Botany Bay City Council v Minister for Planning and Infrastructure

Some Background 8The project approval was granted by the Planning Assessment Commission of New South Wales, as delegate of the Minister, on 19 September 2013, and included many conditions applicable to the question of a construction certificate (Part B of the Conditions in Schedule 2). Of particular concern to the applicant is Condition B2. 9The approval refers to the proponent as the "Crown Prosha Joint Venture". The second to fifth respondents are four separate companies, one of which is Prosha Pty Ltd. The Points of Claim ('POC') filed on 3 February 2014 particularise that the second, third and fourth respondents are relevant land owners, and notes that the fourth and fifth respondents comprise the proponent. 10In its POC the Council makes five claims against the approval. Numbers three and four of the five are the subject of the application to adduce expert evidence. 11Claim 3 (POC 22 - 25) deals with key issue number 13 in the Director-General's Requirements, concerning drainage and ground water. 12POC 23 asserts that the Minister in his consideration of the project "was required to consider the matters in key issue 13 or alternatively it would be manifestly unreasonable not to consider these matters". POC 24 asserts a breach of duty by the first respondent in failing to consider or adequately consider the matters in that key issue, and among the particulars upon which the applicant relies are the following: (v) Having regard to the topography of the land, the scale and design of the development and that it contained a below-ground car park and proposed the extinguishment of the easements, normal practice in assessing the drainage, flooding and stormwater impacts of the development would require such an overland flow path analysis; (vi) No such overland flow path analysis was provided to or considered by the First Respondent or the Director-General; (vii) In the absence of such an overland flow path analysis no adequate assessment of the drainage, flooding and stormwater impacts of the development could be made. 13Claim 4 relies upon the requirements of Condition B2, especially the following: Design Modifications B2 Prior to the issue of the first Construction Certificate, plans and specifications demonstrating incorporation of the following modifications shall be submitted and approved by the Director General. (a) Unit sizes shall be amended to meet the requirements of the Residential Flat Design Code ... 14POC 27 and 28 say: 27. The extent of the modifications referred to in condition B2 and the extent of the discretion granted to the Director-General under the condition was such that: (a) the First Respondent was not granting approval to carry out the project pursuant to s.75J of the Act and was not considering the impacts of that project and whether the project should be approved; (b) condition B2 delegated power to the Director-General to approve the carrying out of the project in circumstances in which there was no such power to delegate this function to the Director-General; (c) it was not a modification or a condition authorised by s.75J(4) of the Act. Particulars The Applicant relies upon the following: (i) To the extent that the references in the condition to "the requirements of the Residential Flat Design Code" (the Code) is a reference to the table and accompanying illustrations at page 68 and 69 of the Code and referred to in the "Rules of Thumb" at page 69 as "the minimum standards" 246 units of the maximum number of 405 units in the project would be redesigned and to be the subject of amended plans; (ii) The large number of potential means of redesigning the project so as to meet these requirements of the Code was such that the First Respondent was not in a position to determine the consequences and impacts of the project were it to be approved; (iii) By reason of the discretion contained with the Code the width of the discretion to the Director-General granted by condition B2(a) was such that even if there was a failure to comply with the "minimum standards" in the table and accompanying illustrations there may still be compliance with the Code. 28. Alternatively in the circumstances of the development the subject of the project approval the imposition of a condition in the form of condition B2(a) was manifestly unreasonable. 15To assist in making good its particulars in POC 24 the applicant wishes to rely upon the affidavit of Andrew Bewsher, a flood risk management consultant, sworn on 2 February 2014 and filed on 4 February, and, in respect of those in POC 27, the affidavit of Nicholas Jonathan Archdale Tayler, an architect, sworn on 6 February 2014 and filed on 7 February. 16The Court declined to examine these affidavits in detail, but my attention was drawn to a section entitled "My Instructions" in the Bewsher affidavit, in which Mr Bewsher deposes: 4. My instructions were, from a hydrological and stormwater drainage perspective, to: (a) review the information provided by the Applicant in relation to the stormwater drainage aspects of the development; (b) review the assessments of this information that were undertaken by the Department of Planning and Infrastructure (DP&I) and the Planning Assessment Commission (PAC), and determine whether the assessments were appropriate and took account of the relevant stormwater drainage considerations, having regard to normal practice in NSW; and (c) identify any shortcomings in the stormwater drainage assessment process. 6. My instructions were to focus on the stormwater issues related to water quantity rather than water quality. 17I note that Mr Tayler, in his paragraph 5, records that his instructions were as follows: I have received instructions from the applicant to determine the number of units in the approved plans that are less than the internal areas as shown in the table on the top of page 69 of the Residential Flat Design Code which are unit internal and external area figures for the different types of apartments as shown on pages 67 and 68 of the RFDC.

