In an Amended Summons filed 25 January 2018, David DeBattista ('applicant') seeks declaratory and consequential relief in relation to the conduct of Shoalhaven City Council ('Council') in the preparation of planning proposal PP023 dated 12 October 2017 ('planning proposal') regarding the amendment of aspects of Shoalhaven Local Environmental Plan 2014 ('SLEP').
The present proceedings came before me on 9 February 2018 in my capacity as list judge. Before the Court is a Notice of Motion in the substantive proceedings that the applicant be granted leave pursuant to r 31.19(2) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') to adduce expert evidence from an expert in town planning and an expert in land economics. The applicant also seeks an order that the Minister for Planning ('Minister') and Council be required pursuant to r 22.1(1) of the UCPR to provide answers to specified interrogatories. The substantive proceedings have been set down for hearing on 7, 8 and 9 March 2018.
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Background
The applicant's primary claim as presently set out in the Amended Summons and Points of Claim may be briefly summarised as follows.
The applicant seeks a declaration that the second respondent failed to comply with s 117(3) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') in the course of preparing the planning proposal.
The applicant is the owner of lots 1 and 6 of DP 1082382 Island Point Road in St George's Basin ('applicant's land'), land to which the planning proposal applies. Relevantly, the planning proposal reduces the maximum building height control over part of lot 1 and all of lot 6 from 13m to 8.5m under the SLEP.
It is the applicant's submission that Council, when preparing the planning proposal, failed to comply with its duties under s 117(3) of the EPA Act. Section 117 provides for the making of local planning directions by the Minister which a council must then comply with. Section 117(3) provides:
A public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction.
There is a privative clause in s 117(5) which provides:
A local environmental plan (or any planning proposal or purported plan) cannot in any court proceedings be challenged, reviewed, called into question, prevented from being made or otherwise affected on the basis of anything in a direction under subsection (1) or (2).
Crucially for the applicant, s 117(5) does not, on its terms, apply to s 117(3).
In particular, the applicant contends that Council failed to comply with directions that require first, that a council ensure it does not reduce the potential floor space available for employment uses and related public services in business zones; and second, that a council ensure it does not reduce the permissible residential density of land. These obligations arise from Local Planning Direction 1.1 cl 5(b) and Local Planning Direction 3.1 cl 6(b) ('local planning directions').
Local Planning Direction 1.1 cl 5(b) provides:
A planning proposal may be inconsistent with the terms of this direction [which says that a council must ensure that it does not reduce the potential floor space available for employment uses and related public services in business zones] only if the relevant planning authority can satisfy the Secretary of the Department of Planning and Environment (or an officer of the Department nominated by the Secretary) that the provisions of the planning proposal that are inconsistent are… justified by a study (prepared in support of the planning proposal) which gives consideration to the objective of this direction.
Local Planning Direction 3.1 cl 6(b) provides:
A planning proposal may be inconsistent with the terms of this direction [which says that a council must not reduce the permissible residential density of land] only if the relevant planning authority can satisfy the Director-General of the Department of Planning (or an officer of the Department nominated by the Director-General) that the provisions of the planning proposal that are inconsistent are… justified by a study prepared in support of the planning proposal which gives consideration to the objective of this direction.
The applicant's pleadings proceed on the basis that Council failed to prepare studies which supported the planning proposal and which gave consideration to the relevant local planning directions, and therefore failed to have regard to the relevant local planning directions.
It should be noted that Council did provide a feasibility analysis to support its planning proposal. The applicant submits that this document is defective such that it does not meet the threshold requirement of being a "study".
In view of what is, in its submission, Council's failure to comply with the local planning directions, the applicant seeks an order that the purported making of the planning proposal miscarried and that Council should be ordered to perform its functions under s 117(3).
For the purposes of the Motion, the applicant read the affidavit of Maurice Hawell sworn 5 February 2018 where Mr Hawell, the applicant's solicitor, provided background information on the basis for the claim.
In respect of the application for expert evidence, the applicant contends that the failure of the planning proposal to comply with the local planning directions cannot be proved on the documents alone. The applicant proposes to additionally rely upon expert evidence from a land economist and a town planner.
It is proposed that the land economist be asked to give an opinion as to whether the feasibility analysis submitted by Council in support of the planning proposal gives any rational justification for the reduction in the permissible residential density of the land, and if not, why not.
In oral argument, it was suggested that the land economist could also give evidence as to the economic impact of the planning proposal on the applicant's land. It was submitted by the applicant that this is a matter which goes towards the Court's discretion to award relief.
The applicant has already engaged Stephen Richardson as an expert town planner. Should leave be granted, the applicant proposes to rely upon a report prepared by Mr Richardson which considers whether the planning proposal rationally considers the local planning directions, and, if there is an inconsistency with either direction, whether any such inconsistency is justified by Council's feasibility study.
With respect to the application for interrogatories, the applicant proposes to issue interrogatories to the first and second respondent. The questions proposed to be put to the respondents relate to their assessment of the planning proposal against the requirements of the local planning directions; the Minister's opinion that the planning proposal was inconsistent with the local planning directions but that the inconsistencies were justified; Council's opinion that the planning proposal was consistent with Local Planning Direction 3.1; and Council's opinion that the planning proposal was inconsistent with Local Planning Direction 1.1 but that the inconsistency was justified.
In its written submissions, the applicant says that the interrogatories may narrow the issues in dispute. For example, it is submitted that a number of requirements under the local planning directions may become irrelevant depending on the respondent's answers.
