GM Architects Pty Ltd v Strathfield Council [2016] NSWLEC 1260

Land and Environment Court New South Wales

Medium Neutral Citation: GM Architects Pty Ltd v Strathfield Council [2016] NSWLEC 1260 Hearing dates: 14 June 2016 Date of orders: 24 June 2016 Decision date: 24 June 2016 Jurisdiction: Class 1 Before: Maston AC Decision: See [23] Catchwords: JOINDER – Application by neighbour to be Joined to merit proceedings – Applicants for joinder and its experts have presented objector evidence in the principal proceedings – no basis for joinder – application dismissed Legislation Cited: Land and Environment Court Act 1979 Cases Cited: Currey v Sutherland Shire Council [2003] NSWCA 300 at [33]-[35]

Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313 at 314-315

John Alexander's Clubs v White City Tennis Club (2010) 241 CLR 1

News Limited v Australian Rugby Football League (1996) 64 FCR 410

Parramatta City Council v Shell Co. of Australia [1972] 2 NSWLR 632 (CA) at 637

Pegang Mining Co. v Choong Sam [1969] 2 MLJ 52

Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321

Victoria v Sutton (1998) 241 CLR 291 Category: Procedural and other rulings Parties: M. and B. Moses Investments Pty Ltd (Applicant for Joinder) GM Architects Pty Ltd (Applicant) Strathfield Council (Respondent) Representation: Mr. P. Larkin SC (Applicant for Joinder) Mr. A. Pickles SC (Applicant) Ms. K. Gerathy, Solicitor (Respondent) Solicitors: Hones Lawyers (Applicant for Joinder) Conomos Legal (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 161836/2016 Publication restriction: No

JUDGMENT 1. A notice of motion was filed in these proceedings on Friday afternoon 10/6/2016 on behalf of M. and B. Moses Investments Pty Ltd (the company). The time for filing and serving the application was abridged and the matter came before me at 2.30 pm on Tuesday 14/6/2016, being the first day on which the Court was open following the filing of the application. 2. Mr P. Larkin SC appeared for the Company and provided written submissions. Mr A. Pickles SC appeared for the Applicant. He opposed the application and submitted that it should be dismissed. Ms K. Gerathy appeared for the Council which neither opposed nor consented to the application and apart from assisting the Court, made no submissions.

Orders Sought 1. The orders sought were that the company be joined as a second respondent in these proceedings, or alternatively that leave be given to the company as Intervenor to lead evidence, cross-examine and make submissions, or alternatively that consultant planner Mr. B. Daintry be given leave to give evidence on behalf of the company within the scope of the matters raised in an affidavit of Mr Daintry sworn 10/6/2016, and that all orders and directions made by me in the proceedings be vacated.

Introduction 1. The judgment delivered by me on 3/6/2016 contained my findings on several questions in the substantive proceedings following the conclusion of the hearing on 11 March 2016. The directions made required the parties to settle short minutes of order and draft conditions of consent reflecting my findings, for argument if necessary, on 14/6/2016, to enable me to dispose of the proceedings either in accordance with the short minutes or such other orders as may be appropriate. 2. The substantive proceedings are an appeal pursuant to section 97 (1) of the Environmental Planning and Assessment Act, 1979 (EP&A Act) against the refusal of Strathfield Council (the Council) to grant development consent to the current development application number 2015/065 (current DA) for a mixed use development on the land referred to as 153 Parramatta Road, Homebush (No. 153). 3. The Land and Environment Court Act, 1979 (Court Act), by section 39A makes provision for third party joinder in specific appeals including appeals under s.97(1) of the EP&A Act, in class 1 of the court's jurisdiction: Section 39A relevantly provides:

39A. Joinder of parties in certain appeals On an appeal under section… 97 of the EP&A Act, 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: 1. 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 2. that: 1. it is in the interests of justice, or 2. it is in the public interest, 3. that the person be joined as a party to the appeal.

