Britely Property Pty Ltd v Randwick City Council

The circumstances that prompt the request to re-open the proceedings

1. It is accepted by the parties that a principal contested issue in the proceedings is the sufficiency of provision of on-site car parking. Contention 11 states: "The development application should be refused because the development provides insufficient provision for car parking which will not provide for the needs of future residents." (Respondent's Statement of Facts and Contentions, 15 June 2020)
2. The relevant development standard and controls for car parking are provided under clause 29(2)(e)(iia) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) and at Section B7 of Randwick Development Control Plan 2013 (DCP 2013) respectively. It is the agreed position of the parties that the development application relies on a variation to the relevant car parking rates in these instruments. Importantly the provision at cl 29(2)(e)(iia) of SEPP ARH is a 'do not refuse standard', and the relevant control is contained in DCP 2013 - a rate of 1 space/5 rooms and 1 space for the resident caretaker.
3. The Affidavit notes that, at the Ordinary Council Meeting of Randwick City Council on 28 July 2020, the Council considered a report on the Kensington and Kingsford Draft Development Control Plan (draft DCP). The site of the proposed development falls within the bounds of the Kingsford town centre. The Applicant highlights that at Section 21.0: Transport, Traffic, Parking and Access, the draft DCP provides updated minimum on-site parking rates with student accommodation proposed to require zero on-site parking: Source: Extract from draft DCP, Section 21: Parking Rates
4. The Affidavit states: "At no time prior to or during the hearing was the Applicant or the Court made aware that the draft DCP was about to be published, or considered by the Council, with zero parking in the Kensington and Kingsford Town Centre."
5. The resolution of the Council in relation to the draft DCP was as follows: "CP22/20 Director City Planning Report - Kensington and Kingsford Draft DCP (F2019/01418) RESOLUTION: (Matson/Shurey) that Council endorse: a) the draft DCP for the Kensington and Kingsford Town centres for public exhibition; b) minor editing, formatting and clarification of clauses and diagrams in the draft DCP prior to public exhibition; and c) the draft Kensington and Kingsford DCP as an interim policy guideline, pending its adoption. Councillors Stavrinos and Luxford called for a DIVISION. The DIVISION was taken and the names of the Councillors voting FOR and AGAINST were as follows: …"
6. The draft DCP is on public exhibition for the period of 5 August 2020 - 11 September 2020.

The Applicant's arguments:

1. The Applicant argues that the proposed parking rate provisions of the draft DCP are important, relevant and of high probative value to the determination of a significant issue in the proceedings. They argue that the strategic intent of the Council is relevant to the Court's consideration of the merits of the proposed variation to the parking development control in DCP 2013. Mr McEwen accepts that that the draft DCP is not a mandatory consideration for the Court in determining the development application. However, he argues that the fact that it is not mandatory does not preclude the Court considering the draft DCP, as an indication of the strategic intent of the Council, in undertaking a merit assessment of the development application.
2. Mr McEwen notes that at (c) of the Council resolution (see [10]) the Council resolved to adopt the draft DCP as an interim policy guideline. He submits that consistent with the Court's planning principle in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 (Stockland v Manly) at [91] a policy of the Council may be given weight in the determination of a development application.
3. The Applicant argues that the prejudice to the Respondent if the application to re-open is successful is minimal as the draft DCP is a document that has been produced by them and the issue is confined to on-site car parking.
4. Further, the Applicant argues that there is public interest in legal proceedings being conducted efficiently and expeditiously. The Applicant submits that it is not efficient to deny the Court access to important information that is relevant to the principal contested issue.
5. Finally, the Applicant argues that the interests of justice would be better served by the grant of leave and to do so would promote the just, quick and cheap finalisation of the proceedings.
6. In response to the submissions of Mr Seton, Mr McEwen disagrees that the effect of the draft DCP would be to reduce the development yield of the site. He notes that the draft Randwick Local Environmental Plan 2012 (known as "Planning proposal to amend land zoning, increase building height and floor space ratio controls and introduce new local provisions for the Kensington and Kingsford Town Centres under Randwick LEP 2012") identifies an increase in the height and floor space standards that would apply to the site. Further, he argues in contrast to Mr Seton that the Notice of Motion does not seek to call expert evidence, only to submit the draft DCP as evidence.

