Yarranabbe Property Pty Ltd v Woollahra Municipal Council (No 2)

[2020] NSWLEC 151

Land and Environment Court

New South Wales

Medium Neutral Citation:

Yarranabbe Property Pty Ltd v Woollahra Municipal Council (No 2) [2020] NSWLEC 151

Hearing dates:

26 October 2020

Date of orders:

27 October 2020

Decision date:

27 October 2020

Jurisdiction:

Class 1

Before:

Duggan J

Decision:

See paragraph 28

Catchwords:

CIVIL PROCEDURE – parties – joinder – second joinder application by same intervenors – s 8.15(2) Environmental Planning and Assessment Act 1979 – no material change in circumstances or evidence – bringing of a second joinder application is an abuse of process – s 8.15(2) not satisfied as issues have been sufficiently raised – application dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Cases Cited:

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

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

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 I Hemmings SC (Applicant) (Respondent on the Motion)
Mr R Lancaster 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 the second application brought by the owners and occupiers of premises known as 83 and 83A Yarranabbe Road, Darling Point (the Intervenors) to be joined as parties to these proceedings. This application is in similar terms to that which I determined and dismissed in Yarranabbe Property Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 122 (Yarranabbe (No 1)).

2. The facts and the relationship of the Intervenors’ Land and the Subject Site are set out in Yarranabbe (No 1) at [2]-[15] and are relied upon in the determination of this matter but are not repeated here. I also adopt the same defined terms in this judgment.

3. Since the delivery of judgment in Yarranabbe (No 1) three events have occurred which are material for the determination of this matter, they are:

1. The Applicant has filed further amended cl 4.6 variations for height and a floor space ratio together with amended architectural plans known as issue EE;

2. The Intervenors have commissioned a survey plan relating to the accuracy of the blue line delineating the view cone that the Applicant contends retains the iconic views of the Harbour Bridge and Opera House; and

3. The Intervenors have provided some further photographs of the public views available from the public road adjacent to the Subject Site.

4. Evidence was tendered by way of affidavit and documentary material relating to these three changes and identifying the foundation for the joinder application.

Statutory provisions

5. The Intervenors seek to be joined as a party to the proceedings pursuant to 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.

6. As was observed in Yarranabbe (No 1), 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

7. The Intervenors in their written submissions accept that the subject matter of this application is similar to that in Yarranabbe (No 1) and that, consistent with the rule of practice precluding similar applications that may comprise an abuse of process, they would need to establish that there has been a material change in circumstances or the discovery of new evidence that was not reasonably available at the initial hearing. The Intervenors submit that the three identified changes referred to above are sufficient to discharge this requirement.

8. This position was tempered by senior counsel in his oral submissions to suggest that whilst the requirements relating to abuse of process were met in this case, the rule is only a rule of practice and not a rule of law such that the Court could in any case allow the matter to proceed even if it was in sufficiently identical terms to be otherwise considered an abuse of process.

9. The Intervenors’ primary submission was that as the parties to the proceedings were now in agreement that development consent should be granted and that, absent participation by the Intervenors, the issues raised by them, particularly in relation to private and public view loss, could not be sufficiently addressed. In this regard, it was submitted that the question as posed by s 8.15(2)(a) was not directed to whether the decision maker “needed” such assistance to determine the matter but rather that the issue could not be sufficiently addressed if not accompanied by debate, evidence and submission to contradict the common position of the parties absent that function being served by the Intervenors.

10. I understand the Intervenors to submit that the focus of s 8.15(2) is said to be on the process of addressing the issue to which the statutory term of “sufficiently” is directed rather than whether the Commissioner was able, absent the adoption of such process, to decide the matter on their own. That is, the emphasis is whether, in circumstances where two parties are in agreement, the decision maker would still get the benefit of the type of argument and testing of the issue as they would get in an adversarial contest on that issue. In this respect, the Intervenors highlighted the reasons for my decision in Yarranabbe (No 1) at [33] and [36] and indicated that the test that I had formulated in those paragraphs elevated the test in s 8.15(2)(a) to a requirement that the Intervenors must establish that there is a need for the Commissioner determining the issue based on the material before them to have additional participation of the Intervenors.

The Applicant’s submissions

11. The Applicant submitted that the Intervenors were either estopped by Yarranabbe (No 1) or, in the alternative, the Intervenors had not demonstrated a sufficient change in material circumstances or evidence and as such the application for joinder should be dismissed as an abuse of process.

12. The Applicant submitted that the three changes identified by the Intervenors were insufficient to qualify as material changes to the evidence or circumstances as the survey and photographs were clearly matters that were available for the Intervenors to obtain prior to the last hearing and that the changes to the cl 4.6 variations and the plans were minor clarifications or additions responsive to the latest of the Intervenors’ submissions to the Council and not sufficiently material.

13. The Applicant submitted that if a consideration of s 8.15(2)(a) did arise it would be dismissed for the same reasons as the application for joinder in Yarranabbe (No 1).

The Council’s submissions

14. The Council took the neutral position that it neither consented nor opposed the making of the orders sought in the Notice of Motion.

Is the present application estopped or an abuse of process?

15. The underlying principles relating to why a party should not be able to bring multiple sufficiently identical applications without a material change in circumstances or evidence reasonably available at the first hearing are well known. Whilst those principles comprise a rule of practice, not of law, the achievement of these principles in the proper administration of justice are so fundamental that there would have to be some real and compelling reason to depart from this rule of practice. It is accepted that the Court retains a discretion to permit an identical application to be made as a matter of law, however, in the exercise of the discretion there would need to be some identified reason for departing from the rule such that it would act to outweigh the goal of achieving the principles underlying that rule of practice. In this case, the Intervenors have not identified any such factor and accordingly, it is appropriate to determine whether this application for joinder constitutes an abuse of process.

