(2009) 168 LGERA 260
Shellharbour City Council v Minister for Planning [2011] NSWCA 195
(2011) 189 LGERA 348
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Source
Original judgment source is linked above.
Catchwords
(2009) 168 LGERA 260
Shellharbour City Council v Minister for Planning [2011] NSWCA 195(2011) 189 LGERA 348
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Judgment (6 paragraphs)
[1]
EX TEMPORE Judgment
HIS HONOUR: By its notice of motion filed 23 December 2022 Ku-ring-gai Council ('Council'), the respondent in these Class 1 appeal proceedings commenced 18 November 2022, seeks a review of part of a decision made by a Registrar of the Court on 9 December 2022, to refuse Council's application for leave to adduce town planning evidence. The motion was listed and heard before me today.
Mr D Robertson of counsel appeared for Council and Mr J Doyle of counsel appeared for Alex Bennett and Ingrid Johanna King, the respondents on the motion.
[2]
Background
The background facts are uncontentious. Alex Bennett and Ingrid Johanna King (hereinafter, 'applicants') are the owners of a property, "Purulia", at 16 Fox Valley Road, Wahroonga, which is located within Ku-ring-gai Council's local government area. The property is a listed heritage item under the Ku-ring-gai Local Environmental Plan 2015 ('KLEP') and is also on the State Heritage Register.
On 1 July 2020, the applicants lodged a development application with Council seeking consent for development which involved the removal of three trees and the demolition of an in-ground swimming pool on the property. On 15 January 2021, Council granted development consent (subject to conditions) for the development which provided for the removal of two of the three trees and the demolition of the swimming pool ('Consent'). The Consent did not provide for the removal of what is referred to as "Tree 3", which is a large Himalayan Cedar tree. The tree is 17m high, has a canopy spread of 18m, is between 60 and 80 years old, and is located approximately 8.3m from the dwelling which is part of the heritage item.
On 23 August 2021, the applicants lodged a modification application with Council which sought to vary the Consent to make changes to the condition(s) requiring the retention of Tree 3. On 18 November 2021, Council refused the application for modification, and, on that day, the applicants commenced these Class 1 proceedings appealing against Council's refusal of the modification application.
On 8 December 2022, Council filed its statement of facts and contentions which, for present purposes, raised the following contentions as to why the modification application should be refused: first, the proposed removal of Tree 3 will result in adverse impacts to the landscape character of the area and the tree canopy; second, it will have an unacceptable impact upon the heritage significance of the item; third, that insufficient justification for the proposal has been provided; and fourth, the proposal is not in the public interest. Contentions were also raised in relation to adverse impacts to solar access and that insufficient information has been provided regarding the proposed new landscape design.
At the first directions hearing before the Registrar on 9 December 2022, Council's solicitors provided the Registrar with proposed short minutes of order which included directions in accordance with the practice note for proceedings in Classes 1, 2 and 3 of the Court's jurisdiction and directions related to rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') for the parties to adduce expert evidence in respect of landscaping, heritage, and town planning matters. The applicants opposed the directions to the extent that they involved the provision of separate expert town planning evidence and submitted to the Registrar that town planning matters could be dealt with by the parties' landscaping and heritage experts. The Registrar accepted the applicants' submissions and refused to make the direction sought by Council for expert town planning evidence.
[3]
Evidence
The evidence in support of the motion comprises the affidavit of Michael James Winram, Council's solicitor, sworn 23 December 2022. The affidavit was admitted without objection.
In summary, the uncontested evidence is that since the directions hearing before the Registrar, Council's landscaping and heritage experts have informed Council's solicitors that there are various contentions in the statement of facts and contentions that they are unable to address because these contentions are outside their respective areas of expertise.
