Big Country Developments Pty Ltd v Lane Cove Council [2012] NSWLEC 1093
ASIC v Rich (2006) 235 ALR 587
[2006] NSWSC 826
Bass v Permanent Trustee Co Ltd 198 CLR 334
[1999] NSWLEC 250
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277
[2006] NSWCA 23
Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Source
Original judgment source is linked above.
Catchwords
Big Country Developments Pty Ltd v Lane Cove Council [2012] NSWLEC 1093
ASIC v Rich (2006) 235 ALR 587[2006] NSWSC 826
Bass v Permanent Trustee Co Ltd 198 CLR 334[1999] NSWLEC 250
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277[2006] NSWCA 23
Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705[2001] NSWCA 305
Mineral Wealth v Gosford City Council (2003) 127 LGERA 74
Judgment (31 paragraphs)
[1]
The applicant submits that it is in the interests of justice that leave be granted
The applicant submits that it is in the interests of justice for the Court to have the "full factual picture" concerning the existence and operation of the absorption trench system, in circumstances where the issues concerning its existence and potential interference by the piers of the deck were not raised by the Council until the hearing. The applicant submits that the plumbing affidavit was obtained promptly following the hearing, and could not have been available with reasonable diligence at the hearing.
The applicant submits that the plumbing affidavit meets the request of Mr Guerrera that a dye test "would show whether the drainage system connected to the pipe near the Gazebo was working or had been damaged", which she submits was a request made for the first time at the hearing. She submits that it will also avoid the need for the making of paragraph (3) of the orders proposed by her concerning the certificate appeal.
The applicant also submits that it is in the public interest that the plumbing affidavit be before the Court, as it provides, in the words of the written submissions by the applicant, a "plumber's certification that the drainage system is operating effectively and that a dye test does not reveal impact caused by the deck's footings".
Further, the applicant submits that the evidence in the plumbing affidavit causes no unfairness to the Council, responds to the request for the dye test, and will not require a further oral hearing, written submissions or further expert evidence. In support of the latter point, the applicant submits that the Council has not made any application for leave to adduce evidence on rebuttal or to cross-examine Mr Stournaras.
[2]
The Council submits that leave should be refused
The Council submits that the evidence in the plumbing affidavit was previously obtainable by reasonable diligence by the applicant, doesn't address the issue raised by the experts concerning the interference with the area of stormwater dispersal, has no probative value and would otherwise be given little weight, and its admission will unnecessarily add to the costs and delay of the final resolution of the appeals.
It submits that the issues that the plumbing affidavit addresses were squarely raised in the first Statement of Facts and Contentions in Reply (filed 13 August 2019), and that it has been open to the applicant to obtain that evidence since the date of filing that document.
The Council submits that even if the plumbing affidavit provides an evidentiary basis for the presence of the absorption pit, it does not actually address the agreed evidence that the location of the deck does not allow the absorption pit system to disperse the stormwater within the appropriate area. The Council also submits that the plumbing affidavit is "ambiguous, inconclusive, seemingly incomplete and does not support its own conclusion", and has no probative value or would be given little weight if properly tested with rebuttal evidence.
Further, the Council submits that the admission of the evidence would result in the need to recall the expert witness stormwater engineers, which would extend the overall time of the hearing of the proceedings and result in the parties incurring additional costs. The Council submits that this would also be contrary to the just, quick and cheap resolution of the issues, required to be considered by the Court pursuant to ss 56 and 58 of the Civil Procedure Act 2005 and also set out as a responsibility of the parties pursuant to the Practice Note - Class 1, 2 and 3 Miscellaneous Appeals.
[3]
The Notices of Motion should be dismissed
Whilst the interests of justice support a grant of leave to re-open the case to allow the applicant to read the affidavit of Mr Stournaras, which goes to the facts in issue in the proceedings, I do not consider that this outweighs the interests of justice in refusing the application, for two reasons.
[4]
The reopening would add costs and delay
Firstly, I accept the Council's position that the reopening of the proceedings to allow the plumbing affidavit to be read will add to the costs and delay of the final resolution of the appeals. Contrary to the submission of the applicant, on the hearing of the Notice of Motion to reopen the Council need not make any formal application to adduce rebuttal evidence or to rely on further expert evidence. On the reopening of the appeal proceedings, should the orders be made, the Council is entitled to a fair hearing and to be afforded procedural fairness. On balance, this is likely to extend to permitting the cross-examination of Mr Stournaras and the furnishing of rebuttal evidence, if sought.
More significantly, any facts established by the plumbing affidavit (or by evidence in rebuttal), would need to be put before the expert witnesses so as to ascertain whether there has been any change to their opinion concerning the issues in the proceedings. This is because, as stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [64]: "The basal principle is that what an expert gives is an opinion based on facts." His Honour further states:
"One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved."
It follows that if there is a change in the evidence on the facts that is relevant to the opinion of the expert, that factual evidence should be put before relevant experts to ensure that their opinion remains or changes in some way. Further evidence of the expert stormwater engineers is particularly required in the circumstances of the present appeals, given that the applicant relies on the plumbing affidavit as a response to the evidence of Mr Guerrera that a dye test and CCTV camera should be used to ascertain whether the absorption trench is in situ and is working as intended. Given that the experts have a paramount duty to "assist the court impartially on matters relevant to the area of expertise of the witness" (Uniform Civil Procedure Rules 2005 Sch 7 cl 2) and the opinions of Mr Krishna and Mr Guerrera are already in evidence, the facts set out in the plumbing affidavit would need to be put before them to allow them to express any change in opinion, and to allow them to assist the Court on whether the tests carried out by Mr Stournaras meet the issues raised by them in their evidence.
Accordingly, allowing the plumbing affidavit to be read on the appeals will result in a requirement for further expert evidence and is likely to require the cross-examination of Mr Stournaras and/or evidence in rebuttal. This will result in the delay in the resolution of the issues in the proceedings, which has already occupied three days of hearing, and increase the costs to the parties. I accept the Council's position that this would be contrary to the "quick and cheap resolution of the real issues in the proceedings", which is required to be considered pursuant to the Court's obligation under s 58 of the Civil Procedure Act 2005 to seek to act in accordance with the dictates of justice when considering an application of this nature.
[5]
The plumbing affidavit is of little probative weight
The second reason that interests of justice are better served by refusing the application is that the evidence in the plumbing affidavit is of little probative value and is not sufficiently material to the stormwater issues raised. I reach this conclusion on a number of bases. The first basis is that the evidence in the plumbing affidavit does not actually meet the description of the CCTV test described in the course of Mr Guerrera's evidence, which was for a camera to be placed so as to show the full subsurface length of the absorption trench (see Tcpt, 27 October 2020, pp 22(42) - 23(4)). Instead, the camera was placed in the nearest drain pit and the evidence is recorded that he "could see rocks in the absorption pit located about a meter from the pit".
The second basis upon which I conclude that the plumbing affidavit is of little probative weight is that it reaches a conclusion that the absorption trench "is located as per the plan that was provided", "appears to be doing its job" and that he could "see no leaks or damage to the stormwater absorption pit", but does not give sufficient detail as to how those conclusions are reached. As described in the evidence of Mr Krishna and Mr Guerrera, the absorption trench system is designed to collect the stormwater run-off, retain it for a period of up to 72 hours, and then disperse it evenly across the rear of the site within an appropriate area. The evidence in the plumbing affidavit does not set out adequate detail for a conclusion that it is "doing its job" in this way.
The third basis upon which I conclude that the plumbing affidavit is of little probative weight and is not sufficiently material to the stormwater issues is that it doesn't address other manners of interference of the deck with the absorption trench system. In particular, it does not deal with the issue of the deck being in the location where the stormwater is dispersed within the site, which is an interference of the deck with the absorption trench system that is identified in the agreed evidence of Mr Krishna and Mr Guerrera.
Similarly, the fourth basis is that it doesn't address the stormwater runoff from the deck itself, which was another discrete issue concerning stormwater management that is raised by the contentions and in the evidence.
On these bases, even if the plumbing affidavit was read and its contents not tested in cross-examination, it is not conclusive of the factual issues it seeks to address or dispositive of the issues on stormwater management.
[6]
Outcome of the Notices of Motion
For the above two reasons, allowing the application would cause undue delay and result in unnecessary costs, for evidence that has little probative value in light of the issues concerning stormwater management on the site. The Notices of Motion should therefore be dismissed.
[7]
The determination of the two appeals
Having considered that the Notices of Motion should be dismissed and the applications to re-open the two appeal proceedings refused, I now proceed to determine the two appeals that are before the Court.
For the reasons that are set out below, I have determined that Mrs Chhabra has failed to establish that the construction of the deck has not caused an adverse impact on the management of stormwater within the site, and has similarly not established that the stormwater run-off from the deck itself does not cause an unacceptable impact. I also find that the orders proposed in order 3 above are based on hypothetical scenarios, are not supported by evidence, and therefore do not lead to certainty that these impacts concerning stormwater will be avoided. Accordingly, I have determined to dismiss the certificate appeal and allow the order appeal only insofar as required to extend the time for compliance.
[8]
Background to the appeals
The evidence of Mr Chhabra, the husband of the applicant, is that the construction of the deck was to improve the safety of the rear yard, and was based on a mistake that it was exempt development.
