Boensch v City of Parramatta Council [2019] NSWLEC 1249 | Case summary

Land and Environment Court (NSW)|2019-06-04

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: In these proceedings the City of Parramatta Council has moved the Court to set aside a Notice to Produce to the Court issued by the Applicant, Mr Boensch.
The substantive proceedings are in their second day of a two day hearing. The proceedings are an appeal, by Mr Boensch, against an order made by the Council to remove a number of vehicles, trailers and other items located in a laneway behind his premises at 255 Victoria Road, Rydalmere ("the Laneway"). The order is issued pursuant to s 124 of the Local Government Act 1993. Item 27 of s 124 allows an order to be issued requiring a person "to remove an object or matter from a public place or prevent any object or matter being deposited there" if: The object or matter (a) is causing or is likely to cause an obstruction or encroachment of or on the public place and the obstruction or encroachment is not authorised by or under any Act, or (b) is causing or is likely to cause danger, annoyance or inconvenience to the public
On 19 May 2019, 5 business days prior to the hearing, Mr Boensch provided to the Council a Notice to Produce to Court, requiring the Council to produce what can be summarised as any and all documents relating to previous development applications for adjoining properties, as well as information about a right of way over 1 Bridge Street, Rydalmere that benefits 3-5 Bridge Street. The Notice was not filed in the registry, as is the practice. Mr Boensch, who represents himself, made it returnable on the first day of the hearing. Some of the documents sought therein have been produced by the Council and have been tendered in evidence in the proceedings. Those documents are the Notices of Assessment and assessment reports for DA150/2011, DA623/2015 and DA213/2010, as well as a letter of satisfaction of a deferred commencement condition.
At the hearing, the Council indicated that it was unable to obtain information pertaining to DA96/144/DK or BA806/96, as the files have been archived. Further, it indicated it was not willing to produce a number of other documents sought by the applicant, including an Occupation Certificate. As such, Mr Boensch presses his Notice to Produce to the Court, and the Council now moves the Court to set it aside on the basis of relevance and the breadth of the documents sought. The Notice to Produce seeks the production of the following documents: "1) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formats for DA96/144/DK 2) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] for BA806/96 3) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] for DA150/2011 4) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] for DA623/2015 5) Applications and related information provided to and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals' restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] for DA213/2010 6) Applications and related information provided too [sic] and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce the change or cancellation or addition to any condition for the applications in point 1 to 5 above. 7) Provide any additional information of application made in relation to 1 Bridge Street, Rydalmere and 3-5 wether approved or rejected and for what reasons. 8) All information to any applications made, approved or refused in relation to 255 Victoria Road Rydalmere. All information includes all information leading to and including assessments. Information considered relevant or not relevant. 9) Applications and related information provided too and requested by Parramatta Council, internal assessment and decision relevant leading too [sic] and produce approvals, restriction; conditions; objections and result of dealing with these objections and on what grounds for in all formates [sic] in relation to an alleged right of way or a use of a right of way referred to in the Council Facts and contentions. Any other right of was relevant to the current application or if no application is ever been made to such right of way, what Parramatta Council involvement is in such possible alleged right of way and I or why such possible alleged right of way should not be expired or extinct that it has to be subject to these proceedings. 10) Provide documentation or reasons why it is that Parramatta Council Regulatory Department which made the orders in these proceedings, is acting in contrary to and known to act in the past contrary to the Parramatta Councils Development Department or decisions made and conditions imposed by Councils Development department in relations to the Properties referred to in the Parramatta Councils Facts and Contentions. In particular but not limited to 1 Bridge Street Rydalmere and 3-5 Bridge Street Rydalmere."

Submissions

The Applicant submits that the documents sought are relevant on a number of grounds.
The first ground advanced by the Applicant for the relevance of the documents is that the documents will assist the Court in understanding whether the current activities at 1 Bridge Street and 3-5 Bridge Street are being lawfully carried out. The Applicant submits that due to the flooding risk to the Laneway, it is unlikely that any of the activities being carried out at the rear of those properties would be lawful.
The second ground advanced by the Applicant for the relevance of the documents is that the documents will assist in his case that lawful access to properties adjoining the lane from the Laneway itself is not permitted by anyone other than himself. He submits that this is relevant to the issue raised in the Council's Statement of Facts and Contentions in Reply, which asserts that the items in the Laneway are obstructing access to a right of way that benefits 3-5 Bridge Street and burdens 1 Bridge Street.
On the other hand, the Council submits that its case is that the items are obstructing the use by the public of the Laneway, and the obstruction of the right of way is but one aspect of their case. Further, the Council submits that the Notice to Produce is excessively broad and that Mr Boensch has not established how the documents sought will be relevant to his case.

Principles

The Notice to Produce issued by Mr Boensch is issued pursuant to r 34.1 of the Uniform Civil Procedure Rules 2005 ("UCPR"). Although there is no requirement under the rules for the Notice to be filed, such Notices are generally filed in the Court's registry as a matter of practice. Nevertheless, I have proceeded on the basis that the lack of the filing of the document in the registry does not create any irregularity in the issuing of the Notice to Produce.
The principles regarding the grounds upon which a Notice to Produce issued pursuant to r 34.1 should be set aside are well established. The principles apply equally to subpoenas and to Notices to Produce issued pursuant to r 34.1. A helpful outline of the principle on setting aside a subpoena on the basis of a failure to establish relevance is provided by Simpson J in Regina v Saleam [1999] NSWCCA 86 in the following terms (at [11]): "the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case."
In establishing relevance, therefore, the first step for the Applicant is to identify the issues to which the documents are relevant. The second step is then for the Applicant to satisfy the Court that it is 'on the cards' that the documents sought will materially assist in that identified issue.