Council's landscaping expert, Julie Marler, has indicated that she cannot address contention 1(b)(i), which relates to cl 1.2(6) of the KLEP concerning the character of a low-density residential area, nor give evidence or address contention 1(b)(iii), which relates to a general aim 1A.5(xi) of the Ku-ring-gai Local Centres Development Control Plan 2017 ('DCP'), which concerns the long-term survival of tree and vegetation cover within the Ku-ring-gai local government area.
Council's heritage expert, Leona Goldstein, has indicated that she can only address contention 2, which relates to the suggestion of significant impact or significant unacceptable impact on a heritage item, and none of the other contentions.
[4]
Consideration
In summary, Council's position is that it does not have, and has not retained, expert evidence to address certain of the contentions which raise matters of a town planning nature in the statement of facts and contentions filed on 8 December 2022. These contentions include, first, that the proposal is contrary to cl 1.2(2)(o) of the KLEP in relation to the character of a low-density residential area (that is the contention I referred to earlier, 1(b)(i)); second, that the proposal is contrary to the general aim of 1A.5(xi) of the DCP as it does not ensure the long-term survival of Ku-ring-gai's tree and vegetation cover (that is the contention I referred to earlier, 1(b)(iii)); third, that the proposal is not in the public interest (that is contention 4 in the statement of facts and contentions); fourth, that the proposal does not provide sufficient details regarding adverse impacts to solar access of the site and the neighbouring properties (that is contention 6 in the statement of facts and contentions).
Conscious that I am not considering the merits of the proposal, the principles governing the exercise of the Court's power to review a registrar's decision are well-known and the references can be shortly cited: Groeneveld v Wollongong City Council [2009] NSWLEC 49; (2009) 168 LGERA 260 at [12]-[13], which itself considered a similar decision of the Court of Appeal in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [8]-[9]. More recently, in Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [52], Kirk JA described the Court's power to review a registrar's decision as follows:
"The power of review is discretionary. A review does not require demonstration of error, although 'there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so'..."
Earlier in Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348 at [35], Giles JA explained the purpose of UCPR r 31.19 as follows:
"It should be made clear that this is not the correct approach to directions under r 31.19 of the UCPR. The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible."
It is clear that the matters which a Court can take into account when deciding whether to exercise the power to review a registrar's decision include either an error of law or material change in circumstances. As will be seen in due course, a material change in circumstances has influenced my consideration of this matter.
Each of the parties provided written and made oral submissions. Mr Robertson put Council's position as follows.
First, contentions 1 and 2, which raise matters concerning the planning justification for departing from various provisions of the KLEP and the DCP, are raised because the applicants, in their statement of facts and contentions in reply, have asserted that the proposal meets all the objectives of Pt 4A of the DCP and is consistent with other parts of the KLEP. In those circumstances, these matters are contested issues and Council should be entitled to adduce evidence from its own town planner.
Second, in relation to contention 3, which raises matters concerning the planning justification for departing from objective 6 of Pt 13.1 of the DCP, this is a matter about which Council should be entitled to adduce town planning evidence.
Third, in relation to contention 4, which raises the issue in relation to the public interest, this is a type of matter which is usually and ordinarily addressed by a town planner.
Fourth, in relation to contention 6, which raises the issue as to whether sufficient information has been provided regarding the adverse impacts to solar access of the site and neighbouring properties, again, this is an issue ordinarily addressed by a town planner.
Fifth, in relation to contention 7, which raises the question of whether a site analysis plan has been provided and whether such a plan is adequate, this is a matter ordinarily addressed by a town planner. (In passing, I note that it may well be that that is no longer a contention, because I am informed from the bar table and I accept, that a site analysis plan has now been provided.)
Mr Doyle, on behalf of the applicants, reminds the Court that although these proceedings raise serious questions primarily in relation to heritage concerns, effectively, the appeal concerns the retention of a single tree (Tree 3) on a residential block as a condition of development consent. Mr Doyle points the Court to the background facts in relation to the heritage significance of the item and that it was originally designed and built by a well-known architect, William Hardy Wilson, as his own house, and the fact that it is also listed on the State Heritage Register.
