Australia, July 3 -- New South Wales Land and Environment Court issued text of the following judgement on June 3:

1. Before the Court are two notices of motion relating to a Class 1 Development Appeal (Class 1 Appeal). The Class 1 Appeal was brought by the Substantive Applicant (Wheeldon) against the Substantive Respondent, Woollahra Municipal Council (Council), following the Council's refusal on 19 September 2024 of Wheeldon's development application (DA) to demolish an existing house and garage and construct a new dwelling, swimming pool and landscaping on the property known as 11A Burrabirra Avenue, Vaucluse (the Property).

2. A conciliation conference for the Class 1 Appeal was conducted before Commissioner O'Neill on 6 March 2025. On that day, Wheeldon and the Council reached an agreement as to the terms of the decision in the Class 1 Appeal, whereby they agreed that the appeal should be upheld, and an amended development application (amended DA), lodged by Wheeldon, be determined by a grant of consent subject to conditions.

3. On 31 March 2025, Commissioner O'Neill's decision was handed down, with the Commissioner considering that the agreement reached was one that the Court could have made in the proper exercise of its functions: Wheeldon v Woollahra Municipal Council [2025] NSWLEC 1176 at [11].

4. After the date that agreement was reached between Wheeldon and the Council, but before the date of the Commissioner's decision, on 12 March 2025 a number of owners of land surrounding the Property sought to be joined to the Class 1 Appeal (Joinder Applicants). By motion filed on 12 March 2025, they sought joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). A "stay of proceedings" was also sought pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (CPA). An amended notice of motion was filed on 17 March 2025 (Amended Joinder Motion) which relevantly sought:

a) an order for joinder under r 6.24(1) of the Uniform Civil Procedure Rules 2005 (UCPR), and alternatively under s 8.15(2) EP&A Act;

b) to have the proceedings relisted before Commissioner O'Neill; and

c) a stay of the proceedings "until the hearing of the relisted proceedings" before Commissioner O'Neill.

5. On 7 April 2025, after the Court's decision and orders in the Class 1 Appeal were handed down on 31 March 2025 (which for reasons explained below occurred prior to the hearing of the Amended Joinder Motion), the Joinder Applicants filed a second motion (the Stay/Set Aside Motion), in which they sought orders that:

a) the Class 1 Appeal be stayed nunc pro tunc from 20 March 2025 until the Amended Joinder Motion is heard; and

b) the judgment and orders of the Court on 31 March 2025 be set aside.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1972f8b7a1b86ea8c51b5abe)

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