Background
Ken McCourt’s Class 1 appeal concerned a proposed four-storey residential flat building with three apartments, basement parking and landscaping at 34 Redan Street, Mosman. Stephen and Gabrielle Ingate, who own a neighbouring property, sought to be joined as parties to the appeal.
The Ingates contended that the proposal’s visual impact and loss of Sydney Harbour views would not be sufficiently addressed unless they could obtain their own visual-impact evidence, peer-review the applicant’s assessment and cross-examine experts. They relied principally on s 8.15(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW), and alternatively on r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW).
The Court’s Holding
Registrar Froh dismissed the joinder motion. The Court held that view loss and visual impact were already squarely in issue: the Council’s Statement of Facts and Contentions specifically addressed view loss, visual impact, amenity, bulk, setbacks and the need for a comprehensive visual impact assessment.
The Ingates had also made submissions, could address the conciliating commissioner at the on-site s 34 conciliation conference, and their property had been inspected. The statutory test was therefore not met because their proposed issue could be sufficiently addressed without joining them. Nor were they persons who ought to be joined, or whose joinder was necessary to determine the matters in dispute, under r 6.24.
The Court ordered the Ingates to pay Mr McCourt’s costs of the motion. It found that the joinder application had no reasonable prospects of success and that a costs order was fair and reasonable, including because the applicant had provided without-prejudice material and offered alternatives to joinder that the Ingates did not take up.
Key Takeaways
- Objectors seeking joinder must identify an issue that is unlikely to be sufficiently addressed without their participation.
- Joinder is not warranted where the relevant planning and amenity issues are already pleaded and capable of being addressed by the existing parties.
- An unsuccessful joinder motion with no reasonable prospects may attract costs in Class 1 proceedings.
Why It Matters
The decision confirms that adjoining owners do not obtain party status merely because a development may affect their views or amenity. The focus is whether their proposed issue is absent from, or inadequately addressed in, the existing appeal.
For developers and councils, detailed contentions on visual and amenity impacts can be important in demonstrating that objector concerns are already before the Court. For objectors, participation through submissions and the conciliation process may be sufficient where joinder is unavailable.