The construction of the deck came to the attention of the Council in May 2018, and, following an inspection on 1 June 2018, the Council issued a Penalty Infringement Notice to Mrs Chhabra.
On 6 July 2018, Mrs Chhabra lodged a building information certificate application. That application was refused by letter dated 28 February 2019. The certificate appeal is lodged pursuant to s 8.25(1)(a) of the Environmental Planning and Assessment Act 1979 ("EPA Act"), which allows an applicant who is dissatisfied with a council's refusal to issue a building information certificate to appeal to the Court.
On the same day as its refusal of the building information certificate application, the Council issued the development control order. The order was issued pursuant to s 9.34 of the EPA Act, which allows a development control order to be given as a general order in accordance with the table to Part 1 of Sch 5. Item 11 of Part 1 of Sch 5 allows a compliance order, one type of development control order, to be issued to require the owner of the land:
To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards
The "relevant development standards" with which the Council requires compliance are found in Part 2, Div 1 Subdivision 6 of the SEPP ECDC, which specifies the development standards for a deck, which, if met, constitute exempt development for which a planning approval is not required. They are as follows:
2.12 Development standards
The standards specified for that development are that the development must -
(a) (Repealed)
(b) have an area of not more than 25m2, and
(c) not cause the total floor area of all such structures on the lot to be more than -
(i) for a lot larger than 300m2 - 15% of the ground floor area of the dwelling on the lot, or
(ii) for a lot 300m2 or less - 25m2, and
(d) not have an enclosing wall higher than 1.4m, and
(e) be located behind the building line of any road frontage, and
(f) be located at a distance from each lot boundary of at least -
(i) for development carried out in Zone RU1, RU2, RU3, RU4, RU6 or R5 - 5m, or
(ii) for development carried out in any other zone - 900mm, and
(g) (Repealed)
(h) to the extent it is comprised of metal components - be constructed of low reflective, factory pre-coloured materials, and
(i) have a floor height not more than 1m above ground level (existing), and
(j) if it is a roofed structure attached to a dwelling - not extend above the roof gutter line of the dwelling, and
(j1) be no higher than 3m at its highest point above ground level (existing), and
(k) if it is connected to a fascia - be connected in accordance with a professional engineer's specifications, and
(l) be constructed or installed so that any roofwater is disposed of into an existing stormwater drainage system, and
(m) not interfere with the functioning of existing drainage fixtures or flow paths, and
(n) if it is located on bush fire prone land and is less than 5m from a dwelling - be constructed of non-combustible material, and
(o) if it is constructed or installed in a heritage conservation area or a draft heritage conservation area - be located behind the building line of any road frontage.
The deck does not comply with (b), as it has an area greater than 25m2. The Council also says it does not comply with (c) as it has an area that is greater than 15% of the area of the ground floor of the dwelling. The deck does not comply with (i) as it has a floor level greater than 1m above the existing ground level, or with (j1) as it exceeds 3m height at its highest point above the existing ground level. Further, the Council says that it does not comply with (m) as the surface stormwater overflows off the deck floor, which the Council says interferes with the functioning drainage flow paths onto downstream properties.
As a result, the development control order seeks the following:
"What to do:
Order 11
1. Bring the deck into compliance with the development standards of the [SEPP ECDC] Subdivision 6."
The period of compliance is 60 days.
The order appeal is lodged pursuant to s 8.18 of the EPA Act.
[9]
The site and context
The site is legally known as Lot 1 in DP 347049. It has a frontage of 24.995m along Bobbin Head Road, and its rear boundary is of the same length. It's southern and northern side boundaries are 62m. The site area is recorded as 1423m2, but using its dimensions to calculate the site area results in an area of 1569m2. The site is zoned E4 - Environmental Living under the Ku-ring-gai Local Environmental Plan 2015 ("KLEP 2015").
The site has a fall of 8.5m from the street frontage to the rear property boundary. The rear property boundary adjoins the boundary of 25 McRae Place. A rock retaining structure is located along that rear boundary, with the bottom of the structure on the ground level of that portion of land at 25 McRae Place, and the top of the structure on the ground level of that portion of the site.
A two-storey dwelling is situated on the site, constructed following the grant of development consent on 19 October 2006 for the "demolition of existing swimming pool and construction of a new dwelling, attached double garage, swimming pool, gazebo and front fence" (DA 1288/05). The plans the subject of the consent include stormwater drainage plans. The stormwater drainage plans include an absorption trench system comprising stormwater pipes and grates that convey stormwater to two parallel trenches of 20m length, which have a total width of 1.5m. The plans show stormwater pipes that convey stormwater directly to the trenches from a grate on the driveway and from pits along the northern side setback. Additionally, water from the roof of the dwelling drains to pipes that convey water to a rainwater tank with a capacity of 10,000L, with an overflow pipe to the trenches. The absorption trench section shows 200mm of sand back fill above the voids that collect the water, covered by turf/grass. The encasing of the voids is geotextile fabric.
One of the conditions of the development consent (condition 50) requires the creation of a positive covenant and restriction on the use of land in order to protect the stormwater retention and re-use facilities, as follows:
"Prior to the issue of the Occupation Certificate, the applicant must create a Positive Covenant and Restriction on the Use of Land under Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site stormwater retention and re-use facilities on the property. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instruments for protection of retention and re-use facilities" (refer to appendices of Ku-ring-gai Council Water Management DCP 47) and to the satisfaction of Council…"
Consistent with this condition, the title of the site is burdened by both a covenant on title and a restriction on use. The terms of the covenant follow the terms contained in Appendix 14 of Ku-ring-gai Council Water Management DCP 47 ("DCP 47"), and are as follows:
"1. The proprietor of the burdened lot covenants with the Council in respect of any System (as later defined) constructed on the burdened lot to:
(a) permit stormwater to be retained and re-used by the System;
(b) regularly keep the System clean and free from grass clippings, silt, rubbish, debris and the like;
(c) maintain the System to ensure a maximum outflow from the System and a minimum pondage in accordance with plans duly approved by the Principal Certifying Authority;
(d) ensure that the System at all times includes an overflow to direct any excess flow to the downstream drainage System;
(e) maintain, repair and replace the System or any part of it due to deterioration or damage without delay so that it functions in a safe and efficient manner;
(f) comply with the terms of any written notice issued by the Council in respect of the requirements of the Positive Covenant within the time stated in the notice;
(g) permit the Council to enter upon the burdened lot or any part of it with all necessary materials and equipment at all reasonable times and on reasonable notice (but at any time and without notice in the case of an emergency);
• to view the state of repair of the System;
• to ascertain whether or not there has been any breach of the terms of this Positive Covenant;
• to execute works on the burdened lot for compliance with the requirements of this Positive Covenant;
(h) indemnify and keep indemnified the Council from and against all claims, demands, actions, suits, causes of action, sums of money, compensation, damages, costs and expenses which the Council or any other person may suffer as a result of any malfunction or non-operation of the System or y failure of the proprietor to comply with the terms of the Positive Covenant."
The word "system" is defined as follows:
"In this Positive Covenant unless inconsistent with the context,
"System" means in relation the burdened lot the stormwater retention and re-use tank or other device constructed or to be constructed on the burdened lot in accordance with the requirements of the Council including all ancillary gutters, leaf gutter guards, downpipes, pipes, drains, filter, pump, delivery plumbing, trench barriers, walls, earth banks, kerbs, pits, grates, tanks, basins and other surfaces designed to retain, re-use and control stormwater located on any part of the burdened lot."
This definition reflects what is contained in the terms in Appendix 14 of DCP 47.
The applicant submits that this definition means that the obligations with respect to the "system" do not extend to the absorption trench, as an absorption trench is not specifically included in the definition of "system". I cannot accept that submission. The absorption trench system, which retains stormwater for a period of up to 72hours and then re-uses it by dispersing it across the length of the trench system, is clearly an "other device constructed", and comprises "pipes", "trench barriers" and "other surfaces designed to retain, re-use and control stormwater", and therefore falls within the definition of "system".
The restriction on the use of the land uses the same word, "system", and is in the following terms:
"Terms of Restriction on the Use of Land referred to in the Plan
Unless inconsistent with the context words used herein have the same meaning as those ascribed to them in the Positive Covenant referred to in the Plan:
1. The Proprietor of the Burdened Lot covenants with the Council not to:
(a) allow any obstruction or interference of any kind to be erected, placed, created or performed so as to inhibit the flow of water to and from the System;
(b) except in accordance with the written approval of the Council, allow any building, erection or structure to be constructed or allowed to remain constructed or placed on the System;
(c) carry out or allow to be carried out any change of land profile or earthworks on the System;
(d) carry out or allow to be carried out any alterations to the System including surface levels, controlled outflows, grates, pipes, filter pump, delivery plumbing or any other materials or elements thereof outside those normally required for the formation, maintenance and proper function of the System."
[10]
The site inspection
The hearing commenced with an inspection of the site and the deck. The number of those accompanying me was restricted as a result of the COVID-19 Pandemic Arrangements Policy.