Evidence: 1. The affidavit evidence in support of the motion consisted of the affidavit of Mr Daintry sworn on 10/6/2016, and an affidavit of Barry John Rush, architect, sworn 14/6/2016. These are said to indicate the scope of the intervenor's claims. In compliance with the directions I made on 3/6/2016 the Council tendered its draft conditions of consent and the applicant tendered its own version in the form of a marked up copy of the Council's conditions. A copy of these had previously been given to the company. 2. It is relevant that no evidence was filed explaining why the applicant did not make the application at an earlier time, especially since the company was represented at the hearing before me by Mr L. Moses, the son of M. and B. Moses, the owners or controllers of the intervening company, and by its consultants Mr Daintry and Mr C McLaren, a traffic engineer, all of whom gave evidence in the hearing on 9/3/2016 on the questions and in the circumstances referred to in paragraph [23] of my judgment.

Grounds 1. The substance of the reasons why the application for joinder has now been made is described as being that these proceedings have the potential to adversely affect the legal interests of the intervenor. It will be necessary to explore the precise nature of the legal interest claimed to exist in order to determine this claim. 2. Mr. Daintry's affidavit attaches copies of two development consents granted by the Council in 2013 for the joint development of No. 16 Hillcrest Street, Homebush (No.16) and No. 153. He sets out a list of matters with respect to the current DA that he asserts "require resolution to facilitate provision of future parking needs of [No. 16]" from the land of No.153, including the location of parking spaces and access as well as the need for "a legally binding agreement, the registration on title of an easement or other restriction for the benefit of No. 16, and alterations of the proposed development on No.153" for such things as opening of wall panels and sliding fire doors. He states that all of these matters would need to be reflected in conditions of development consent in the current proceedings, although he notes that the current DA does not seek consent for shared parking on No.153. 3. In paragraph [20] of his affidavit Mr. Daintry asserts that the proceedings before the Court have "the potential to adversely affect the Intervenor's rights arising under the development consent which is applicable, inter alia to, 16 Hillcrest Street….". [I take this to be a reference to the consent to development application numbered DA 2013/075 for the development of the combined sites of No.16 and No.153]. He concluded: "I believe and I am informed and verily believe, that the outcome of these proceedings has the potential to render nugatory any benefit to the Intervenor of its commenced consent, and thereby affect the legal interests of the Intervenor….For all of the above reasons, the Intervenor claims the orders in the Notice of Motion".

