then moved to closed session with no further participation from the Intervenors.

10. The s 34 conference has been adjourned pending the outcome of this joinder application.

11. A further amendment to the architectural plans the subject of the DA dated 6 February 2020, and updated cl 4.6 variations relating to the development standards for height and floor space ratio were also prepared. These plans were submitted to the Council on a date which is not apparent from the evidence.

12. By email dated 13 August 2020 the solicitor for the Council provided to the solicitor for the Intervenors a copy of the amended architectural plans dated 6 August 2020 and revised cl 4.6 variations. By further email on the same day the Council’s solicitor provided a schedule of amendments to the amended plans.

13. By email dated 14 August the solicitor for the Council advised the solicitor for the Intervenors of the following:

Council has reach (sic) an agreement in principle with the applicant.

Subject to confirmation and final review that the plans and clause 4.6 variation requests are acceptable, as well as finalisation of conditions of consent, the Council intends to enter into an agreement under section 34(3) of the Land and Environment Court Act with the applicant to dispose of the proceedings.

We will await the determination of the application for joinder.

14. By email dated 18 August 2020 from the Council’s solicitor to the Intervenors’ solicitor (which was not tendered into evidence but the substance of which was reproduced at [8] of the Intervenors’ submissions) the Intervenors were advised:

…the amended plans and documentation received last week are acceptable to Council.

Accordingly, Council intends to enter into an agreement with applicant (sic) to dispose of the proceedings by the grant of consent.

Council is presently preparing conditions consent (sic) which will then be provided to the applicant for their review.

15. All parties have requested that the application be determined on the assumption that the Council now proposes to enter into an agreement with the Applicant pursuant to s 34(3) of the Land and Environment Court Act 1979 (LEC Act).

Statutory provisions

16. The Intervenors seek to be joined as a party to the proceedings pursuant to the Uniform Civil Procedure Rules 2015 (UCPR) r 6.27 and s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act) which provisions are in the following terms:

6.27 Joinder on application of third party

A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant.

8.15(2) 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.

17. The consideration of an application under s 8.15(2) is a two-step process to determine whether the requirements of s 8.15(2) are met and next, whether an order for joinder is justified in the exercise of the Court’s discretion (see Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44]).

The Intervenors’ submissions

18. The Intervenors accept that the relevant provisions for the consideration of a joinder application as in this case is that contained in s 8.15(2) of the EP&A Act and that the power conferred by UCPR r 6.27 adds nothing further to the consideration such that it requires a separate determination raising issues other than those relating to the s 8.15(2) consideration.

19. The Intervenors’ primary basis for seeking an order is that raised in accordance with s 8.15(2)(a) in that they assert that they are able raise an issue that should be considered but is not likely to be sufficiently addressed if they are not joined as a part in respect of the following matters identified at [16] of the Intervenors’ submissions.

a.   Errors or omissions in the DA documents, including the amended DA documents provided by the Applicant last week;

b.   Insufficient clause 4.6 variation requests for height and FSR;

c.   Overshadowing impacts;

d.   Privacy impacts;

e.   Insufficient Apartment Design Guide (ADG) assessment and ADG non-compliance;

f.   Misdescription of the proposed development as ‘alterations and additions’;

g.   Non-compliance with Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005;

h.   Private and public view loss; and

i.   Excessive height, bulk and scale.

20. The Intervenors, if joined, propose to call expert town planning and architectural evidence to address these issues and will make submissions in support of the refusal of the DA. Whilst the list of issues the Intervenors seek to raise is lengthy, the primary focus of the Intervenors’ submissions was the impact of the DA upon their views and the sufficiency of the cl 4.6 variations, particularly in so far as the variations required an assessment of the impact on views.

21. The Intervenors contends that the cl 4.6 variations are deficient and therefore could not support an approval of the DA. It was further submitted that if the Council is accepting the cl 4.6 variations, where there are such deficiencies, the Court will be unable to sufficiently address the matter without submission from the Intervenors. The Intervenors’ basis for joinder was summarised in their written submissions at [21] in the following terms:

21   It is submitted that given the issues that the Intervenors seek to raise are either not raised by the Council or are not intended to be pressed by the Council, but ought to be considered by the Court:

a.    The issues raised by the Intervenors are issues that need to be ventilated.

b.   There is no other way that these issues can be properly determined other than allowing joinder of the Intervenors; and

c.   The Court’s consideration of these issues, absent the joinder of the Intervenors, would be inadequate and they would not be sufficiently addressed; and

d.   If the Intervenors are not joined to the proceedings, there will be no contradictor.

22. In the alternative, the Intervenors submit that they should be joined pursuant to s 8.15(2)(b) as it will be both in the interests of justice and the public interest for the Intervenors to be joined as the Intervenors being adjoining landholders will be materially affected by the DA and their interests will be affected. In addition, the Intervenors raise issues such as public view loss that has a broader public interest.

The Applicant’s submissions

23. The Applicant submitted that this was not a case where the necessary issues could not be sufficiently addressed without joinder by the Intervenors. The Applicant took the Court to each of the Intervenors’ submissions to indicate that the issues that they now seek to raise in the appeal have been the subject of extensive and detailed submissions by them on each occasion.

24. The Applicant then took the Court to the Council’s officer’s assessment report to the Local Planning Panel to indicate a comprehensive assessment of all relevant considerations, including, but not limited to, the submissions of the Intervenors. The Council officer turned his own mind to the submissions of the Intervenors and considered the issues raised by them with the benefit of their submission and a view of the Intervenors’ Land. He then undertook an assessment. The Council officer recommended refusal of the DA on a number of grounds, many of which coincided with the submission of the Intervenors.