From the deck, view lines exist to the private open space of the property to the rear, at 25 McRae Place. However, those view lines are significantly filtered by vegetation. Standing along the south-western edge of the deck and looking to the south east, view lines exist to the elevated pool terrace, bedroom window and bedroom terrace of the adjoining neighbour at 216 Bobbin Head Road. The floor levels of these affected areas is higher than the floor level of the deck. The site inspection included inspecting the deck from the area of that elevated pool terrace and bedroom terrace.
The site inspection also included an inspection of the rear private open space of 25 McRae Place, the pathway along the side of the house where there is an overland flow path, the retaining wall at the rear boundary of the site, and the area proximate to where 25 McRae Place adjoins the rear boundary of the site. The site inspection occurred after some rainfall. A significant sub-surface flow was observed coming from within one of the gaps between the rocks in the retaining wall, appearing to flow from the site to 25 McRae Place. The flow is clearly shown in Ex 4. The water then flowed across the surface of the land, over a solid rock wall within the private open space (also shown in Ex 4), and to an overland flow path that conveys the stormwater to McRae Place.
Mr Stikkelorum, who is the owner of 25 McRae Place, gave evidence at the site inspection that the construction of the deck has increased the degree of flooding on his property which is caused from water flowing from 218 Bobbin Head Road. His evidence is that the flooding occurs during rain events when it rains for more than 12 hours, and that the flow of water observed at the site at the time of the site inspection "occurs during rain events" after that 12 hour period. His evidence is that flooding used to occur before deck was constructed, but it is now 90% worse. His evidence is that in increased rain, the water floods over the hard surfaces in his rear yard and enters the subfloor, which causes damp and damage in the subfloor of his dwelling house.
[11]
The powers of the Court on appeal
To hear and dispose of the appeals, s 39(2) of the Land and Environment Court Act 1979 ("LEC Act"), provides that the Court has "all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal." Accordingly, in considering both the certificate appeal and the order appeal, the Court has all the functions and discretions of the Council in determining the building information certificate application and in determining whether the order should be issued (and therefore whether it should remain in place).
[12]
The certificate appeal
Section 6.25 of the EPA Act sets out the circumstances in which a building information certificate can be issued, and the effect of issuing such a certificate. It provides:
(1) A building information certificate is to be issued by a council only if it appears that -
(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 -
(i) to order the building to be repaired, demolished, altered, added to or rebuilt, or
(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or
(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or
(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.
(2) A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4).
(3) A building information certificate operates to prevent the council -
(a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and
(b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,
in relation to matters existing or occurring before the date of issue of the certificate.
(4) A building information certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate -
(a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and
(b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,
in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear.
(5) However, a building information certificate does not operate to prevent a council from making a development control order that is a fire safety order or a building product rectification order (within the meaning of the Building Products (Safety) Act 2017).
(6) An order or proceeding that is made or taken in contravention of this section is of no effect.
In addition to having the functions and discretions of the Council in determining the building information certificate application, s 8.25(3) of the EPA Act sets out the broad discretionary powers of the Court on appeal as follows:
(3) On hearing the appeal, the Court may do any one or more of the following:
(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,
(b) revoke, alter or confirm a notice to supply information,
(c) make any other order that it considers appropriate.
[13]
The order appeal
The relevant power that the Council had in respect of the matter the subject of the order appeal is the power to issue the order pursuant to s 9.34(1) of the EPA Act, which provides as follows:
9.34 Orders that may be given (cf previous s 121B)
(1) The development control orders that may be given under this Act are as follows -
(a) general orders in accordance with the table to Part 1 of Schedule 5,
In addition, s 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order. Those powers are as follows:
(4) On hearing an appeal, the Court may:
(a) revoke the development control order, or
(b) modify the development control order, or
(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or
(d) find that the development control order is sufficiently complied with, or
(e) make such order with respect to compliance with the development control order as the Court thinks fit, or
(f) make such other order with respect to the development control order as the Court thinks fit.
Even if the statutory requirements in Part 1 of Schedule 5 for the issue of an order are met, the use of the word "may" in both s 9.34(1) and s 8.18(4) confers on the Court the discretion to consider whether to issue an order (s 9.34(1)) and to consider the appropriate orders on the appeal (s 8.18(4)).
[14]
The notional development application
In considering a building information certificate appeal (formerly known as a building certificate), the Court has variously referred to its consideration of the application as a "notional or hypothetical development application". This concept was first introduced in the decision of Bignold J in Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 ("Ireland") at [31]-[32] (emphasis added):
"31. Having regard to the whole of the evidence (including the agreed facts stated in my earlier judgment) I am of the opinion that had the Applicants sought the relevant development consent and building approval for the construction of the subject building (instead of erecting the building without the requisite approvals or with disregard to the terms of any approvals) those approvals would probably have been granted. That finding is applicable to the period immediately prior to the commencement of the erection in December 1997.
32. I would make the same finding if the hypothetical question were posed whether the requisite consent would have been granted had the subject building been built at the present time."
His Honour then describes this approach as a "notional or hypothetical development application" in Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 ("Taipan") at [60]-[61]:
"60. In my judgment, the approach to the exercise of the statutory discretion conferred by s 149F(3) [now s 8.25(3)] of the Court determining a notional or hypothetical development application for consent to rebuild the old boatshed so as to bring into existence the rebuilt boatshed, is an appropriate exercise for the Court to undertake in the discharge of its statutory discretion under s 149F(3).
61. This is particularly so in the present case because unless the Applicant can establish that development consent should be granted to the notional development application for the rebuilding of the boatshed, it could not reasonably expect the Court to exercise in its favour the statutory discretion conferred by s 149F(3) [now s 8.25(3)]..."
This approach has been consistently used by Commissioners of the Court: see Chappelow v Sutherland Shire Council [2010] NSWLEC 1294; Administration and Marketing Solutions Pty Ltd v Lane Cove Council; Big Country Developments Pty Ltd v Lane Cove Council [2012] NSWLEC 1093; Sud v Sutherland Shire Council [2013] NSWLEC 1177; Poche v Manly Council [2014] NSWLEC 1274; Abou-Anton v City of Ryde Council [2018] NSWLEC 1334; and Hennock v Queanbeyan-Palerang Regional Council [2020] NSWLEC 1070.
However, in Mineral Wealth v Gosford City Council (2003) 127 LGERA 74; [2003] NSWLEC 153, on an appeal pursuant to s 56A of the LEC Act, Pain J considered Ireland and Taipan and found as follows:
"Those cases do not establish a general principle concerning the approach to be taken to the issue of a building certificate. The approach taken in both cases, namely consideration of a notional development application as part of the assessment in relation to whether a building certificate should be issued, reflects the particular circumstances presented to the Court" (at [43]).
In Gosling v Penrith City Council [2016] NSWLEC 1288, Commissioner Dixon (as the Senior Commissioner then was) applied the decision of Mineral Wealth v Gosford City Council to exclude the operation of a clause in development control plan. Specifically, she stated (at [43]):
"There is no s79C assessment in this case. Accordingly, the DCP Control referred to by the parties is of no significant weight in my determination of this application apart from perhaps being a reference point in the factual background provided to the Court."
The applicant submits that these two decisions of the Court make it clear that the Court would be in error, in the present proceedings, to undertake an assessment of the deck as a hypothetical or notional development application and to apply the provisions of the applicable development control plan using an assessment under s 4.15(1) of the EPA Act. The applicant submits that the focus of the consideration is confined to the structural adequacy of the structure.
The power of the Court on appeal pursuant to s 8.25(3) confers a broad discretion. Contrary to the applicant's position, that discretion is not limited to or bound by an inquiry on structural adequacy. Instead, the consideration of a "notional or hypothetical development application" is a useful framework in which to consider matters that are relevant to the exercise of that discretion. In Ireland and Taipan that is the approach that Bignold J took to the exercise of the statutory discretion (see [60]-[61] of Taipan, quoted above at [70]). Although it is not a mandatory approach (Mineral Wealth v Gosford City Council at [43]), it is nevertheless helpful.
In particular, the concept of a notional or hypothetical development application is a helpful framework in which the impacts of the structure can be considered. In my view, the impacts of the deck the subject of the present appeals are directly relevant to whether the Court ought to exercise its discretion to make directions for the Council to issue a building information certificate. In that context, a development control plan is a useful policy with which the impacts of the deck can be assessed.
I accept the applicant's position that the consideration of a notional or hypothetical development application does not extend so far as requiring an assessment pursuant to a strict application of s 4.15(1) of the EPA Act. Such an assessment is not supported by the text of Part 6 Div 6.7 of the EPA Act. In particular, ss 6.24 and 6.25 impose a duty on the Council to issue a building information certificate but only if it appears that "there is no matter discernible… that would entitle the council" to take certain action with respect to the building. Pursuant to s 6.26, reasons must accompany the refusal of a building information certificate and the reasons "must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building information certificate" (s 6.26(5)). Nothing in Part 6 Div 6.7, or in s 8.25(3), requires that a full assessment be carried out pursuant to s 4.15(1). This is supported by the decision in Mineral Wealth v Gosford City Council, in which Pain J found that there was no error by the Commissioner not carrying out such an assessment. It is similarly stated in Gosling v Penrith City Council, in which the Commissioner said "There is no s 79C [now 4.15] assessment in this case."