The Respondent's arguments:

1. Mr Seton for the Respondent opposes the grant of the Notice of Motion on the following grounds: 1. Whilst it is accepted that the Council had resolved to place the draft DCP on public exhibition, the draft DCP is not a relevant matter in the assessment of the development application pursuant to s 4.15(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. Mr Seton disagrees with Mr McEwen's submission that the evidence proposed to be adduced is relevant or of probative value to the Court's determination of the development application. 3. It is Mr Seton's submission that the weight which the Court could give to the provisions of the draft DCP would be negligible as the draft DCP has not yet completed public exhibition. 4. That there is no certainty as to the final form of the parking controls for student housing that will apply in the final, adopted version, of the draft DCP. Mr Seton submits that following the exhibition of the draft DCP, the Council is obliged to consider any submissions received prior to the adoption of the draft DCP. 5. That it is not in the public interest, or consistent with the just, cheap or quick resolution of the proceedings, to permit the reopening of the proceedings. 6. Mr Seton argues that if the Court was to allow the draft DCP to be adduced, its admission could not be limited only to the draft parking controls. He argues that experts would need to assess the compliance of the proposed development with the remainder of the draft DCP provisions. In his oral submissions Mr Seton identifies that the draft DCP provides amended provisions for communal living space, setbacks, building depth, floor to ceiling heights and lane activation that would be relevant to the proposed development. It is his submission that the draft DCP provision would result in a reduction in built form and yield available on the site. 7. Mr Seton argues that such a reassessment would add cost to the parties, the cost of which he summits is disproportionate to the weight that the Court could give to the provisions of the draft DCP.
2. Mr Seton submits that the Court should not make the orders sought by the Applicant.