25. Accordingly, the Court could be satisfied that the issues raised between the parties have been genuinely assessed by the Council and that the issues have been sufficiently considered such that the joinder of the Intervenors is not necessary to permit the sufficient addressing of the issue.

26. The mere fact that the Council, through the process of conciliation and further amendments to the DA, is now satisfied on merit with the proposal is not sufficient to warrant joinder. The legislative scheme anticipates that a consent authority can resolve Court proceedings and the Court must give an effect to an agreement pursuant to s 34(3) provided that it is one that can lawfully be made. In this context, s 8.15(2) should not be read as providing for joinder in all cases where there is an agreement. The question for joinder is whether the issue can be sufficiently addressed.

The Council’s submissions

27. Appropriately, the Council took the neutral position that it neither consented nor opposed the making of the orders sought in the Notice of Motion, leaving the matter for argument between the Intervenors and the Applicant. The Council indicated that it would make submissions to assist the Court if required. As no assistance was sought, the Council did not make any submissions on the Notice of Motion.

Determination of application for joinder

28. In Morrison Design Partnership Pty Ltd v North Sydney Council [2007] 159 LGERA 361, Preston CJ considered the proper approach to the question of joinder pursuant to the power as it then was provided in s 39A of the LEC Act. The provisions of s 39A were in identical terms to that now contained in s 8.15(2) and therefore remain apt. His Honour observed at para 43:

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 39 A. 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 39 A. It is to those paragraphs, therefore, that I turn.

29. His Honour then further observed at [53]-[54]:

53   A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission.

54The 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.

30. Adopting the principles outlined in Morrison, the Intervenors’ application for joinder should be dismissed.

31. In this case, the Intervenors have raised through the process of community consultation the issues that they now seek to raise in these proceedings if they are joined. Those issues were the subject of consideration and were largely adopted by the Council in its refusal of the DA. The issues were again ventilated in the presence of the presiding Commissioner at the s 34 conference and the Commissioner was given the benefit of a site inspection, including attending at each level of the affected dwelling house, to consider and assess the impacts of the DA on the Intervenors’ Land and on other land in the locality.

32. On the assumption that the Council and the Applicant will move the Court pursuant to s 34(3) to give effect to an agreement reached between them, the Commissioner will not be required to make a merit assessment of the DA, but will be required to be satisfied that the agreement is one that could have been made by the Court in the proper exercise of its functions. This assessment will include a consideration of the adequacy of the cl 4.6 variations.

33. The Commissioner has before him a large volume of material that assesses the impact on views from various locations, including those prepared on the Intervenors’ behalf. He also has the benefit of the site inspection and oral submissions at the s 34 conference. The nature of the assessment he is now required to undertake is one where there is sufficient material before him – by way of submissions, the Council assessment and his own inspection - that will permit that consideration to be sufficiently undertaken. Having regard to the particular issues sought to be raised in this case and the power to be exercised by the Court pursuant to s 34(3) of the LEC Act, the issues sought to be raised by the Intervenors can be sufficiently addressed without the need for the Intervenors to be a party to the proceedings or to make submissions.

34. In particular, the Council officer’s assessment report demonstrates a detailed consideration of the relevant matters, including the issues now sought to be raised by the Intervenors. That assessment demonstrates a detailed assessment of all materials submitted both from the Applicant and submissions by third parties, together with an independent assessment of the relevant issues, even when not directly raised by material provided to the Council. It demonstrates that there has been a clear and sufficient identification of potential issues and an analysis of whether development consent is appropriate in the circumstances.

35. Whilst that report related to an earlier version of the DA, it is only reasonable, in the absence of evidence to the contrary, to infer that the Council has undertaken a similarly detailed and independent analysis of the DA in its amended form. This is not a case where an issue has not been sufficiently addressed in the available material such that the Commissioner will be unable to sufficiently address for himself the matters he is required to address absent assistance from the Intervenors.

36. The fact that the Council’s position has changed from supporting a refusal to the entering into an agreement for development consent is not, of itself, a demonstration that any necessary issue is unable to be sufficiently addressed. It is necessary to identify the tasks that the Commissioner is undertaking in the appeal and ask whether the Commissioner could sufficiently address that task in the absence of the Intervenors. In this case, the Intervenors’ submissions clearly set out their position in relation to the issues they raise. The Commissioner, armed with that information, is able to sufficiently address whether the agreement is one that can be made, taking into account the Intervenors’ submissions as part of the matrix of information available to him.

30. On that basis, the Intervenors have not demonstrated that they are 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 was not joined as a party. The Court is able to sufficiently address any of the necessary issues in the determination of this appeal, and in particular the limited issues that the Court engages in where a s 34(3) agreement is submitted to the Court.

31. Further, for the very same reasons, I consider that neither the interests of justice nor the public interest warrant the Intervenors being joined merely on the basis that they are affected by the DA or are able to raise issues that relate to the public more generally.

32. For those reasons, I am not satisfied that the Intervenors satisfactorily demonstrate a basis for joinder pursuant to the provisions of s 8.15(2), or UCPR 6.27.

Orders

40. The Notice of Motion filed on 30 July 2020 is dismissed;

41. The exhibits are returned; and

42. Costs reserved. Any application for costs to be made within seven days from the date of judgment.

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Decision last updated: 26 August 2020