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Lannan v Inner West Council [2020] NSWLEC 20 (2 March 2020)

Last Updated: 16 June 2020

EXTEMPORE JUDGMENT

1. HIS HONOUR: In these proceedings, Inner West Council (the Council) has filed a Statement of Facts and Contentions on 29 January 2020. There is a single contention, that contention is in the following terms.

The proposal does not have a positive contribution to the heritage values of the Birchgrove and Ballast Point Road Heritage Conservation Area and the Birchgrove Distinctive Neighbourhood, the development is inconsistent with the pattern of the surrounding development is contrary to the applicable heritage provisions.

2. There is then a range of detailed particulars provided but they are all provided in a heritage context.
3. In these proceedings, the owners of a neighbouring property seek to be joined as parties to the proceedings, pursuant to s 8.15(2)(a) of the Environmental Planning and Assessment Act 1979, saying that there are issues that require to be considered in the context of the proposed development that are not adequately going to be raised by the Council as part of that process.
4. Those matters fall into three separate areas:
   • (1) Amenity impacts on the neighbouring property

Those amenity impacts were dealt with at some length by a submission dated 8 August 2019 made on behalf of the neighbours and forming part of Exhibit 3, the Respondent's Notice of Submission Writers, which is not only a list of the submission writers but all of the relevant submissions.

(2) Heritage issues have not adequately been addressed

That was the subject of a submission made on behalf of one of the Applicants for Joinder and expands on heritage matters that are otherwise dealt with and particularised in the Council's contention. That submission also forms part of Exhibit 3.

(3) Whether the development consent has lapsed

The third matter is the question of whether or not an earlier development consent that has been granted by the Council for this site has or has not lapsed and the extent to which it might or might not be appropriate for the Applicant for this development consent to seek comfort from, and some support for, this proposed development on the basis of that earlier development consent. That matter is not raised by the Council in any fashion.

5. Although the heritage matters, I am satisfied, are likely to be adequately addressed by the Council in a fashion consistent with what was discussed by the Chief Judge in Morrison Design Partners Pty Ltd v North Sydney Council & Anor [2007] NSWLEC 802; (2007) 159 LGERA 361: as dealt with by his Honour at [44] onwards of his Honour's decision. I am satisfied that the questions of amenity, particularly, are matters about which the Council's contentions are effectively entirely silent and are of potential import to the approvability or otherwise of the proposed development.
6. I am satisfied that, on that basis, it is appropriate to join the Applicants for Joinder as parties to the proceedings. Given that that is a sufficient basis for the joinder, there is no restriction on their participation in the proceedings - they, having been joined for a limited reason, are nonetheless parties to the proceedings for all purposes.
7. As a consequence, the order of the Court in these proceedings is that:
   • (1) The Applicants for Joinder, Andrew Toland and Tiffany Hambley, are joined as parties to the proceedings pursuant to s 8.15(2)(a) of the Environmental Planning and Assessment Act 1979.

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Amendments

16 June 2020 - Ms E Tringali, barrister, is noted as counsel for the Applicants, in lieu of Ms McFarlane.