Aesthete No. 9 Pty Limited v Blue Mountains City Council

The Notice of Motion and summary reason for decision

On 27 October I heard the Notice of Motion.
I had the benefit of the Applicant's affidavit affirmed on 27 September 2022, the Applicant's submissions of 17 October 2022, including the caselaw cited therein, the Respondent's submissions on Notice of Motion dated 26 October 2022 and the Applicant's Submissions in Reply, Mr Compton's report, the transcript of the first two days of the hearing, and the affidavit of David Crompton sworn on 17 October 2022. In addition, I heard oral submissions from the parties.
Mr David Crompton is the Applicant's Civil and Hydraulic Engineer who gave expert evidence in the proceedings. Mr Crompton gave joint evidence with the Respondent's Engineer, Ms Katherine Hawken. Ms Hawken and Mr Crompton prepared a marked-up copy of the subdivision plan to show the location of their 'agreed construction zone', A copy of this plan was attached to Mr Compton's affidavit. There was no disagreement that this plan did not represent a final survey but was more in the way of a mud map. Joint evidence was given on 24 August 2022 (Tcpt, pp 31(1)-49(26)). Ms Hawken was recalled on 25 August 2022 (Tcpt, pp 81(1)-84(9)). The engineering experts, in conjunction with Mr Phillips had authored a joint report which was Ex 5, and Mr Compton and Ms Hawken had prepared a supplementary joint report, Ex G.
Much of the discussion on 24 August 2022 was in relation to drainage issues about which there was agreement between the parties. On 25 August 2022, when Mr Crompton was not present, Ms Hawken was questioned in relation to the machinery that could be used in site preparation works. She stated (Tcpt, 25 August 2022, line 14) that she had actually discussed these issues with Mr Crompton, and said on Tcpt, 25 August 2022, p 81(22-23) that 'Mr Crompton is familiar with many excavators that can be 800 millimetre in width'.
Given that Mr Crompton was not present, he was not questioned as to whether or not he agreed with these statements of Ms Hawken. Whether or not he had made this comment in his discussion with Ms Hawken, in his affidavit of 17 October 2022, he said that he did not intend in the agreed construction zone plan to endorse any particular construction methods and machinery: "3. When preparing the Plan, I intended to depict the general areas where services and drainage works would be installed in the undertaking of the subdivision works. 4. When preparing the Plan: 4.1 I did not intend the Plan to be to scale, provide measurements or widths of the works, nor to be exacting. 4.2 I did not have regard to the construction methodology required to undertake the subdivision works. 4.3 I did not have regard to the regulatory requirements / compliance necessary and the impact of those requirements on the type of machinery that is now intended to be used to undertake the subdivision works. 5. I have limited experience in the physical undertaking of civil works and do not possess expertise in that field or area. 6. Having regard to the above and the construction methodology / regulation identified by Mr. Jason Compton. The Plan does not now align with my opinion as to the potential areas of construction or areas in which vegetation may now need to be removed in order to carry out the subdivision works using the machinery proposed."
The Respondent in its submissions on the Notice of Motion identified six contentions in the proceedings. "4. The Respondent has identified 6 contentions in the proceedings, all nominated in the Respondent's Statement of Facts and Contentions filed on 6 April 2022 (SOFC): B1 - Insufficient Information B2 - Vegetation Management Plan B3 - Earthworks B4 - Inappropriate location of flood mitigation stormwater and water quality infrastructure B5 - Inappropriate configuration of water quality infrastructure - proposed by retention/detention basins and boundary retaining walls in Lot 12-16 B6 - Not substantially the same development" but considered that contentions B1, B3, B4, and B5 had been substantially resolved (at par 5). The Applicant, in his Submissions in Reply, does not agree and considered that Contention B3 had not been resolved, but is, particularly given Mr Crompton's affidavit, very much alive. Contentions B4 and B5 have been resolved between the experts. Contention B1, as it stood in April 2022, has been substantially resolved through provision of information, but the changes that have taken place in a number of details have generated some other issues requiring further information. Contentions B2 and B3 are necessarily intertwined.
After hearing the oral submissions of the parties, I adjourned briefly to consider all the material before me. The issues are finely balanced, and resolution is not simple.