The Principles 18Conveniently, Biscoe J stated both the principles of judicial review, and the principles governing use of expert evidence in judicial review proceedings, in his judgment in Arnold v Minister Administering the Water Management Act 2000 (No 6) ('Arnold') [2013] NSWLEC 73, at, respectively, [105] - [118] and [119] - [139]. 19I adopt his Honour's analysis in both respects. 20His Honour also examined many of the cases to which counsel referred the Court in the present matter, and I will turn to them after quoting the gravamen of Arnold. 21His Honour relevantly said: 123 In my opinion, the admissibility of evidence not actually or constructively before the decision-maker on an application for judicial review of an administrative decision depends on the ground of review, the relevant issue and the nature of the evidence. 124 ... The precise limit of the admissibility of expert evidence for this purpose is not a bright line. But expert evidence is likely to be admissible where, for example, the technical nature of the material before the decision-maker requiring review is such that it may not be fully understood by the court without expert evidence. The admissibility of expert evidence for this purpose is a different question to whether, at the end of the day, the court is satisfied that the hard to prove ground of manifest unreasonableness has been established. It is insufficient to establish mere factual error. 125 However, it is difficult to see the relevance of material not actually or constructively before the decision-maker where the ground of review is (without more) failure to take account of a mandatory relevant matter or taking account of a prohibited matter: Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539 - 540; approved McCormack v Deputy Commissioner of Taxation Large Business & International [2001] FCA 1700, (2001) 114 FCR 574 at [37]; Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38 at [45] (Pepper J). ... 128 Expert evidence not before the decision-maker may be admitted where it is relevant to a ground of denial of procedural fairness, or a ground of absence of jurisdictional fact, or a ground that the decision was based on a finding of a particular fact which did not exist, or where the decision-maker had information that should have caused her to make further inquiries: McCormack. Expert opinion evidence may be admitted as to the meaning of technical terms in material before the decision-maker: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707, (2005) 148 FCR 446 at [467] (Weinberg J). 129 Expert and other evidence not before the decision-maker may be admitted to show that it is obvious that there was material readily available to the decision-maker which was likely to be of critical importance in relation to a central issue for determination. Such evidence may be regarded as relevant to a ground of manifest unreasonableness: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46, (1985) 6 FCR 155 at [33] (Wilcox J); ... Or it may be regarded as relevant to a ground of jurisdictional error by constructive failure to exercise jurisdiction: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429 at [25]; ... Or it may be regarded as relevant where it is alleged that there was a breach of a duty to make inquiries: ... King v Great Lakes Shire Council [('King v Great Lakes')] (1986) 58 LGRA 366, 371, 376, 383 (Cripps CJ); Caldera Environment Centre Inc v Tweed Shire Council [('Caldera')] [1993] NSWLEC 102 (Talbot J). The cases to which I have referred in this paragraph were considered by me in more detail in Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 at [77] - [83]. See also Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38 at [42] - [45] (Pepper J). ... 134 In submitting that Mr Wade's evidence is irrelevant and therefore inadmissible, the respondents rely heavily on the decision in Moolarben Coal Mines Pty Ltd v Director-General, Department of Industry and Investment (NSW) (Agriculture Division) [('Moolarben')] [2011] NSWLEC 191, (2011) 186 LGERA 342 at [68] - [76]. There Moore AJ rejected expert evidence tendered in relation to the manifest unreasonableness ground. His Honour held that that ground had to be determined only by reference to material before the decision-maker, citing McCormack and Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707 at [91] per Spigelman CJ. His Honour acknowledged that there was persuasive authority that expert evidence was admissible to make good that ground, citing Australian Retailers Association at [457]. His Honour said he preferred the approach that it was irrelevant and therefore inadmissible. 