Consideration: 1. It is not suggested that the company is an "owner" for the purposes of the EP&A Act or otherwise, or that it is entitled to any interest in No.153 by way of easement or otherwise. It claims only to be the owner of the land at No. 16, which adjoins No.153. It is to be noted that oral evidence of Mr L. Moses in the substantive proceedings indicated that prior to 2013 the company owned both No.16 and No.153, but decided to sell the latter. The Applicant in the present proceedings, GM Architects Pty Ltd, is the agent for the current owner of No.153. The same firm was previously the applicant for the development application No. DA2013/075 as agent for the owners of both sites. 2. Mr Larkin SC submitted that the 2013 consent runs with the respective lands and creates rights and liabilities in the company as well as in the owner of No.153 and that the operation of the 2013 consent "is directly affected by the orders sought in the [current] proceedings". 3. However, the only ways in which the continuing effect of the 2013 consent could be directly affected would be if there was an application made to modify it or surrender it under the relevant provisions of the EP&A Act, and neither of these could take place without the express consent of the company. If DA 2015/065 is granted conditional consent, the subsistence of the 2013 consent will be unaffected and rights and liabilities of the company under it would not be altered. I therefore do not accept that the continuing effect of the 2013 consent will be directly affected. 4. It was submitted that the provision of parking spaces on No.153 is important for the 2013 consent and that the company can assist the Court with evidence regarding such parking. However, the present appeal involves a proposal for a different permissible development alternative to that under the 2013 consent. Not involving designated development there is no entitlement for the company to be an adversary to the applicant for development consent in a contest as to whether or not consent should be granted: Morrison Design Partnership Pty Limited v North Sydney Municipal Council [2007] NSWLEC 802; (2007) LGERA 361 at [51]. The Council has been and continues to be an active contradictor in these proceedings. 5. The mere existence of the 2013 development consent for No 16 and No 153 does not affect the right of the owners of it from time to time to make further and different development applications. Such owners are entitled to apply to the Council for whatever they like: Currey v Sutherland Shire Council [2003] NSWCA 300 at [33]-[35] per Spigelman CJ. Also, whilst it is true that the 2013 development consent 'runs with the land' in that it enures for the benefit of subsequent owners: Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321; Parramatta City Council v Shell Co. of Australia [1972] 2 NSWLR 632 (CA) at 637, the grant of consent to the 2015 DA would not alter the terms or legal effect of the 2013 consent. 6. I was taken to several private law, commercial and equity cases referred to in the Company's written submissions decided under various rules similar to Uniform Civil Procedures Rule 6.24 relating to joinder of third parties generally. These included Victoria v Sutton (1998) 241 CLR 291 at [31] to [35]; John Alexander's Clubs v White City Tennis Club (2010) 241 CLR 1; News Limited v Australian Rugby Football League (1996) 64 FCR 410; and Pegang Mining Co. v Choong Sam [1969] 2 MLJ 52, in all of which the test of direct effect on property interests was held to be satisfied. The only possible outcomes of these proceedings are the grant of a new conditional consent or refusal with respect to No 153 which is exclusively owned by the present owner of it. 7. The hearing, including cross examination of all lay and expert witnesses was substantially completed more than 3 months ago and it only remains for me to hear submissions as to conditions. The draft conditions of the parties that have been tendered relevantly differ in that the Council proposes a condition in the following terms: 30(d). The unallocated spaces provided on basement level 1 are not to be sold or strata subdivided with residential apartments or commercial lots and are to remain in the ownership and control of the owners corporation for a period of 10 years to facilitate the provision of parking to 16 Hillcrest Street, Homebush in the event that parking is required for that development and the owner of that lot obtains or acquires rights to utilize the parking spaces by agreement with the owners corporation of this site. The applicant does not include this condition in it's draft conditions and I note that the development application itself does not seek consent for parking facilities or access for the use of occupants of No.16. It is clear that the applicant will oppose the imposition of the Council's proposed condition. Imposition of conditions will be determined having regard to the EP&A Act and in particular ss. 80 and 80A and the opposing contentions of the parties. I do not consider that the Court would be unable obtain meaningful assistance from the existing parties as to the issues that have been raised or are likely to be raised. These issues are evident in the material before the Court. 1. Finally, Mr Daintry refers to paragraph [82] of the principal judgment. The passage referred to relates to a discussion in the planning evidence of the issue of whether "isolation" of No.16 might occur, about which there was considerable evidence. The paragraph refers to a hypothetical possibility of a commercial negotiation with adjoining properties including No 153.

Conclusions 1. There is no reason to believe that appropriate conditions will not be sufficiently addressed when the Court deals with Orders and conditions. 2. As to ss 39A (a): I do not consider that the company 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 it were not joined as a party. The present parties to the appeal have and are likely to continue to sufficiently address the issues raised by the objector both in the proceedings and in the Notice of Motion. 3. As to ss 39A (b): I am of the opinion that it is not in the interests of justice to join the company. It has been accorded natural justice from the outset of the proceedings, by participating in them as an objector. Further, in my opinion it is not in the public interest that the company be joined. The lateness of the application for joinder, given the extent of participation already permitted also tells against joinder on these grounds.

Order 1. The orders of the Court are: 1. The Application for joinder is dismissed; 2. The substantive proceedings will be listed at 9:30am on Monday, 27 June 2016 for further hearing for the purpose of settling final orders and conditions. J Maston Acting Commissioner

Amendments 08 August 2016 - Amendment made to citation of a case in paragraph 15 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2016