However, I concluded that it was not appropriate to grant the leave sought by the Applicant.
What follows is a brief summary of my reasons for reaching that conclusion, which hopefully are less inchoate than the verbal reasons I gave.
In his affidavit of 27 September 2022, given in support of the Applicant's motion to rely on expert evidence of Mr Jason Compton, Mr Amirbeaggi gave his reasons why leave should be granted: "9. The Applicant says that in order to fully determine all matters in dispute it is necessary to resolve both the construction zone issues and the matters relating to the VMP. The two are fundamentally intertwined. It has only emerged as a matter of contest because of the evidence given at the final hearing by the engineering experts and the draft conditions of consent proposed by the Council. 10. The proposed construction zone is an important issue in the proceedings because without evidence concerning the way in which the subdivision may practically be completed, the determination of the appropriate VMP cannot be fully determined and determination of that issue the Court might be led to the making of Orders and conditions that cannot as a practical matter be carried into execution."
I agree that there is a need to resolve matters in dispute and that the proposed construction zone may conflict with the VMP, although noting that the current form of the VMP has been prepared by Mr Whyte to respond to the views expressed by Mr Compton, albeit at an early stage in the proceedings and that some aspects of the proposal had changed subsequently. Both the VMP and Construction Management Plan (CMP) are required to be in a form which will resolve the matter.
The application before the Court is an application to modify the existing consent, it is not an application for development consent. Both parties agree that the statement of 20 April 2022 by Mr Jason Compton which was in Annexure D to Ex D, was in evidence.
The Applicant's submissions at par 9 were: "9. At no time did the Respondent oppose, contest, or in any way communicate concern to the Applicant with respect to the statement of Mr. Jason Compton. Not even at the section 34 Conference, nor during Final Hearing."
However, the statement of Mr Compton was just that - a statement. It was not in itself evidence in the form in which expert evidence is required by the Court, and at the time the statement was tendered there was no attempt to qualify Mr Compton as an expert. It was only much later that this occurred.
The Applicant argues that it is the work identified by Mr Compton and the consequent requirement for removal of further vegetation than had been previously envisaged when the joint experts in engineering provided the Court with what was said to be an Agreed Construction Zone which resulted in the serving by the Respondent of draft conditions of consent which the Applicant considered to be inconsistent with the statement of Mr Compton.
The need to define an agreed construction zone had clearly been raised - it was a matter for the parties to decide the case that they would run, but the issue having been identified it was open to either party to raise the matter beyond identification and to have called evidence at an earlier stage.
If the modification application were to be approved, it is not the role of the consent authority to determine how the recipient of the consent is to carry out the work. The granting of consent is only a necessary stage on the way, but there is no obligation on the recipient of concern to activate it. There may be many reasons why an applicant may not proceed.
It may be that parties agree to conditions which go to the level of detail of specifying particular machinery, but that would be a matter of choice rather than requirement. It may be desirable in some circumstances to specify that particular machinery or methods not be used - but that would depend on the circumstances of individual cases. If a particular approach would contravene other legislation then it could not be specified in conditions.
The Applicant in his oral argument on the Notice of Motion said that the issue for the Court was not the practicality of the construction plan but its legality, arguing that there were workplace health and safety requirements which could not be met if the Respondent's requirements for construction were imposed. Workplace health and safety are important matters, and conditions could not be imposed if they resulted in breaches of the relevant law. I appreciate that Mr Compton, as a civil contractor, has had to operate within the requirements of the health and safety laws for many years, and is aware of the law and has his understanding of what is required. Nevertheless, he is not a lawyer, and some of the regulations are worded in complex ways which are not necessarily clear and unambiguous. The relevant legislation does not fall within the jurisdiction of the LEC so if there is disagreement between relevantly qualified experts on the application of the safety legislation I could not resolve them. If Mr Crompton were permitted to appear as an expert his expertise would be limited to civil engineering and not health and safety issues. Mr Compton in his report has argued that it would not be possible, at pars 163 and 164, to implement the Respondent's requirements and it would be necessary to remove 'very thin narrow strips of vegetation' because they would be impossible impractical to maintain and specifically, in par 164, the trees in such strips would be a risk to workers arising from the trees failing due to windthrow or weakened root systems. These are issues, which despite Mr Compton's practical experience, would be matters for evidence from arborists. No specific trees were identified, but it would be possible to identify candidate problem trees in advance (the location of most trees has been mapped) so that measures to mitigate the risk of failure might be identifiable, or other protection measures could be suggested.