Mr Doyle emphasises that the applicants' case is that the removal of Tree 3 is, in fact, to facilitate the restoration of the original garden layout for which the Heritage Council of NSW provided a grant, and that Council's heritage inventory, extracts of which are set out in the statement of facts and contentions, emphasises that formal garden layout. (In passing, I note that I accept the submission that the primary issue in these proceedings relates to heritage matters, and I express no view, except that it appears to be properly arguable, that the unusual circumstance of the removal of a large tree may well assist the retention of the heritage significance of the item.)
Mr Doyle indicates that the applicants do not accept that evidence from the town planner is required where, first, two experts have already been qualified for each side - that is, two heritage architects and two landscape architects - and, in that circumstance, the costs and time involved with the retention of a further expert, or class of experts, would be disproportionate, and that the Court should be cognisant of the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) ('CP Act') and s 38(1) of the Land and Environment Court Act 1979 (NSW) ('Court Act').
Mr Doyle also notes that the applicants did submit to the Registrar, and the Registrar accepted, that the outstanding issues were sufficiently wrapped up in the heritage and landscape issues as to not require a separate town planning witness, and that Council has not adduced evidence which sufficiently argues that the Registrar's decision should be revisited.
Mr Doyle also raised the manner in which this Court conducts its Class 1 hearings, where a commissioner brings their own independent expertise and experience, and, in that circumstance, the evidence in support of this motion would not satisfy the Court that the commissioner who hears the case would not be able to decide the matter, even taking into account there may be town planning concerns.
Having considered the well-known principles and the evidence and the submissions, I note that this Court does not lightly interfere with a considered decision of a registrar.
I was initially attracted to the submissions of Mr Doyle, that in circumstances where the issue relates to the removal of one tree, and where heritage and landscaping expertise is available in any event, the Court would not be further assisted by town planning evidence, and this would add disproportionately to the costs, time and length of the hearing. However, having considered the material more closely, I am of the view that there is a proper basis for the Court to amend the order of the Registrar. My reasons may be shortly stated.
Although I consider the decision of the Registrar was an appropriate and proper response to the submissions made before her by the parties, I consider that the Court now has new, uncontested sworn evidence that was not before the Registrar, that the experts retained by Council, presumably conscious of their enduring obligations under the expert witness code of conduct in Sch 7 of the UCPR, have indicated that they are unable to assist in relation to certain discrete contentions. Effectively, there has been a change in circumstances which I consider sufficient to warrant reconsideration.
Secondly, while conscious of the applicant's "only one tree submission", I consider that the issues of a town planning matter raised in the various contentions are not without some sophistication, and I find that the Court is likely to be assisted by evidence discretely directed to the town planning issues joined between the parties through the statement of facts and contentions and the statement of facts and contentions in reply, and I accept Council's evidence that the experts it has retained do not have the expertise to address the contentions and issues Council wishes to raise.
Balancing the interests of justice between the parties, and conscious of s 56 of the CP Act and s 38 of the Court Act, the orders I propose properly address the issues between the parties on a just and fair basis.
With the above comments in mind, I note that Mr Robertson, while not adopting this as his primary submission, indicated that if I was minded to find in Council's favour, Council would either agree to retain an independent expert (that is, one not employed by Council), or would accept a single party expert (in the area of town planning) to address the concerns Council raises.
In the circumstances, I consider it is appropriate that the order of the Registrar should be amended to provide for a single party expert in the area of town planning, and I direct the parties to confer and provide my associate with a proposed order reflecting this finding within 48 hours.
[5]
Orders
The orders of the Court are:
1. The parties are directed to confer and provide a draft order reflecting the finding that evidence of a town planning nature is to be given by a single party expert. Such draft order to be provided to my associate within 48 hours. Upon receipt of the draft order, the Court will enter orders to vary Order 4(a) of the orders made by the Registrar on 9 December 2022.
[6]
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: 03 March 2023