Nevertheless, neither of these two decisions dispenses with the need for an assessment of the impacts of the structure the subject of the building information certificate application in circumstances where such an assessment is relevant, in the circumstances of the case, to the exercise of the Court's discretion under s 8.25(3). It is that assessment which the Court has described as the "hypothetical or notional development application". The planning controls and any development standards are relevant to that assessment, but are not a mandatory consideration.
As such, whilst the Ku-ring-gai Development Control Plan 2012 ("KDCP 2012") is not a mandatory consideration in determining the application for a building information certificate, it is a useful framework in which to assess the impacts of the deck and it is relevant for that purpose. The purpose of a development control plan "is to provide guidance… to the persons proposing to carry out development… and to the consent authority" on matters including "achieving the objectives of land zones" (s 3.42(1) of the EPA Act). Such guidance is evidently relevant to assessing impacts.
[15]
The evidence on the impacts of the deck
I turn now, therefore, to considering the impacts of the deck. Although the Council's contentions were raised in the form of a reply, and were not framed within categories of impacts, the contentions in the Amended Statement of Facts and Contentions in Reply nevertheless identify a number of impacts as reasons for which the building information certificate should be refused. The evidence concerning those impacts is summarised below.
Expert evidence was given in the following joint reports:
Two joint expert reports on ecology (Ex C and D) by Mr John Whyte, an ecological assessment officer employed by the Council, and Mr Dominic Fanning, an ecological consultant engaged by Mrs Chhabra.
A joint expert report on the arboricultural impact of the deck (Ex E) by Ms Robyn Askew, the landscape assessment officer employed by the Council, and Mr Leigh Brennan, a consultant arborist engaged by Mrs Chhabra.
A joint expert report on the landscape plan (Ex F) by Ms Askew and Ms Caroline Gallagher, a landscape architect engaged by Mrs Chhabra.
A joint expert report on stormwater disposal and structural adequacy (Ex G) by Mr Ross Guerrera, the senior development engineer employed by the Council, and Mr Daniel Krishna, a structural engineer engaged by Mrs Chhabra.
A joint expert report on bushfire risk (Ex H) by Mr Whyte and Mr Matthew Noone, a bushfire consultant engaged by Mrs Chhabra.
A joint expert report on the town planning issues (Ex J) by Mr Phillip Johnston, the Council's executive assessment officer, and Mr Andrew Minto, a consultant town planner engaged by Mrs Chhabra.
As a result of various agreements reached in the joint reports, a number of the contentions raised by the Council were resolved, the removal of which is reflected in the Amended Statement of Facts and Contentions in Reply (filed after the joint reports were prepared). The following issues are those that remain in contention in the Amended Statement of Facts and Contentions in Reply (Ex 1) and/or at the hearing.
[16]
Ecology and biodiversity
The impact of the deck on ecology and biodiversity is raised in contentions (2)(b)(iv), (2A) and (9).
Mr Whyte and Mr Fanning agree that, based on the ecological impact assessment report prepared by Mr Fanning, the contentions relating to ecological impact have been adequately resolved. Further, whilst the Amended Statement of Facts and Contentions in Reply raises a contention with respect to the ecological impact of an easement for stormwater drainage, they agree that there is no such proposal. Their evidence on the disposal of stormwater is:
"…the proposal to dispose of stormwater from the deck using a sub-surface dispersion pit or pits beneath the existing lawn is appropriate and satisfactory from an ecological perspective".
I note that, as a result of the leave granted at the commencement of the hearing, the proposal no longer includes the disposal of stormwater from the deck using a sub-surface dispersion pit. Instead the intention is to drain water through the water percolating through a proposed timber slat flooring. Nevertheless, no ecological or biodiversity issue is raised with respect to this change to the proposed stormwater management.
[17]
Bushfire
The bushfire risk was raised in contentions (2)(a)(ii) and (2)(b)(iii). However, Mr Whyte and Mr Noone agree that there is no risk associated with the deck if the fibre cement is replaced with hardwood timber slats and the pine joists are protected with a minimum 6mm thick fibre cement sheet, a profiled metal sheet or any other non-combustible material.
The Bushfire Risk Assessment Certification indicates that the site "is to be managed as an inner asset protection zone for perpetuity". The requirements of the Planning for Bushfire Protection 2019, which is a document by the NSW Rural Fire Service that contains specifications for building on land identified as bush fire prone, are that shrubs in an inner protection area must be managed so as to "create large discontinuities or gaps in the vegetation to slow down or break the progress of fire towards buildings" (A4.1.1, Ex 6). As such, based on this evidence, the privacy screen planting proposed along the southern boundary would not comply with the requirement to maintain the site as an inner protection area, and breaks in the line of plantings would need to be provided.
[18]
Town planning
A number of town planning issues were raised in the contentions. They are found at contention (2), and concern privacy, the built-upon area of the site, and the exceedance of the minimum open space requirements of the KDCP 2012.
Mr Minto and Mr Johnston agree that the main visual privacy impact is to the resident at 216 Bobbin Head Road. They also agree that would be resolved by the construction of a privacy screen along the southern side of the deck. However, Mr Johnston's evidence is that the screen would then create visual bulk given the elevation of the deck and the proximity to the dividing fence. Mr Johnston considers that this contravenes control (2)(i) of Part 4A.1 of the KDCP 2012, which provides:
"2 The appearance of the dwelling is to maintain the local visual character by considering the following elements:
i) Visibility of on-site development when viewed from the street, public reserves and adjacent properties."
One of the objectives of this control is to "ensure the development is sensitive to the landscape setting, environmental conditions and established character of the street and locality".
Mr Minto's evidence is instead that the privacy screen is not an uncommon feature in the locality.
Mr Johnston's evidence is also that the deck is inappropriate in size as it significantly contributes to the excess of built-upon area to landscape ratio, in contravention of the provisions in Part 4A.3 of the KDCP 2012. He calculates that the maximum built-upon area pursuant to those provisions is 612m2 or 39%. The site exceeds that, with 51.3% built upon area including the deck. Indeed, the site exceeded the built upon area prior to the construction of the deck, with a built upon area of around 44%. In such circumstances, the control at Part 4A.3 (2)(ii) requires that for alterations and additions on sites where the existing built upon area exceeds the control, "the maximum BUA is the existing BUA, however, a reduction in the BUA is desirable". The relevant objectives of this control include the following:
"3 To provide sufficient soft landscaped area for the planting and retention of large canopy trees.
4 To provide an appropriate balance between the natural and built elements of the site.
…
6 To minimise impervious surfaces generating storm water runoff."
Mr Johnston's evidence is that the deck does not meet these objectives.
Further, Mr Johnston's evidence is that the deck is not needed as the site already exceeds the minimum open space requirements of Part 4C.4 of the KDCP 2012, which require at least "one area of useable private open space which has a minimum depth of 5m and a minimum area of 50m2."
Mr Johnston also raises a number of other controls with which he says the deck does not comply. This includes Control 1 in Part 21.1 of the KDCP 2012, which requires that:
"Development must be accommodated within the natural slope of the land. Level changes across the site are to be primarily resolved within the building footprint. This may be achieved by:
i) stepping buildings down a site; and
ii) locating the finished ground floor level as close to existing ground level as practicable."
He also says that the deck contravenes Control 2 in Part 23.9, which provides:
"2 For low density residential development first floor decks, balconies and roof top terraces are not permitted where they unreasonably overlook or would directly overlook principal living spaces or private open space and the impact cannot be adequately mitigated."
Mr Minto's evidence is that a merit based assessment of these matters results in the deck meeting the the objectives of these sections, subject to the resolution of the issue of stormwater disposal from the additional built upon area.
[19]
Structural adequacy
The structural adequacy of the deck is raised as an issue by the Council in the context of a contention that the deck was not constructed with a construction certificate (contention 3).
The agreed evidence of Mr Krishna and Mr Guerrera is that "additional diagonal bracing to the substructure would alleviate any concerns with embedment depths and long term movement. This should be designed by a practicing Structural Engineer" (Ex G p 4).
This is supported by the report by CAM Consulting that is annexed to the joint report, in which the author observed that there was no cross bracing in the frame and that:
"It is our opinion that the member sizing is adequate, and the deck remains structurally adequate. We estimate that saturated artificial grass loads would not exceed 0.25kPa. As noted in the previous engineers report, a live load allowance of 2kPa has been provided, which we would expect should be sufficient to support a saturated deck and an adequate amount of people.
Although there are no signs of fatigue or movement, we would recommend the addition of diagonal bracing, particularly at the posts that seem to have been bolted to the existing rock.
As per the previous Engineers report, they did not observe the depth of embedment of the piers, therefore the need for bracing becomes of greater importance."
In oral evidence, Mr Krishna and Mr Guerrera agreed that that the installation of the additional diagonal reinforcement would alleviate any structural concerns. However, Mr Guerrera raised questions regarding the long term impact on the structural stability of the deck if the footings are not in competent bedrock, as a result of the existence of an absorption trench. This is further outlined below.
[20]
Stormwater management
Issues with respect to the management of stormwater are raised by the Council indirectly in contentions (1)(f) and 9A, and directly in contention 2(b)(vii).