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Applicant's submissions on the Motion
Mr Tomasetti, senior counsel for the applicant, was careful to submit that this case is not one of judicial review, but rather "enforcement" proceedings. The decision of the Secretary is not impugned by the applicant, and indeed the applicant concedes that such an application may in any case be prevented by the privative clause in s 117(5) of the EPA Act. Rather, the applicant submits that it is seeking to enforce the duties imposed on Council by s 117(3).
Mr Tomasetti noted that there is no definition of "study" in the local planning directions, but submitted that it must mean more than a statement. In the applicant's submission, a minimum requirement of a study would be that it paid careful attention to the relevant directions, and in this regard the feasibility analysis is defective.
In order to show the defectiveness of the feasibility analysis, Mr Tomasetti submitted that is necessary for the applicant to have recourse to expert evidence, as the Court would be unable to ascertain whether sufficient regard had been had to the local planning directions if it had regard only to the instruments themselves.
In answer to the proposition that the interrogatories were directed towards a decision not impugned in the proceedings and that leave should therefore not be granted, Mr Tomasetti submitted that this was to misunderstand the applicant's case as pleaded. The interrogatories are directed, according to the applicant, towards Council's failure to discharge its duties under s 117(3).
Lastly, Mr Tomasetti observed that is not for the judge upon hearing the Motion to determine whether the evidence for which leave is sought is admissible. The decision to grant leave does not presuppose a finding of admissibility, which must be left for the trial judge in the particular case.
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Respondents' submissions on the Motion
Mr Clay, senior counsel for the second respondent, submitted that with respect to the interrogatories, it is the "beginning and the end of it" that they are directed to the decision of the Secretary's delegate, a decision which is not impugned in these proceedings.
With respect to the expert evidence, Mr Clay noted that there was difficulty in submitting that the documents presented by Council were inadequate for the purpose of the Secretary forming an opinion because the Secretary's delegate did, in fact, form the requisite opinion and that decision is not impugned.
Further, Mr Clay submitted that the nature of the evidence upon which the applicant proposes to rely is not evidence which is relevant to the Court's inquiry. Rather, in the first respondent's submission, the expert evidence is directed towards the merits of the feasibility analysis. Mr Clay submitted that the question to be decided is whether the document itself meets the statutory requirement, and in that respect the document could speak for itself.
Ms Sims, who appeared for the first respondent, made submissions only with respect to the interrogatories, indicating that the first respondent took no stance with respect to the expert evidence. In Ms Sims' characterisation, the interrogatories seek to investigate the reasons for a decision made by a delegate of the Secretary who is not even a party to the proceedings.
Additionally, and without conceding that the information in any event was relevant to the ultimate issues under dispute, Ms Sims submitted that a more efficient way to procure the evidence sought by the interrogatories would have been to furnish the decision-maker with a notice to produce.
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Consideration
With some caution, I accept the applicant's submission that the manner in which the applicant pleads its case is that it is not the decision of the Secretary's delegate that is impugned, but rather Council's purported failure to implement the prescribed statutory process.
The usual position in judicial review proceedings is that expert evidence is inadmissible, and even where it is admissible it will, in many cases, not align with the just, quick and cheap resolution of proceedings. There is no prima facie entitlement to expert evidence. As Giles JA said in Shellharbour City Council v Minister for Planning [2011] NSWCA 195 at [35]:
The primary purpose of the rule [r 31.19(2)] is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that is relevant and admissible.
Nevertheless, as Preston CJ of LEC said in Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 at [46]:
The chariness in admitting expert evidence in judicial review proceedings does not carry over into civil enforcement proceedings to restrain and remedy a statutory breach.
In that respect, and having regard to the way in which the matter is pleaded, at least in relation to the possible reliance upon the Court's exercise of discretion, I find that the applicant should have leave to rely on the expert evidence with respect to town planning and land valuation. In so doing, I do not predetermine the issue of the evidence's admissibility, noting the applicant's correct submission that such considerations should be left to the trial judge. This is especially so as the applicant has not yet prepared the evidence upon which it seeks to rely in a final form.
Similarly, again having regard to the way in which the matter is pleaded, I find that the interrogatories are not impermissibly directed towards the decision of the Secretary's delegate as submitted by the respondents. I am satisfied that the interrogatories have a relevant association with a matter in issue in the proceedings and that they may be relevant to the determination of facts in issue. I accept that, as the applicant submitted, the interrogatories may reduce the length and cost of the proceedings.
Although the applicant submitted that the decision of the Secretary's delegate "is not impugned", I do note that there is a fine distinction between an inquiry directed at the decision and an inquiry directed at the material upon which the decision was based.
In that regard, it should also be noted that neither respondent objected to the form of the interrogatories, nor made any specific criticism of individual interrogatories. Further, I repeat that matters going to the admissibility of answers that may be given are reserved for the trial judge.
With respect to the first respondent's submission that the information sought in the interrogatories could have been more efficiently procured by way of a notice to produce, I accept Mr Tomasetti's submission in reply that the information gained through such a procedure would not be the same as that sought in the Notice of Motion currently before the Court.
Given that the matter is set down for hearing on 7 to 9 March 2018 and that the Motion was only filed on 5 February, it is appropriate that any expert evidence sought to be relied upon is filed expeditiously and as such, I require it to be filed by 20 February 2018.
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Orders
Accordingly, I make the following orders.
1. The Court gives a direction under r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) that the applicant is to file and serve any expert report upon which it will seek to rely in the disciplines of town planning and/or land economics on or before 20 February 2018.
2. The first and second respondents be required pursuant to r 22.1(1) of the Uniform Civil Procedure Rules 2005 (NSW) to provide answers to the questions detailed in Annexure C to the affidavit of Maurice Hawell, sworn 5 February 2018, on or before 27 February 2018.
3. Costs of the Motion to be costs in the proceedings.
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Decision last updated: 14 February 2018