Consideration

From the outset, I consider that, contrary to the submissions made by Mr Boensch, whether the current activities at 1 Bridge Street or 3-5 Bridge Street are being carried out in accordance with a development consent has no relevance to the present proceedings.
Notwithstanding this, I accept that Mr Boensch has met the first test by identifying a legitimate forensic purpose for which the documents are sought. The issue to which the documents are relevant concerns whether the items in the Laneway are obstructing access to 1 Bridge Street, or to 3-5 Bridge Street. That is an issue raised squarely by the Council's Statement of Facts and Contentions in Reply, which asserts that the items are obstructing access to a right of way and easement that burdens 1 Bridge Street in favour of 3-5 Bridge Street. Mr Boensch's case is that there is no such lawful access that the items could be obstructing. This is the only issue that I accept the documents could be relevant to.
With respect to the second test, however, apart from the conditions of consent that attach to each of the consents referred to in the Notice to Produce, Mr Boensch has failed to establish that it is 'on the cards' that any of the other documents sought in the Notice to Produce will materially assist in that issue. The Notice to Produce is unacceptably broad in seeking documents beyond the scope of what will materially assist in that identified issue. I do not accept that development applications, internal assessments, objections to development applications, or information provided in support of an application, could materially assist in determining whether it is lawful for those using premises at 1 or 3-5 Bridge Street to obtain access from the Laneway. Similarly, I do not accept that an occupation certificate for either property would materially assist on the identified issue concerning access from the Laneway to 1 Bridge Street or 3-5 Bridge Street. Whether or not a person is occupying a premises lawfully at a particular moment in time has no relevance to the question of whether there is lawful access from the Laneway to those premises. Further, documents that pertain to a refusal of a development application, as sought in paragraphs 7 and 8, cannot be relevant to the issue of whether the items the subject of the order are obstructing lawful access to 1 Bridge Street or to 3-5 Bridge Street through a right of way. Similarly, Mr Boensch has not identified any document that would fall within paragraphs 7, 8, 9 or 10 that will materially assist in his case concerning lawful access to properties from the laneway.
The exception to this, in my view, are the conditions of the various development consents. I accept that Mr Boensch's evidence (tendered in the hearing) demonstrates that it is "on the cards" that the conditions will materially assist on the issue of whether lawful access is obtained from the Laneway to either 1 or 3-5 Bridge Street.
Mr Boensch has already been provided with the conditions of consent in the Notices of Determination for DA150/2011, DA623/2015 and DA213/2010. The only consent in relation to which he does not have the conditions is DA96/144/DK. The reference to BA806/96 appears to be to a building application only.
The letter contained in Exhibit A and dated 22 May 1997 clearly show that it is on the cards that a condition of consent is included in the development consent DA96/144/DK concerning 3-5 Bridge Street, which condition restricts access to the premises to the Bridge Street frontage.
Nevertheless, in light of my finding that the Notice to Produce is unacceptably broad in seeking documents beyond the scope of what will materially assist in the identified issue concerning access to 1 and 3-5 Bridge Street from the Laneway, it is liable to be set aside. Those documents that will materially assist are confined to the conditions of consent in the Notices of Determination, three of which have been provided. Accordingly, I have determined that it is appropriate for an order to be made to set aside the Notice to Produce to the Court dated 19 May 2019, but to grant leave to the applicant to issue a Notice to Produce requiring the production of the Notice of Determination for DA96/144/DK and the determination of BA806/96. I am prepared to make directions at the conclusion of final submissions concerning the return date of a notice to produce issued pursuant to that leave, with liberty to restore the matter for further submissions on anything produced as a result of the same.
The Court orders that: 1. The Notice to Produce to the Court dated 19 May 2019 is set aside. 2. Leave is granted to the Applicant to issue a Notice to Produce requiring the production of the Notice of Determination for DA96/144/DK and the determination and conditions of BA806/96.

Addendum made at the conclusion of the hearing to withdraw order 2

Subsequent to the making of the above orders in the morning of 4 June 2019, the Council (later in the day) produced the documents referred to in order 2 above. They were then tendered in evidence. At that time I indicated that I was satisfied that those documents meet the description of the documents that would be sought by the Notice to Produce the subject of my order for leave in order 2. As such, there is no longer any requirement for leave to be granted to the applicant to issue a further Notice to Produce seeking the production of documents.
Accordingly, at the conclusion of the evidence at the hearing (and at the time of making directions for the filing of written submissions), by order of the Court, order 2 (recorded above at [19]) was withdrawn and set aside in accordance with the power to set aside or vary an order, which is available to me pursuant to r 36.16(3) of the UCPR.
The order that I made withdrawing or setting aside order 2 was as follows. The Court orders that: 1. Order 2 made on 4 June 2019 concerning the granting of leave to issue a Notice to Produce, is hereby withdrawn. ………………………… J Gray Commissioner of the Court

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: 05 June 2019

Boensch v City of Parramatta Council

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