Consideration

1. The Notice of Motion is made under r 2.1 and 29.5 of the Uniform Civil Procedure Rules 2005 (UCPR), which relevantly provide: 2.1 Directions and orders The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings. … 29.5 Conduct of trials generally The court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.
2. In exercising its powers to make directions and orders under the UCPR, the Court must seek to give effect to the overriding purpose of the Civil Procedure Act 2005 (CPA) and the UCPR to facilitate the just, quick and cheap resolution of the real issues in the proceedings: CPA ss 56(1), 56(2).
3. In Goodman Fielder Consumer Foods Pty Ltd v GrainCorp Foods Australia Pty Ltd [2020] NSWSC 706 at [43]-[48] Henry J summarises the principles governing an application for leave to reopen proceedings as follows: "43. In Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Clarke JA (with whom Mahoney and Meagher JJA agreed) stated at 478: "The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reason why the evidence was not led in the first place…" 44. Although decided prior to the introduction of the CPA and the UCPR, Urban Transport Authority of New South Wales v Nweiser has been accepted as an appropriate authority to be applied in a case seeking leave to re-open, as has the principle of whether the interests of justice are better served by allowing or rejecting the application: see for example The Movie Network Channels Pty Limited v Optus Vision Pty Limited [2009] NSWSC 132 at [4]; Gaskin v Ollerenshaw [2010] NSWSC 788 at [22]; N M Rural Enterprises Pty Limited v Rimanui Farms Limited [2011] NSWSC 1561 at [26]; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 (Bradshaw) at [26]; Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232 (Spotlight) at [26]. 45. The Court approaches applications for leave to re-open differently depending on the time at which the application to re-open is made. Where an application is made to re-open to adduce new and additional evidence before judgment is delivered, it is relevant to consider whether there was a deliberate or tactical decision made not to call the evidence during the hearing. If such a decision was not made, a key consideration is whether the re-opening of the case would cause embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 at 266-267. 46. The authorities recognise four classes of case in which a court may grant leave to re-open, although the categories are not closed. The recognised categories are (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of the law: Bradshaw at [24]; Spotlight at [25] and [26]. 47. Other factors that are relevant to consider on an application for leave to re-open to adduce further evidence and which bear on the interests of justice, include: (a) the importance, relevance and probative value of the proposed new evidence to the issues in the case; (b) the likely prejudice to the other party if the application is allowed, including the delay to completion of the proceedings and consequential costs; (c) the public interest in the finality of litigation, with the consequent expectation that parties will present their evidence and submissions at one hearing; (d) the public interest and the interest of the parties that the proceedings will be conducted efficiently and expeditiously, thereby minimising delay and expense; (e) whether the occasion for calling the further evidence ought reasonably to have been foreseen; and (f) any delay in making the application. See Australian Securities and Investments Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826 at [18]; Spotlight at [17]; FYD Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 at [32]. 48. Ultimately, the Court has a discretion whether to permit a party to re-open their case which must be exercised having regard to all the circumstances of the case and in a manner consistent with the public interest in a just, quick and cheap resolution of the real issues in the proceedings: Taouk v Louis (No 1) [2014] NSWSC 656 at [11]; The Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682 at [43]; Shaw v KPR Recruitment Australia Pty Ltd (No 2) [2017] NSWSC 707 at [15]."
4. In view of the preceding principles I am satisfied this Notice of Motion falls within the category defined as 'where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available': Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 (Urban Transport v Nweiser) at [46]. Further, there is no assertion or submission by the parties that the omission of the draft DCP was a deliberate or tactical decision made not to call the evidence during the hearing.
5. Having regard to the background of the proceedings and following a consideration of the parties' submissions which I have briefly outlined, I have determined that it is not appropriate to grant the Notice of Motion sought by the Applicant. In reaching this conclusion I have given consideration to the factors listed at [47] of Urban Transport v Nweiser. My reasoning is as follows: 1. The overriding purpose of the CP Act is directed to the resolution of the real issues in the proceedings. I accept that a principal contested issue in the proceedings is the sufficiency of provision of on-site car parking. I am however not persuaded by the submission of Mr McEwen that the Court can give any meaningful weight in the consideration of the merits of the Applicant's requested variation to the parking standards. The Court's planning principle in Stockland v Manly Council at [86]-[88] and [89]-[93] is consistent with this conclusion as: the draft DCP has not yet been the subject of public consultation and has not been applied consistently by the Council. 2. The draft DCP is not a proposed instrument that has been the subject of public consultation that is a matter of consideration under s 4.15(1)(a)(ii) of the EPA Act. The limited probative value of the new evidence weights against the grant of the motion. 3. I accept the submission of Mr Seton that the final form of the draft DCP controls for on-site parking is uncertain. As detailed in the Environmental Planning and Assessment Regulation 2000 at cl 21 the Council has three possible outcomes in relation to the draft DCP following exhibition. The uncertainty of whether the draft controls for on-site parking in the current draft DCP will in fact be the new controls weighs against the grant of the motion. 4. I accept the submission of Mr Seton that if the Notice of Motion was granted it would be artificial for the Court to only direct its attention to the provisions for on-site parking in the draft DCP. 5. As a result of accepting this submission it is foreseeable that the grant of the motion would result in additional costs to the parties in assessment, evidence and preparation of submissions on the application of the draft DCP to the proposed development. I am satisfied that this process would also delay the final determination of the proceedings. When these outcomes are balanced against the probative value of the evidence and its uncertainty, I am satisfied that such an approach is not consistent with the just, quick and cheap disposal of the proceedings.
6. Having considered all the submissions put, on balance I am satisfied that the appropriate course of action to facilitate the quick, just and cheap resolution of the issues in the proceedings is for the Notice of Motion to be dismissed.

Orders

1. The orders of the Court are: 1. The Applicant's Notice of Motion filed on 31 July 2020 is dismissed.

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: 14 August 2020