[21]
The planning controls
Part 24 of the KDCP 2012 concerns water management. The first control within 24A.3 is that:
"The development must not be located so as to impede, divert or increase the rate or concentration of stormwater flow across a boundary onto adjoining private property (eg. by placing a solid wall along a boundary)."
Part 24B concerns stormwater discharge. Three of its objectives are as follows:
"3 To minimise the adverse impact of stormwater runoff on neighbouring properties.
4 To ensure adverse impacts are not increased beyond what was present prior to the development.
5 To minimise the adverse impact of stormwater runoff on the natural environment."
Part 24B.5 concerns the provisions for stormwater disposal that apply to the site (as a Location D property, as defined in Part 24A.2). It provides, firstly, that evidence must be provided that a legal inter-allotment drainage easement cannot be obtained, and then requires the following with respect to discharge of water within the site:
"Discharge of stormwater within the site
On-site discharge of concentrated stormwater flows by infiltration/absorption into soils on the site is considered to be inadequate in most areas of Ku-ring-gai. This is because the majority of soils are clay-based have a low to very low infiltration rate or shallow bedrock.
9 Discharge of stormwater within the site may involve:
i) One or more dispersal trenches constructed at the point of disposal designed to disperse stormwater across a site in a sheet flow to provide an opportunity for water take-up by vegetation downstream from the trench;
ii) A series of infiltration trenches constructed on sandy soils where bedrock is not close to the surface, and;
iii) other methods designed to ensure the infiltration/absorption of water into the site such as rain gardens, soaks or swales.
10 Discharge of stormwater within the site will only be permitted where all of the following conditions are satisfied (applies to Development Type 1, 2 or 3 only).
i) It is demonstrated that direct drainage by gravity to the street drainage system, a public drainage system or recognised natural watercourse within the property or to a drainage easement is not possible.
ii) It is demonstrated that no drainage easement either exists over adjoining properties or is readily available through negotiation.
iii) It is demonstrated that all other alternatives have been comprehensively examined and demonstrated to be inappropriate or ineffective.
…
v) It is demonstrated that, for alterations and additions (Development Types 1 & 2), the post-development built-upon area draining to:
- a dispersal trench system will not exceed the greater of
- 30% of the built-upon area; or
- the pre-developed built-upon area;
- an infiltration trench system will not exceed the greater of
- 35% of the built-upon area; or
- the pre-developed built-upon area.
vi) Where an infiltration trench system is proposed, its feasibility must be demonstrated in a report based on a scientific test by a qualified geotechnical engineer that the soils and bedrock are appropriate for the employment of such a system.
vii) The design and construction of the system are undertaken in accordance with the relevant Technical Guidelines for Water Management Devices."
[22]
The evidence on stormwater management
The agreed evidence of Mr Krishna and Mr Guerrera in the joint report is that the first requirement under the KDCP 2012 is for a drainage easement to be sought over the downstream property. If one cannot be obtained, their agreed evidence in the joint report is (Ex 5 p 3):
"The proposed deck is located in the area on site which is available for on-site stormwater disposal and as the deck is located just 3.44m from the rear north-western boundary, there is no scope for dispersing runoff from this and other areas within 5 metre buffer area in the backyard of the site. The location of any on-site absorption trench would also not be compliant with the minimum 3 metre setback from footings of any structure and will be positioned within the canopy of existing tees [sic] protection zones.
The as-built deck is to be reduced back to allow for the existing and any upgraded on-site absorption trenches to capture all impervious areas (i.e. roof areas, paving driveway, deck areas) on site. The post-developed impervious area draining to the absorption trenches shall not exceed 30% of the total site area."
As I outlined above in relation to the Notices of Motion, this agreed evidence recognises that the deck is in the area where water is dispersed across the length of the absorption trench, in a dispersal trench system that forms part of the on-site stormwater disposal. The evidence makes it clear that, as the deck is located only 3.44m from the boundary, there is no capacity to dispose runoff from the site within that area (and that a 5m buffer for the dispersal of water is required). The evidence of both experts in the joint report is clearly that the deck and all impervious areas should be drained to the existing and any upgraded absorption trenches for on-site disposal.
With respect to the distance of the structure from an absorption trench, Mr Guerrera's oral evidence is that the saturation of the soil in the area where the dispersal occurs can compromise the long term structural stability of the structure. Mr Krishna did not contradict this evidence, but also gave evidence that there is no issue where the absorption trench and area of dispersal is located downslope from the structure. In the present circumstances, the absorption trench and dispersal area are located underneath the deck, and not downstream from it. In dealing with the question of whether the piers of the deck can withstand the flows of the absorption trench, Mr Guerrera's evidence was that confirmation was needed from the structural engineer who designed the footings to confirm that it is constructed in competent bedrock. Mr Krishna's evidence is that it "appears to be sitting on the rock foundation" (Tcpt, 27 October 2020, p 44(46)).
Further, the oral evidence of Mr Guerrera is that there is a high probability that the absorption trench system has been undermined by the piers of the deck. His evidence is that this could be one of the causes of the flow of water observed on the site inspection.
Figure 3 shows the construction certificate plans for the absorption trench system, and Figure 4 shows the location of the piers.
Both Mr Guerrera and Mr Krishna agreed that there were no visible signs on the site that the absorption trench has been installed in accordance with the construction certificate. However, Mr Guerrera's evidence is that he relies on the certification by the hydraulic engineer in 2006, which states that the stormwater system is compliant. Relying on that certification, Mr Guerrera assumes that the system exists as approved. His evidence is that, on the assumption that it is there, the deck would have infiltrated the trench system by its piers and footings. He gave evidence that this opinion is supported by the flow of water that was observed by the legal representatives at the neighbouring property at the site inspection, which he describes as "gushing" of water, and as being a good sign that the absorption trench is not working. His evidence with respect to the flow of water includes the following (at Tcpt, 27 October 2020, pp 18(46)-19(4)):
"WITNESS GUERRERA: Okay then look I, listening to Mr Krishna's evidence there. Yes, the topography of the site does go from the front to the rear. It doesn't have a cross-fall. It's very unlikely that 216 will be contributing, in my opinion. You know that property has their own stormwater disposal system in place. The videos that I did see yesterday, it did show runoff gushing. It wasn't trickling, it was gushing out of the retaining walls. There was no signs of the flow actually slowing down and it's probably a good sign that the absorption system weren't properly functioning. Now a contributing factor to that is it's the amount of built-upon area that the system can't cope with."
Mr Krishna agrees that the level of flow observed at the site inspection would not be seen if the absorption trench system was working properly (at Tcpt, 27 October 2020, p 15(44)):
"IRELAND: So sorry is it your view that if the absorption trench was working perfectly, you wouldn't see those flows?
WITNESS KRISHNA: That's correct yes."
Mr Krishna and Mr Guerrera agree that the rainfall that had occurred on the site up to the time of the site inspection was a "less than one in five year" rainfall event, and that the absorption trench was required to accommodate a one in 20 year rain event.
Mr Guerrera also gave evidence that a dye test could be used to determine whether the water going to the neighbour's property is coming from the site, and a CCTV camera could be used along the full subsurface length of the absorption trench to ascertain whether there has been interference of the piers with the trench system.
However, Mr Krishna also gave oral evidence that the flow observed at the site inspection is "more than likely" to be contributed to by sub-surface flows from other properties, given the low lying point at which the flow was observed. Mr Guerrera did not agree with this evidence. He opines that the topography of the site doesn't allow water to flow from 216 to 218 Bobbin Head Road, and that driveways in the Ku-ring-gai Council area are generally built above the level of the road so that stormwater does not run off the road onto the property.
Mr Guerrera instead opined that it was uncontrolled flow, which is in contrast to the controlled flow that would be effected by the absorption trench system, as the absorption trench collects the run-off, retains it for a period of up to 72 hours, and then disperses it evenly across the rear of the site.
Mr Krishna also gave evidence that he saw no evidence that the piers had pierced the absorption trench, which he considers would have been evident by water coming to the surface around the piers. He gave evidence that he had inspected the area where the absorption trench is located, and considered that the absorption trench system is working as it should.
With respect to the replacement of flooring of the deck with timber slats, Mr Krishna gave oral evidence that replacing the deck with timber slats would allow the water to fall on the rock surface below in the same way it would if the deck was not there. His evidence is:
"The, if you look the decking, there's rock below. If that's what you're implying, there's rock below. So it is already a hard surface area. Whether you have a decking or if you don't have a deck, decking. The rock is classified as a hard surface area." (Tcpt, 27 October 2020, p 31(21-26).
Mr Guerrera's evidence is instead that the deck is a hard surface area but a permeability factor of around 50% should be applied to a deck made of timber slats, and that the water concentrates on the wooden slats. As such, he considered that a rainwater tank should be installed (Tcpt, 27 October 2020, p 30(22)) or 30% of the surface area should be drained to the absorption trench (Tcpt, 27 October 2020, p 52(19)).
[23]
A summary of the parties' positions
Given the length of the parties' submissions, I do not intend to outline each submission made by each party. In reaching the conclusions set out further below, I have considered all of the submissions made at the hearing and all of the evidence before the Court. Nevertheless, for completeness, some summary of the parties' respective positions ought be given.