16. The three factors identified by the Intervenors are insufficient to establish that there has been a material change in circumstances or evidence that could reasonably been available to the Intervenors at the time of the hearing in Yarranabbe (No 1) for the reasons that:

1. The photographs and survey were able to be obtained at the first hearing and there is no explanation as to why that evidence was not obtained at that time. Further, the issues that underlie this new material, being public and private views and the accuracy of the assumptions underlying the Applicant’s view cone, have been the subject of submission by the Intervenors and were the subject of the site view by the Commissioner such that the form of the evidence may be new but the subject matter it goes to is not. As was conceded by the Intervenors the survey does no more that provide a different expertise to elucidate the same point that has been made on behalf the Intervenors through other experts;

2. The amendments to the plans are minor insofar as the change relied upon by the Intervenors involves the placement of a notation and an arrow pointing to an existing feature of the plans being a fixed privacy screen. The privacy screen was part of the plans under consideration in Yarranabbe (No 1), the note was not. The Intervenors contend that the placement of the note is significant in that it draws attention to the feature otherwise not notated. I reject this characterisation. The plans were clear prior to the notation that the element was a fixed privacy screen. The note adds nothing of substance by this change.

3. The amendments to the cl 4.6 variations were identified through the cl 4.6 variation for height. It is true that the Intervenors have been able to identify that changes have been made to the written variation but change of itself is insufficient. The change must be material. When the changes are considered in context they are not material in a sufficient sense to permit this further application to be made. There is no change to the nature and extent of the variation. As a fact, the variations are significant numerically and the part of the proposed building to which the variation relates has objectively observable impacts, including views from the Intervenors’ existing and proposed premises. These are part of the matters that are required to be considered by the Commissioner notwithstanding the agreement of the parties. The changes identified by the Intervenors are no more than further detail or engagement with the reasons put by the Intervenors in their submissions detailing why the cl 4.6 variations should not be accepted. The substance of the material is largely the same, the reasons relied upon are the same, and the Applicant has continued to address the specific matters raised by the Intervenors in their submissions. The Intervenors’ criticism of these changes go to whether the cl 4.6 variation could satisfy the Commissioner that the variation should be granted. This issue remains the same and for fundamentally the same reasons as were outlined by the Intervenors in Yarranabbe (No 1).

17. In this case, the bringing of a second application for joinder is an abuse of process and should be dismissed as the Intervenors have failed to identify sufficient change in circumstances or evidence.

18. Having found that the present application is an abuse of process it is not necessary for me to consider whether the Intervenors are also estopped from bringing the present application.

Determination of application for joinder

19. If the application was not an abuse of process and the application was required to be determined, the Notice of Motion would have been dismissed on the basis that the Intervenors have failed to demonstrate satisfaction with s 8.15(2) of the EP&A Act.

20. The legislative provision in s 8.15, applying its ordinary meaning, is not focussed on the way (or manner) in which the issue is raised or addressed, being a consideration of whether that issue is addressed by oral contest by way of evidence or submissions. The words of the section require a determination of whether the identified issue has been raised sufficiently and addressed (that is elucidated with sufficient clarity and particularity) such that the Commissioner can determine the matter in the manner that is required by the EP&A Act and the Land and Environment Court Act 1979.

21. In this case, for the reasons that were outlined in Yarranabbe (No 1) at [31]-[36] (which are adopted but not repeated here) the substance of the issues that the Intervenors wish to be raised have been illuminated both in written and oral evidence, formed the focus of the visual evidence taken at the view where the Commissioner was assisted by further submissions by the Intervenors (and those that appear on their behalf) and the making of further submissions at each variation to the application. All of this information will be before the Commissioner at the determination of this matter. The dispute as to the effect of the proposed building on issues such as view loss has been equally particularised and clarified in that evidence such that the necessary considerations have been formulated and the argument put. In this case, it is very clear that the issues have been sufficiently raised and addressed in the evidence available to the Commissioner

22. 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.

23. 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).

Intervenors’ participation in the future s 34 hearing process

24. During the course of this application senior counsel for the Applicant indicated that the Applicant took the view that even in a s 34 agreement hearing a Commissioner was entitled to consider the submissions from objectors in order to determine the matter before them. Such submission could include an oral submission where, as in this case, there have been alterations to the material before the Commissioner since that evidence was first taken.

25. The Applicant indicated that at the further hearing before the Commissioner for the determination of the matter in respect to the s 34 Agreement, it would not object to the Intervenors, or a person on their behalf (including a person with expertise) being called by the Council to give evidence relating to the changes in the cl 4.6 variations, insofar as these changes relate to view loss. It was further accepted that the Intervenors’ new survey and photographs should also be provided to the Commissioner.

26. The Council indicated that in light of the Applicant’s position it would call the Intervenors should the Intervenors wish to give such evidence.

27. Whilst this factor was not taken into account in the determination of the s 8.15(2) application for joinder, I record it here lest there be any issue before the Commissioner as to the exchanges between the parties on this issue.

Orders

28. For the reasons I have outlined, the Court Orders that:

1. The Notice of Motion filed on 15 September 2020 is dismissed;

2. The exhibits are returned; and

3. The costs of the hearing of the Notice of Motion are reserved. Any application for costs to be made within 14 days from the date of judgment.

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Decision last updated: 03 November 2020