135 In Woolworths Ltd v Pallas Newco Pty Ltd at [91] Spigelman CJ said of the primary judge's reasons (omitting citations): His Honour gave no reasons for this conclusion [that the Council's decision was unreasonable in the Wednesbury sense]. The reasons earlier expressed in his Honour's judgment did not distinguish in any respect between the documents available to him and the documents available to the Council. Although he purported to act only on the basis of documents before the Council, his Honour did not identify what aspects of those documents formed the basis of this conclusion. Nor did his reasons indicate why the conclusion on the more limited range of evidence, with respect to the proper characterisation of the development proposal, was overwhelmingly clear so that a decision to the contrary was so plainly incorrect as to satisfy the stringent requirements of the Wednesbury unreasonableness test. 136 In Moolarben at [75] Moore AJ expressed the opinion that it was tolerably clear Spigelman CJ's analysis proceeded on the premise that the ground of Wednesbury unreasonableness should have been determined only by reference to the material before the decision-maker, which was to be contrasted with the approach to be taken in relation to defining the existence of a jurisdictional fact. 137 In my view, neither Woolworths nor Moolarben lay down an absolute rule that evidence not before the decision-maker can never in any circumstances be admitted in relation to the ground of manifest unreasonableness. ... In Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707, (2005) 148 FCR 446 at [457]. ... Weinberg J said that in principle, albeit with some reluctance (having regard to the additional time and costs taken up with such evidence), he could see no reason why, in an appropriate case, expert evidence tendered to show that a decision (challenged on the ground of Wednesbury unreasonableness) was entirely reasonable, should not be admitted. ... 22Turning now to earlier relevant cases, I note that, in Caldera, the applicant sought to rely on an expert to show: 1. that the council failed to consider certain species of fauna, 2. that there was inadequate consideration of the impact on other species of fauna including their respective habitats, and 3. that if the respondent seeks to persuade the Court not to make an order in the exercise of its discretion that the failure to consider or properly consider the impact on flora and fauna would be a relevant factor to be taken into account in the consideration of whether to exercise its discretion. 23Talbot J examined some earlier cases, relying especially on the Court of Appeal decision in Parramatta City Council v Hale (1982) 47 LGRA 319, and then said: The limited extent to which the Court can go beyond the material actually before the council might be summarised as follows:- 1. Where there is a failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed. 2. To show what a council acting reasonably ought to have done. 3. To achieve an understanding of the environmental consequences of the action or inaction of the council. 4. To explain factors, principles or materials relevant to the determination. 5. In a challenge to the reasonableness of the decision where all of the relevant material before the council is in the possession of the witness to explain what was before the council. 6. As to the existence and nature of information said to be relevant to the decision where council proceeds to a decision without making any attempt to obtain that information. (Prasad v The Minister for Immigration 65ALR 549 at 563 Jacfin Pty Ltd v The Taft Entertainment Company Pty Ltd & Ors No. 40033 of 1985 Stein J 3 October 1985 Unreported and Hale). 24His Honour concluded: Being solely a critique of the Warren Report, the evidence of Mr Milledge does not fit into any of the identified categories of admissible evidence in this class of proceedings. It is not a case where the council gave no consideration at all nor is it a case where no attention is paid to the head of consideration. Information was obtained and inquiries were made. The conditions of consent addressed the potential for impact. There was consultation with and advice from the National Parks and Wildlife Service with whom an agreement must be reached before the development proceeds. Subject to those parts of the affidavit already referred to, the evidence is rejected. 