[24]
The applicant's position that directions should be made
Mrs Chhabra's position is that the deck is structurally adequate and that there is no evidence of any adverse impacts. In light of this, and on the basis that the deck was installed as an honest mistake concerning the requirements of the SEPP ECDC, Mrs Chhabra's position is that the building information certificate ought to be issued on the conditions in her proposed orders.
Mr Ireland submits, on behalf of the applicant, that the technical issue of key concern for the Court in determining the building information certificate application is structural adequacy. He submits that, given the experts agree that the deck is structurally sound and that this will be improved by the installation of diagonal bracing, this is a sufficient basis upon which the building information certificate can be directed to be issued.
The applicant submits that it would be an error to apply the KDCP 2012 to require compliance with the built upon area controls, and if applied, the provisions should be applied flexibly to allow the slight variation sought. The applicant relies on the approval of the dwelling at 216 Bobbin Head Road, which was permitted a built upon area commensurate with that which is now in existence on the site with the deck in situ. The applicant submits that I ought to accept the evidence of Mr Minto that the addition of the built upon area is acceptable.
With respect to privacy, the applicant submits that this is resolved by the privacy screen, and that the Court can accept Mr Minto's evidence that the privacy screen will resolve this issue and will not result in unacceptable bulk.
The applicant submits that the stormwater that falls onto the deck will be adequately dispersed through timber slats, which will allow the water to percolate to the ground in the same way it would without a deck there.
Mr Ireland also submits, on behalf of Mrs Chhabra, that it has not been demonstrated by evidence that the flow of water observed on the neighbouring site is not as a result of natural flows, or that anything involving the deck has caused an increase in the flow. As such, the applicant's position is that there is no evidence that the piers and footings of the deck have had any adverse impact on the absorption trench system on the site, if the trench system is there. She submits that this is supported by the evidence of both Mr Krishna and Mr Guerrera, who said that there were no signs around the piers of damage to the absorption trench. Further, the applicant submits that there is no evidence that the absorption trench is even in existence, in which case there can be no interference by the deck with such a system.
Mr Ireland submits, on behalf of Mrs Chhabra, that the evidence of Mr Stikkelorum should be given little weight because it was not given on oath. Mr Ireland also asserts that Mr Stikkelorum fabricated his evidence regarding the increase of flow in stormwater since the construction of the deck, in the same way that he (according to Mr Ireland) fabricated his evidence of hearing high heels on the deck. Mr Ireland says that Mr Stikkelorum has a history of complaining about the site, and has consorted with the owner of 216 Bobbin Head Road against the applicant.
In circumstances where Mrs Chhabra submits that there is no evidence that the deck has caused any increase in the flow of stormwater to the neighbouring site, her position is that any resolution of the issues with respect to the absorption trench is extraneous to what needs to be established for the purposes of issuing a building information certificate. The applicant has proposed order 3, which is set out above at [5] and involves the carrying out of inspections and/or works with respect to the stormwater management system. She submits that this will resolve any issues with stormwater management on the site. The result, on the applicant's case, is that if this is not carried out then a building information certificate will not be issued and the terms of the order as originally issued will take effect.
Mrs Chhabra also submits that the positive covenant and the restriction on use of land, which concern property law, are not relevant to planning issues raised in the context of an application for a building information certificate.
[25]
The Council's position
The Council's position is that the applicant comes before the Court seeking directions for the issue of a building information certificate, and has the burden to persuade the Court that those directions ought to be made. The Council submits that Mrs Chhabra has failed in doing so, by failing to establish that the deck can remain and that it is structurally adequate.
The Council says that the applicant has failed to establish that the absorption trench system that is required by the consent for the dwelling house is in place and is sufficient, such that the impermeable area added by the deck does not create an impact on the management of stormwater. The Council submits that the deck increases the hard surfaces on the site without a drainage system, contrary to the provisions of the KDCP 2012.
Further, the Council submits that, based on the evidence, the Court cannot be satisfied that the deck does not have an adverse impact on stormwater management. That evidence includes evidence of the location of the piers, the location of the trench system, the observations of Mr Stikkelorum, the observations of the flow of water onto the property at 25 McRae Place and the expert opinion of Mr Guerrera that the flow of water is probably caused by the interference of the piers with the absorption trench system. The Council submits that the evidence of Mr Guerrera should be preferred to that of Mr Krishna, the latter who gave evidence that the flow observed at the site inspection is contributed to by flows from other properties, without having expertise as a geologist or hydrogeologist and without the levels of the land supporting that evidence.
The Council therefore submits that this also means that there are serious questions about the long term structural stability of the piers in and around the trench system, as the trench system is not downslope from the deck, there is insufficient distance between the trench system and the piers, and there is insufficient distance between the deck and the rear boundary to allow for infiltration into the soil before the boundary of the adjoining property at 25 McRae Place. The Council submits that in circumstances where it is beyond dispute that the piers are in the location of the absorption trench, and are downslope from the trench, there are serious questions about the long term structural impact of the piers, and the deck ought not remain.
The Council submits that it is not appropriate for the Court to make orders or directions in the terms of order (3) sought by the applicant, in circumstances where to do so would offend the principle of finality. The Council submits that any proposed condition on the issue of a building information certificate requires certainty and finality, consistent with the principles in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 and Young and v Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 191.
Further, the Council's position is that the deck creates overlooking of adjacent properties, and results in a built open area that is greater than maximum built upon area control that applies to the site pursuant to the KDCP 2012. It considers that the privacy screen does not comply with the controls in the KDCP 2012 at Part 21.1 of the KDCP 2012, in which the first control requires that the development be accommodated within the natural slope of the land and the finished ground floor should be "as close to existing ground level as practicable." With respect to the approved built upon area at 216 Bobbin Head Road, the Council points out that it was approved prior to the land being zoned E4 - Environmental Living and different controls applied at that time.
[26]
Consideration
It is Mrs Chhabra's application for a building information certificate and her application to modify or revoke the order. Accordingly, I accept the Council's submission that she bears the burden of persuading the Court that a building information certificate should be issued and the order modified. Upon the raising of any issues of impact by the Council, she then has the burden of establishing that any identified impacts are not unacceptable. I consider that she has failed to discharge that burden, for the following reasons.
Firstly, Mrs Chhabra has failed to establish that the construction of the deck, in particular the piers and footings, has not caused an adverse impact on the management of stormwater within the site.
Integral to the management of the stormwater within the site is the absorption trench and the piping system that conveys stormwater to that trench, as well as the area for dispersal of stormwater. I consider that, given the certification by the hydraulic engineer relied upon by Mr Guerrera, there is a presumption that the system was installed regularly and in accordance with the construction certificate plans. This is consistent with the evidence of Mr Stikkelorum, who gave written evidence in his submission that:
"The previous neighbour has showed me the underground drainage system on site and we know it exists right underneath near the middle of the unapproved structure."
The evidence of both Mr Krishna and Mr Guerrera is that the flow of water that was visible on the day of the site inspection would not likely be seen if the absorption trench was working properly. I accept the evidence of Mr Guerrera that there is likely to be an interference of the posts and footings with the absorption trench system. This is supported by the exercise of overlaying the location of the deck (shown in Ex B) and the layout of the piers (shown in Ex A p 27) on the plans of the trench system (shown in Ex 3 Tab 4), as well as the visual inspection that demonstrates that most of the piers have concrete footings and were not observed to be bolted into bedrock, contrary to the evidence of Mr Krishna. The evidence of Mr Guerrera is sufficient to establish that there is a likelihood of interference of the posts and footings with the absorption trench system. Additionally, whilst the depth of the concrete footing is not known, the manufacturer's detail on the piers require that they have a depth of 500mm (Ex A p 27). If the installation of the posts is compliant with this specification, this depth would interfere with the absorption trench, which is shown on the plans to contain a 200mm cover of sand and grass.
The applicant's reliance, in her submissions, on Mr Guerrera's evidence that he couldn't say that the flows observed on the adjacent site have been increased by any impact on the absorption trench due to the piers of the deck (see Tcpt, 27 October 2020, p 24(49) - 25(3)) is misplaced given that the question put to Mr Guerrera was based on his lack of knowledge as to whether the absorption trench is in situ. Further, Mr Guerrera's answer on this point does not detract from the agreed evidence that the flow of water that was visible on the day of the site inspection would not likely be seen if the absorption trench was working properly.
Whilst Mr Krishna inspected the area of the absorption trench and did not see any signs of seepage, this is not sufficient to persuade me that there has been no interference with the trench and the associated pipes in light of the other evidence. Indeed, it is completely contrary to his evidence that he was unable to ascertain whether there is an absorption trench system there at all. It is also contrary to his evidence that the geology of the site could accommodate sub-surface flow. In other words, whilst surface seepage is one way in which it could be seen that there has been interference, the absence of seepage is not conclusive of a lack of interference. Instead, I prefer the evidence of Mr Guerrera that a CCTV inspection of the full length of the trench ought to be carried out to determine if there is any interference of the piers with the absorption trench system, which could be accompanied by a dye test to ascertain whether the water going to the neighbour's property is coming from the site's stormwater absorption trench system. Similarly, the videos taken by Mr Chhabra, none of which were taken below the level of the deck, do not persuade me that there is no interference of the posts and footings of the deck with the absorption trench system. Additionally, I do not accept the evidence of Mr Krishna that the flow can be explained by contributions from other properties. Consistent with Mr Guerrera's evidence, the adjacent property at 216 Bobbin Head Road has managed stormwater through retaining walls (see Ex K, DA-05) and its levels are not consistent with contributing to such a flow (see Ex K, DA-05), and the driveway and concrete footpath along the site's frontage is shown as being above the level of the road (see Ex A, p 290) which would prevent flows from the road and other properties.