However, for both parties to engage experts in health and safety issues, and also arborists, would be expensive and time consuming, particularly if joint conferencing did not resolve issues and further hearings were required. This would be contrary to the just, cheap and quick intent for Class 1 appeals.
The Applicant suggested that the Respondent was being unnecessarily complicated and had delayed the resolution of the matter, and that the Court should engage only with those conditions subject to modification.
However, any modification or new conditions would need to be compatible with implementation of the unaltered conditions. I note that in both 2017 and 2018 approvals - Condition 5 Limit to Vegetation Removal and Condition 18 Vegetation Management Plan Preparation remained essentially the same (there was some minor change in Condition 18 between 2017 and 2019). What has emerged now are possible inconsistencies between Mr Compton's proposals and the existing Conditions 5 and 18 which had been regarded as necessary in the previous approvals. The Applicant is seeking to delete Condition 19 and amend Conditions 5, 18 and 20. It submits that retaining all the conditions imposed in 2019 (which are very similar to those in 2017) may make carrying out the subdivision impractical. As far as I can make out this was not an argument advanced in relation to the conditions advanced in the 2017 and 2019 judgments.
Although I have decided not to grant leave to adduce evidence from Mr Compton the parties are aware of Mr Compton's report (and his earlier April statement). The parties' existing experts may be able to engage in further discussion about ways in which the CMP and the VMP could, if necessary, be modified so as not to be in conflict. I consider that it would necessary for the parties to demonstrate that any modifications were not adverse to the underlying intent of the existing conditions.
The Applicant in his response to the Respondent's Submissions on Notice of Motion goes through the Respondent's submissions paragraph by paragraph and finds that a very large number are, in his view, not relevant to the application. It is not necessary for me to repeat the exercise; in a few cases I would agree with the Applicant, but the bulk of the Respondent's submissions help define the context and build up a fuller picture of the application.
The Applicant in his submissions of 17 October 2022 referred to cases which it claimed supported his argument for qualifying Mr Compton as an expert and to receive his evidence. The cases differ from the circumstances in the present matter, in that the applicant in the cases was seeking to reopen to hear new evidence, whereas through his Notice of Motion the Applicant is seeking to introduce a new witness after the expert witnesses had been heard from, but before submissions, particularly in relation to s 4.55 of the Environmental Planning and Assessment Act 1979, had been completed.
The cases cover a range of matters involving a wide range of subject matter. None, however involved proceedings in the Land and Environment Court, or had circumstances which are directly similar to those of the current matter. Neither of the parties referred me to a matter in the Land and Environment Court which might assist in determining the Notice of Motion.
Many matters in Class 1 have involved discussions between engineers and ecologists about the impacts of proposed development on aspects of biodiversity and the extent to which these impacts can be reduced through design. In my experience these discussions have not involved the practicality/feasibility of construction, and the experts involved have not included, at least as a specific category of expert, contractors. It is not unlikely that some of the discussions may have been influenced by views of feasibility, but this aspect has not been the key focus. There may be cases on which experts in civil engineering contracting had given evidence on feasibility, but neither party cited any.
The conditions imposed on a development consent or on a successful modification application must not be a refusal in disguise; by which I mean that the conditions are such that they could not be met under any circumstances.
In this case Mr Compton had expressed views prior to the hearing doubting the practicality of being able to construct what was proposed of the proposal given the conditions suggested. However, although both parties were aware of this neither had initially sought to hear Mr Compton or any other expert on construction. Ms Hawken did have construction issues and their impacts in mind during her joint conferencing with Mr Crompton- although clearly there was some form of breakdown in communication between them, in that Mr Crompton's affidavit of 17 October 2022 indicates that he was not aware that the joint report which had guided the Respondent's draft without prejudice conditions had been interpreted so as to lead to conditions which were contrary to Mr Compton's recommendations.
The Applicant (submissions on Notice of Motion par 16) considered the Court should admit 'further evidence without controversy' and that the Respondent should 'assist the Court in determining the real issues', referring to R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13.