25Several other decisions which predated Arnold figured prominently among the parties' submissions in the present matter, and, for completeness, I will now deal with them briefly in chronological order. 26In Bizzanelli v Bizzanelli ('Bizzanelli') [2007] NSWSC 1085, Brereton J dealt with a request by the defendants to adduce expert evidence from an accountant, concluding (at [8]) that he could "not see how the answer to the question proposed to be asked of the accountant could possibly inform the exercise of the limited discretion that the Court had" in that matter, and (at [10]) "could not possibly inform the real issues in the proceedings as presently constituted". 27In Shellharbour City Council v Minister for Planning ('Shellharbour') [2011] NSWCA 195; 189 LGERA 348, the Court of Appeal dealt with an appeal from Pain J's refusal to make Rule 31.19 directions in respect of adducing an "expert ecological report" to show that two statutory instruments had a particular technical/scientific meaning. Her Honour had noted (at [6]), at first instance, authority to the effect "that the expert evidence has to be reasonably required to resolve the issue in the proceedings", and (at [7]) that "most of the terms about which expert evidence is sought to be adduced are defined in the instrument in question". Her Honour concluded (at [9]) that the evidence would "be of marginal relevance, if any, if called". 28Hodgson JA said (at [26]), [29] and [31]): 26. ... where, as in this case, it may very reasonably seem highly unlikely that expert evidence will be relevant to an issue, it may be necessary for an applicant for directions for expert evidence to provide some specificity as to the proposition or propositions that the expert evidence is expected to support, rather than merely give a vague indication of the area in which the expert evidence will be given. ... 29. In my opinion, the primary judge could properly take the view that a substantial contest of experts would be a waste of time and money, having regard to her assessment of the unlikelihood that it could be of assistance. ... 31. These reasons do not of themselves rule out the possibility that the Council could apply again for directions, this time specifying propositions that the expert evidence was expected to support. Whether such an application would be entertained, having regard to its lateness and the history of the proceedings, would be a matter for the Land and Environment Court. Of course, this comment is not intended to suggest that such an application should be entertained or that it might succeed. 29Giles JA said of Rule 31.19 (at [35]): 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. 30Campbell JA agreed with both his colleagues. 31Craig J considered Shellharbour in DEXUS Funds Management Ltd v Blacktown City Council ('DEXUS') [2011] NSWLEC 156, adopting (at [8]) Giles JA's remarks (at [35] - see [29] above) - "... relevance and admissibility alone will be insufficient ... it is necessary to determine whether the evidence is 'reasonably required' in order to ensure the just, quick, and cheap disposition of the real issues in dispute". 32His Honour went on to note (at [18], and [21] - [22]): 18. ... If the role of the intended experts is to identify "factual matters" then that expert is in no better position to do so than is the Court. ... 21. All of these matters of "fact" ought not, for the purpose of judicial review, require expert evidence. Rather, at least as they are framed both in the letter of particulars provided by DEXUS and articulated in the written submission, they are matters that are capable of being argued on the basis of the material provided to or available to the Council at the time of its determination. 22. I do not overlook the claim made by DEXUS alleging that the Council's decision was manifestly unreasonable. However, as this claim is pleaded simply by reference to the traffic and contaminated land issues said not to have been considered by the Council, it does not appear to me to be a ground that gives rise to an independent basis upon which to direct expert evidence. 