That there is likely to be an interference of the posts and footings with the absorption trench system is supported by the evidence of the neighbour, Mr Stikkelorum. I accept his evidence that the flow of water onto his property from the site during rain events has increased since the construction of the deck.
I do not accept the applicant's position that Mr Stikkelorum's evidence ought to be given any less weight because it was not given under oath. As is the practice of the Court, evidence taken on site is not given on oath. Nevertheless, it still forms part of the evidence and the Court is entitled to rely on it. Pursuant to s 38(2) of the LEC Act, "the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits". In Khattar v Holroyd City Council [2005] NSWLEC 411, McClellan CJ describes the giving of evidence on site by reference to this provision as follows (at [7]):
"Section 38(2), to my mind, makes plain that the Court is not confined to receiving information in relation to the issues before it to a procedure which follows the rules of evidence. Indeed, s 38(2) says expressly to the contrary and provides that the Court may receive that information "in such manner as it thinks appropriate." It has been the practice of this Court for a considerable period of time to receive "evidence" from objectors and other people on-site during the course of a view of the premises. That view traditionally takes place as the first step in a hearing under the current procedures of the Court. That step has been taken mindful of the power given to the Court in s 38(2)."
Mr Ireland cross-examined Mr Stikkelorum on-site, but that cross-examination did not lead him to change his evidence with respect to the flow of the water following the construction of the deck. Although I had earlier put a stop to extensive cross-examination on-site of another neighbour, Mr McNulty (due to concerns around the COVID-19 Pandemic Arrangements Policy), I did not prevent or stop the cross-examination of Mr Stikkelorum at any point. Mr Ireland specifically indicated on site that he did not require either of the residents to appear by audio-visual technology for the purpose of further cross-examination. Although Mr Stikkelorum's measurement of the flow as increasing "by 90%" is no scientific estimate, and I cannot accept it to be precisely accurate, it is nevertheless reliable evidence that the flow has increased since the construction of the deck.
Additionally, I do not accept the applicant's submission that Mr Stikkelorum's evidence is fabricated on the basis that his experience of the noise impacts is inaccurate. The applicant says that, given that the deck largely comprises artificial turf, Mr Stikkelorum must be fabricating the acoustic impacts of the deck, particularly the references to hearing high heels. Although Mr Stikkelorum may be exaggerating his recollection of the acoustic impacts (given the existence of the artificial turf), I do not accept that this means the acoustic impacts are fabricated, or that every aspect of his evidence is false. Instead, I accept that, given his location downstream from the site, Mr Stikkelorum has had a long history of concerns with respect to the management of stormwater flows from the site, he is therefore well placed to give evidence on his observations of how the flows to his property have changed over time, and I unequivocally accept his evidence that "we now have overflow issues nearly each rainfall, rather than by exception" (Ex 2 p 173).
In light of the evidence of Mr Guerrera and Mr Stikkelorum, and the plain exercise of overlaying the layout of the piers and the plan of the deck with the location of the absorption trench, the applicant's submission that there is "no evidence of adverse interaction of the deck with the absorption trench" is entirely contrary to the evidence given. Further, it is framed inversely to the persuasive burden that the applicant has to demonstrate that a building information certificate should be issued. Upon the Council raising the issue of the impact of the structure on the management of water on the site (indirectly in contentions (1)(f) and 9A, and directly in contention 2(b)(vii)), Mrs Chhabra had the persuasive burden of establishing that there was effective water management on the site with the deck in situ. That inherently includes establishing that the deck does not cause any adverse impacts on the water management within the site. Based on the evidence before the Court at the hearing, and for the above reasons, I accept the submission of the Council that I cannot be satisfied on balance that there is no adverse impact of this nature caused by the deck.
Secondly, Mrs Chhabra has failed to establish that the stormwater run-off from the deck itself (including as proposed to be modified by her proposed directions) does not cause an unacceptable impact. Given that the deck is built form above an area that contains an absorption trench, it is not sufficient to assert that the deck is acceptable if the water penetrates through timber slats and percolates on the ground below in the same way as if there was no deck there. The applicant's submission that this would result in the acceptable disposal of the stormwater is not supported by evidence. The evidence of Mr Krishna, who accepted this solution as an appropriate way of managing the stormwater, relied on the presumption that the area underneath the deck was rock, such that "Whether you have a decking or if you don't have a deck… the rock is classified as a hard surface area". However, it is clear from the site inspection and from the photographs that the area is not completely rock, and comprises a large proportion of soil. As his opinion relies on a false presumption, that opinion is not sufficient to establish that this is an acceptable way to manage the stormwater run-off from the deck. Something more is required. I accept the evidence of Mr Guerrera that a permeability factor should be applied, and I accept his evidence that this will cause some concentration of the run off. There is no evidence of how this run off will distribute across the area below in light of the existence and operation of the absorption trench to also disperse water. I accept the submission of the Council that one way that this could have been addressed is by modelling. This could have been done, for example, by calculating the volume of the stormwater runoff from the deck and whether the surface of the absorption trench can accept that runoff in particular rain events without interference with the dispersal of water separately from the trench. However, no such evidence has been provided.
The first consequence of the applicant failing to establish these two points (the first being that the construction of the deck has not caused an adverse impact on the management of stormwater within the site, and the second being that the stormwater run-off from the deck itself does not cause an unacceptable impact), is that I cannot be satisfied that there is no adverse impact of the deck on the downstream property at 25 McRae Place. If the stormwater from the site is not adequately managed on the site, it flows onto that neighbouring property without the benefit of an easement. This is directly in contravention of Part 24 of the KDCP 2012, which at 24A.3 requires that development does not "increase the rate or concentration of stormwater flow across a boundary onto adjoining private property."
That has the potential to create a flow that exceeds the capacity of the overland flow path on 25 McRae Place, and to cause damage to this property, including that damage described by Mr Stikkelorum by the entry of the water into the subfloor.
The second consequence of the applicant failing to establish these two points is that there is a potential impact on the long term stability of the deck due to the concentration of water in the soil around the piers. Mr Krishna's evidence that there was no such issue depended upon the piers being in bedrock. Mr Guerrera also agreed that there would be no issue if the piers were bolted into bedrock. However, there is no evidence that they are in bedrock, and Mr Krishna's opinion was formed by an observation that they were in rock, which observation is not consistent with what was seen on the site inspection or in the photos. Therefore, although cross-bracing as proposed will alleviate structural concerns given the unknown depth of the piers, this will not resolve concerns on long term stability arising from the concentration of stormwater around the piers if those piers are not in bedrock.
[27]
The proposed directions are not acceptable
The directions proposed by Mrs Chhabra at [5] above seek to enable steps to be undertaken to ensure that there is no such adverse impact. Paragraph (1)(d) and (3) of those proposed directions seek to resolve the issues with respect to stormwater management. Paragraph (3) is repeated here for completeness:
"3 Within 90 days:
a. If the absorption trenches as approved in DA 128805-2 (as shown on ACE Civil and Structural Engineers Plan 0506-18) have been constructed and are in situ, the Applicant by invasive camera investigation carried out by a licenced plumber confirm that they have not been punctured by the supporting columns or foundations of the deck and are functioning as designed.
b. Alternatively, if those absorption trenches have not been constructed and are not in situ, then they be installed as approved in DA 128805-2 (as shown on ACE Civil and Structural Engineers Plan 0506-18) between the columns beneath the deck so as to function as designed and not to interfere with the structural stability of the deck, this result to be certified by an independent structural and stormwater engineer.
c. The Applicant to provide a certificate of either a licensed plumber or structural and stormwater engineer within 7 days of the completion of either (a) or (b)."
However, the directions at (3) do not achieve finality in my consideration of the merits of the appeals, they lack sufficient certainty to satisfy me that the Court's discretion should be exercised pursuant to s 8.25(3)(a) of the EPA Act, and they are not considered appropriate as required by s 8.25(3)(c). There are two problems with the directions at (3) that cause me to so conclude.
The first problem is that the directions at (3) are founded on resolving a hypothetical that is not based on established evidence. That is, it provides two different possible hypothetical or theoretical outcomes (and a third outcome of no issue of the building information certificate if neither (a) or (b) are met). Those hypothetical or theoretical outcomes do not provide certainty as to the outcome that will resolve the issues concerning stormwater management. It is unknown what the outcome will be concerning the interference of the absorption trench by the piers. Further, it leaves remaining questions concerning the stormwater runoff from the deck itself, and how the long term stability of the deck will be managed if the piers are not in bedrock.