The second High Court case referred to was Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36. This involved disciplinary proceedings, where the appellant had been found to have lied in evidence to the court, but the High Court determined he had been denied procedural fairness and that the matter was remitted for rehearing.
While reopening was required in that case, my reading of all the cases provided by the Applicant is that while reopening might be required in some circumstances in others whether to grant reopening is discretionary and there may be circumstances where it is inappropriate.
The view I have reached is that in this matter it is inappropriate, given that the order sought is to qualify only Mr Compton. I consider that it is likely that if Mr Compton gave evidence, it would not resolve the issue, and that is likely that there would need to be other experts, with expertise in different fields, required - increasing the expense to both parties and prolonging the time required to resolve the matter.
That there is discretion in determining whether or not to grant leave to reopen, depending on the circumstances of the case concerned is apparent in the cases cited by the Applicant. In Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, the Court of Appeal found that the guiding principle in determining whether to grant leave to reopen is whether the interests of justice are better served by allowing the evidence.
I have concluded that in my view, given the evidence and information that is already available, for the parties (or the Court) to reach a decision on the issue; reopening and a probable requirement for further expert testimony, would not be in the interests of justice, given the extra experts and time likely to be involved.
The importance of considering the interests of justice and whether or not they would be better served by granting leave are clear from the discussion of the criteria advanced by Habersberger J in Reid v Brett [2005] VSC 18 at [41] (but this was again arguing a case for reopening and the admission of an additional area of evidence).
That Nweiser is the authority that to grant leave to reopen is an exercise in discretion was also recognised in Bailey v Palombo [2020] NSWSC 1209 and In the matter of SBL Solutions Pty Ltd (subject to a deed of company arrangement) [2021] NSWSC 1003 - both cases cited at length in the Applicant's submissions of 17 October 2022.
The Respondent in its submissions on the notice of motion of 26 October 202 points out that the applicable Local Environmental Plan is Blue Mountains Local Environmental Plan 1991, although regard is also to be had to Blue Mountains Local Environmental Plan 2015. I do not understand the parties to differ in this point.
The Respondent drew particular attention to cl 6.3 which provides the objectives of Zone Residential Bushland Conservation (RES-BC) which was the relevant zoning of the land under the 1991 LEP. 6.3 Zone: Residential Bushland Conservation (RES-BC) (a) To ensure that all development including subdivision is environmentally sensitive and site responsive and maintains and facilitates sustainable natural ecosystems and biodiversity within the Blue Mountains. (b) To utilise best practice water management techniques - • to protect, and where practicable to improve, existing perennial and non-perennial watercourses and the associated riparian zone, and • to protect, and where practicable to improve, water quality, and • to maintain pre-development downstream flow patterns, and • to promote ecologically sustainable water and land management practices. (c) To establish an appropriate landscape character by encouraging the preservation, regeneration and re-establishment of native bushland, where practicable. (d) To ensure that the form and siting of development, and the building materials, colours, and landscaping utilised in that development, are each appropriate for, and harmonise with, the bushland character of the area in which the development is to take place. (e) To ensure bushfire protection measures are adequate to protect proposed development and are able to be implemented without unacceptable adverse environmental impacts. (f) To ensure that non-residential land uses are compatible with the residential character of the area in which development is proposed.
The Respondent also drew attention to cl 9.3 of the 1991 LEP. 9.3 Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council has considered the objectives of this plan and the objectives of the zone and of any protected area in which the land is situated, and is of the opinion that the carrying out of the development complies with the objectives that are relevant to that development.
I have not yet had the benefit of submissions regarding cl 9.3, but the Respondent points out that the conditions imposed in the 2017 and 2019 judgments were responsive to cl 9.3 and at least in the Respondent's view the changes now proposed by the Applicant do not reflect the bases for their earlier imposition.
I am not in a position to, and do not, draw any conclusion in relation to cl 9.3.
In not granting leave, I am not in any way criticising the professional expertise of Mr Compton, or any of the experts who have appeared before the Court in this matter.
The Court orders: 1. The Notice of Motion filed 28 September 2022 is refused. 2. The matter is to return to Court for a case management conference by AVL on 3 November 2022 at 10am. …………………………. P Adam Acting Commissioner of the Court

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