33His Honour then adopted (at [23]) Hodgson JA's remarks in Shellharbour (at [26] - see [28] above). His Honour commented (at [24]): 24. I have earlier identified the limited circumstances in which, according to authority, expert evidence will be relevant to be adduced in judicial review proceedings. Particularly is this limitation made apparent in cases, such as the present, where the ground of challenge is based upon a failure to consider matters that the decision-make[r] was bound to consider. A case of that kind is one in which it is "highly unlikely that expert evidence will be relevant to an issue". That being so, the specificity of the evidence intended to be the subject of leave so that the manner upon which it potentially bears upon the issue can be determined. The kind of specificity required was not before me. This requirement for some specificity is perhaps no more than an articulation of the requirement that, in giving effect to UCPR 31.19, the evidence be "reasonably required to resolve the proceedings" and that something more than relevance and admissibility be demonstrated in order to fulfil the purpose that the rule is intended to serve. 34Leave to adduce expert evidence on the two issues nominated was refused. 35In Friends of King Edward Park Inc v Newcastle City Council ('King Edward Park') [2012] NSWLEC 113; 194 LGERA 226, to which Biscoe J referred in Arnold ([21] "129" above), his Honour noted (at [70]) that "UCPR 31.19 operates as a threshold step to expert evidence being permitted, independent of admissibility", and that 31.20 envisages a direction that "expert evidence may not be adduced". 36Attention needs to be given, his Honour said, to the guiding principles of "just quick and cheap", including as to costs implications of decisions made. 37His Honour endorsed (at [73]) Shellharbour as "consistent with other authority", including Bizzanelli, and referred also (at [74] - [83]) to other cases, including King v Great Lakes, and Caldera. 38In Gilbank v Bloore ('Gilbank') [2012] NSWLEC 172, Craig J surveyed authorities from Caldera through to King Edward Park. His Honour noted (at [14]) that decisions such as these must be made "on the basis of the pleaded facts", or else "a trial of fact would be required in advance of the final hearing", and that "this cannot have been the intention of the rule maker". 39His Honour added (at [15]): I make this point because in their submissions, the respondents indicated that the applicants' case, in effect, proceeds on a false premise. In as much as the applicants' case pleads inferences as to the manner in which the Council made the relevant determination, based upon a report prepared by a staff member, the respondents submit that the inferences pleaded are not open or are incorrectly drawn. They may be correct in so submitting. However, the report was not before me and even if it was it would seem to me to be inappropriate to determine the applicants' motion for a direction under UCPR r 31.19 only after considering and determining the inferences that should be drawn from the staff report and their relevance to the decision of the collegiate body. That is a matter for final hearing. 40His Honour concluded (at [18] - [19]): 18 Whether these allegations are ever made good will, of course, be a matter to be determined at trial. However, on the basis of the claim sought to be argued by the applicants, it does seem to me that expert evidence may reasonably be led as to the existence and application of an Australian standard directed to a driveway able to be utilised on the subject site. Such evidence may also address the result of an inquiry as to the existence of such a standard when determining the capacity of vehicles to pass along the eastern boundary and to the rear of the subject site. 19 Consistent with the earlier statements of principle that I have identified, it also seems to me that, on the basis of the pleaded case, evidence may be led to show what a council acting reasonably would have considered as to vehicular access within the site when determining the subject development application. Assuming the applicants make good their claim that the Council had an obligation to consider the relevant standard, the environmental consequences of the Council's failure so to do is arguably material to the resolution of these proceedings. The latter proposition has the consequence that the evidence in respect of which the direction is sought is reasonably required to resolve the proceedings. Thus, the provisions of UCPR r 31.19 are engaged (cf [King Edward Park] at [90]).