The second problem is that there is no evidence that an absorption trench can be installed in accordance with (3)(b) with the deck in situ. There is no plan that accompanies that proposal. The evidence of Mr Guerrera is that it could not be done. This was not contradicted in any way by Mr Krishna, who considered that it could only be done if the absorption trench is downstream to the structures or if the piers were in the rock foundation. Given the absorption trench is not downstream from the deck, and that there is insufficient evidence to establish the piers are in the rock foundation (there clearly being soil below the deck, and concrete footings), I cannot be satisfied that an absorption trench can be installed in accordance with (3)(b). Similarly, as considered above at [147], I cannot be satisfied that the proposal to replace the deck with timber slats as proposed in (1)(d) is sufficient to manage the stormwater run-off from the deck.
By contrast, these problems do not exist in the orders proposed in (1)(b) and (1)(e), which clearly outline precisely the work to be done by the applicant and are responsive to the evidence.
As a result of these two problems, the orders in (1)(b) and (3) are not sufficient to achieve finality in resolving the issues with respect to stormwater management. Although the exercise of the functions of the Court by a Commissioner is not the exercise of judicial power, there is nevertheless a general principle that the exercise of the Court's power is constrained by the principle of finality (see Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [192]). This principle has been described as "the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy" (Bass v Permanent Trustee Co Ltd 198 CLR 334; [1999] HCA 9 at [45]). The directions in (3) do not result in a conclusive outcome.
Similarly, the two problems identified above result in orders (in (3)) that do not provide sufficient certainty to satisfy me that the Court's discretion should be exercised pursuant to s 8.25(3)(a) to "direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit". That is, the terms and conditions that the applicant proposes through the orders in (3) do not provide certainty that the issues with respect to the stormwater will be resolved such that the deck will not have the adverse impact that I considered above at [136]-[150]. I consider that it is not appropriate to exercise discretion pursuant to s 8.25(3)(a) without such certainty.
Further, the two problems described above mean that I am not persuaded that the orders in (3) are orders that are considered "appropriate" within the scope of s 8.25(3)(c).
For these reasons, the Court's discretion ought not be exercised to make the directions proposed by the applicant.
[28]
The Court ought not exercise its discretion in the manner sought by the applicant
For all of the above reasons, Mrs Chhabra has failed to establish that the construction of the deck has not caused an adverse impact on the management of stormwater within the site, and that the stormwater run-off from the deck itself does not cause an unacceptable impact. Additionally, the directions do not provide finality and do not provide sufficient certainty that these impacts will be avoided. For these reasons and based on the evidence before the Court, the building information certificate should not be issued and the deck should be brought into compliance with the SEPP ECDC pursuant to the development control order, which includes that the deck "not interfere with the functioning of existing drainage fixtures or flow paths".
I note also that the failure to establish that there is no unacceptable impact on stormwater management means that there is a "matter discernible" that entitles the Council to order the building to be altered, which precludes the issue of a building information certificate pursuant to s 6.25(1)(a). Although this was not the basis for the Council's refusal of the application, it is nevertheless relevant to the exercise of the Court's powers in exercising the functions of "the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal" pursuant to s 39 of the LEC Act.
[29]
Other relevant matters
The above reasons form a sufficient basis upon which I have determined that it is not appropriate to exercise the Court's discretion to direct the issue of a building information certificate or to modify the order in any way.
However, I also consider that the existence and terms of the positive covenant and the restriction on the use of land are relevant to the exercise of discretion. I do not accept the submission made by Mr Ireland that covenants and restrictions on the title of the property are matters of "property law" that have no relevance to matters that arise in planning law under the EPA Act. To the contrary, the condition requiring the registration of the covenant and restriction was imposed on the development consent for the dwelling for a planning purpose that arose under the applicable development control plan at that time.
As such, I accept that the potential breach of both the covenant and the restriction on use of land by the construction of the deck, which is built directly over the area of the stormwater system, is another reason why the Court's discretion ought not be exercised to direct the issue of a building information certificate or modify the order.
[30]
Outcome of the appeal
For the reasons that are set out above, I have determined that the applicant has not established that the construction of the deck has not caused an adverse impact arising from its interference with the management of stormwater on the site, or from the stormwater run-off. As such, I cannot be satisfied that there is no increase in stormwater flow to the downstream property at 25 McRae Place occasioned by the deck, and I cannot be satisfied of the long term stability of the deck given the saturation of stormwater around the area of the absorption trench. Further, it is not appropriate to exercise the Court's discretion to make the directions sought by the applicant in circumstances where they are hypothetical, are not supported by evidence, and do not lead to certainty that these impacts will be avoided.
As such, the building information certificate should not be issued and the order should remain in place. There is no need to consider the remaining issues raised by the Council. The certificate appeal should be dismissed. The order appeal can be upheld only insofar as it allows the applicant a further period of time for compliance with the development control order. There were no submissions made by the parties with respect to the appropriate period of time. As such, I will grant the period permitted by the order itself, a period of 60 days.
In 2019/149498, the Court orders that:
1. The Notice of Motion filed on 12 November 2020 is dismissed.
2. The appeal is dismissed.
3. The exhibits are returned, except for Exhibits 4, B and M.
In 2019/97085, the Court orders that:
1. The Notice of Motion filed on 12 November 2020 is dismissed.
2. The appeal is upheld.
3. The development control order issued by Ku-ring-gai Municipal Council on 28 February 2019 is modified to extend the time for compliance to 60 days from the date of these orders.
[31]
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: 08 January 2021
Parties
Applicant/Plaintiff:
Chhabra
Respondent/Defendant:
Ku-ring-gai Council
Cases Cited (36)
120 LGERA 243; [2001] NSWLEC 191
Texts Cited: Ku-ring-gai Development Control Plan 2012
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy
NSW Rural Fire Service, Planning for Bushfire Protection 2019
Land and Environment Court of New South Wales, Practice Note - Class 1, 2 and 3 Miscellaneous Appeals
Category: Principal judgment
Parties: Neharika Chhabra (Applicant)
Ku-ring-gai Council (Respondent)
Representation: Counsel:
C Ireland (Applicant)
J Smith (Respondent)
The relevant principles
The principles concerning the re-opening of a case after final submissions and prior to judgment are set out by the Court of Appeal in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471. They are helpfully summarised by Brereton J in Chao v Chao (No 2) [2008] NSWSC 612, in the following way (at [2]):
"The Court has a discretion to grant a party leave to re-open its case after final submissions have been concluded and the Court has reserved its decision. The ultimate question is whether the interests of justice are better served by allowing or rejecting the application. It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. It will also be relevant to consider the materiality of the proposed additional evidence, and whether it could by reasonable diligence have been discovered before, or at least any explanation for its not having been adduced earlier."
The principles that inform the discretion, and the relevant case law, are also summarised by Einstein J in The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 at [4]-[8]:
"…The test of what is 'just' at this stage of the proceedings is akin to the considerations applicable where leave to rely on fresh evidence is sought on appeal. That is, the evidence must be credible, highly probative and not previously obtainable by reasonable diligence [Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717 at 719 per Young J; Ritchies at [51.51.50]; Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 at 493 - 494 per Toohey J; Murray v Figge (1974) 4 ALR 612; Betts v Whittingslowe (No 1) [1944] SASR 163; Hughes v Hill [1937] SASR 285; Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88].
5 Naturally the principles which inform the exercise of the discretion to re-open are to be read against the general background of the obvious public interest in the finality of litigation: cf Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300 per Mason CJ at 302-303.
6 In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Kenny J identified at [24] certain recognised classes of cases in which a court may grant leave to re-open as including where:
(a) Fresh evidence becomes available [Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 3) [2009] FCA 82 (evidence from a 'whistle blower' became available after the conclusion of the hearing)];
(b) There is inadvertent error; [Telecom Vanuatu Ltd v Optus Networks Pty Ltd (No 2) [2009] NSWSC 33];
(c) There is a mistaken apprehension of the facts [Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; Autodesk Inc ]; or
(d) There is a mistaken apprehension of the law [Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471].
7 In Smith v NSW Bar Association (1992) 176 CLR 256 at 266 a majority of the High Court found that:
"If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application." [See also: Barker v Furlong [1891] 2 Ch 172 at 184; Hughes v Hill [1937] SASR 285 at 287; Multicon Engineering Pty Ltd v Federal Airports Corporation (NSWSC, Cole J, 10 December 1993, unreported)].
8 In ASIC v Rich (2006) 235 ALR 587 at [18] per Austin J listed the factors that he agreed were relevant to the exercise of the discretion as follows:
i. The nature of the proceeding [See also Woolworth Ltd v Olson [2004] NSWSC 871];
ii. Whether the occasion for calling the further evidence ought reasonably to have been foreseen;
iii. The consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
iv. The extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;
v. The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
vi. The degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
vii. The prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
viii. The public interest in the conclusion of litigation [See also Hawthorn Glen Pty Ltd v Aconex Pty Limited (No 1) [2007] FCA 2010 at [48]]; and
ix. What explanation is offered by the plaintiff for not having called the evidence in chief."
On this application, the evidence in the plumbing affidavit was not available at the time of the hearing but was procured by the applicant after judgment was reserved on the appeals, for the purpose of addressing specific facts in issue that arose in the course of the hearing. Nevertheless, the factors relevant to the exercise of the discretion extend to the degree of relevance and probative value of the further evidence and its potential to involve an undue waste of time, as well as the prejudice, delay and cost that would be occasioned by its late introduction (see ASIC v Rich (2006) 235 ALR 587; [2006] NSWSC 826 at [18] per Austin J).