Submissions 41The applicant Council (subs, par 4) concedes that "if the expert evidence could not possibly inform the real issues then the Court is likely to refuse leave": Bizzanelli. However, the Council contends (par 5) that its expert evidence is admissible and relevant, and that leave should not be refused on this ground. 42The applicant also concedes (par 6) that relevance and admissibility are not sufficient to justify leave: Shellharbour, King Edward Park, and Gilbank. 43Mr Hale, for the applicant, submits (par 7) that, as its expert evidence is "within a relatively narrow compass", "not lengthy", and directed to establishing facts particularised in the POC, it satisfies the tests in Caldera, and should be adduced for the following reasons (stated in par 16): (a) The evidence is necessary to establish the facts particularised in paragraphs 24(v), (vi) and (vii) and paragraph 27(i), (ii) and (iii) of the Applicant's Points of Claim; (b) The evidence is relevant and admissible or at least arguably so; (c) Accordingly, the expert evidence is reasonably required to resolve the proceedings; (d) The expert evidence is not lengthy, within a relatively narrow compass and will not be attended by unnecessary cost; (e) The subject matter of the proceedings is substantial and of considerable importance to the parties. It involves the validity of the project approval of a substantial redevelopment of the Eastlakes Shopping Centre. The cost to the parties is proportionate to the importance and complexity of the subject matter of the dispute: s.60 CPA; (f) To refuse leave would deny the Applicant the opportunity to establish an essential component of its claim in the proceedings; (g) To refuse leave would be contrary to the dictates of justice: s.58 CPA. 44Mr Hale made much of the respondents' failure (at least so far) to apply to have the applicant's POC or particulars struck out, inferring, contrary to the above authorities, a consequential entitlement to adduce this evidence in order to make them good. 45Mr Galasso (for the second to fifth respondents) urges (pars 3 - 6) the Court to begin with the always limited role for expert evidence in judicial review proceedings, and to adapt the principles to the nature of the decision being impugned. This is a Part 3A project approval, not a consent under Part 4, and such approvals have been held to allow for a more flexible approach to conditions imposed, and a more limited approach to mandatory relevant considerations. He cites, respectively, Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; 160 LGERA 20, and Coffs Harbour City Council v Minister for Planning and Infrastructure [2013] NSWCA 44; 193 LGERA 203 in support of these contentions, and I accept them. 46Contrary to the applicant's submission, Mr Galasso contends (par 18) that the affidavit evidence of neither expert "actually addresses any of the six elements in Caldera". In fact, he submits, relying on the instructions given to the deponents, that the two witnesses address only the merits of the first respondent's decision to grant project approval. 47It is mandatory (par 23) that the Minister consider the Director-General's Assessment Report and its statement of compliance with the environmental assessment requirements. Mr Galasso contends (par 24) that the witness Bewsher "simply transgresses into a criticism of the Report and material prepared by the proponent with respect to the project". (Mr Galasso goes on to particularise those failings in Bewsher's material). He contends (par 25) that Bewsher in no "substantive or real way" addresses "what ... is said to be the defect in the decision". In his oral submissions he said that Council was merely complaining that its submissions to the Director-General did not prevail. 48When it comes to the challenged condition (B2(a)), and the supporting particulars in the POC, the degree of flexibility envisaged by the Courts "is the ultimate issue to be determined at the final hearing" of the challenge. Tayler is said (par 29) to identify only a possibility flowing from the condition, whereas the Court has to determine what the consequence actually is. The condition contemplates a redesign of the built form, so Tayler's views on internal unit sizes add nothing of use to the Court. 49Mr Galasso relied particularly on the principles stated by Craig J in DEXUS and Gilbank. 50Mr Shearer (for the Minister) adopted Mr Galasso's submissions and relied on the test enunciated in Shellharbour. Mr Hale's submissions (see [43] above) rely on the concept that the evidence is "potentially relevant" and "arguably admissible", but the established test mandates that it be "reasonably required" to resolve the proceedings. Mr Hale made no case for the Court to decide that the evidence is "reasonably required". Mr Shearer says that, as it is not, allowing it would, contrary to the objects of Part 6 of the Civil Procedure Act 2005, waste time and add cost.

Conclusion 51The submissions of the respondents are clearly well-founded, and should be preferred and accepted. 52On the principles well established by the cases detailed above, I find that the applicant has failed to establish that the evidence of the witnesses Bewsher and Tayler is "reasonably required" to resolve the real issues placed before the Court by the applicant's five claims. 53Leave to rely upon the expert evidence already filed should be, and is, refused.

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: 28 February 2014