DEXUS Funds Management Ltd v Blacktown City Council

EX TEMPORE Judgment 1By summons filed on 27 May 2011, DEXUS Funds Management Ltd ( DEXUS ) seeks judicial review of a decision made by Blacktown City Council ( the Council ) on 16 February 2011 to grant development consent for a new shopping centre at Jersey Road, Plumpton. DEXUS seeks a declaration of invalidity as well as injunctive relief to restrain the second respondent from acting upon the development consent. 2DEXUS now seeks a direction pursuant to Pt 31, r 31.19 of the Uniform Civil Procedure Rules 2005 ( UCPR ) to enable it to call expert evidence in the proceedings. In the absence of such a direction, expert evidence may not be adduced at trial: UCPR 31.19(3). 3The background against which the direction must be considered are the bases of claim for invalidity identified in the points of claim filed on behalf of DEXUS on 15 July last. In essence, it pleads three grounds upon which the decision of the Council is claimed to have miscarried. First, it is claimed that the Council "failed to give any or any proper consideration" to parking and traffic impacts had upon local roads and traffic signal controlled intersections in the vicinity of the proposed development. Related to that ground of challenge is a challenge to the validity of a deferred commencement condition said to be "lacking in finality and certainty" in respect of a number of nominated matters. 4The second basis of challenge is said to arise from the failure "to give any or any proper consideration" to matters concerning contamination of part of the land that is the subject of consent. The failure to consider relevant matters in that regard is directed to cl 7 of State Environmental Planning Policy No. 55 - Remediation of Land ( SEPP 55 ) . 5The third basis of challenge is a claim that the grant of development consent "was manifestly unreasonable". The particulars stated for that ground of challenge are the matters pleaded in respect of the first two grounds of challenge. 6UCPR 31.19 relevantly provides as follows: " 31.19 Parties to seek directions before calling expert witnesses (1) Any party: (a) intending to adduce expert evidence at trial, or (b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial, must promptly seek directions from the court in that regard. (2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore. (3) Unless the court otherwise orders, expert evidence may not be adduced at trial: (a) unless directions have been sought in accordance with this rule, and (b) if any such directions have been given by the court, otherwise than in accordance with those directions. (4) This rule does not apply to proceedings with respect to a professional negligence claim." 7The context, to that rule is, for present purposes, identified in UCPR 31.17. The latter rule proves that the "main purposes" of the Division in which r. 31.19 appears are relevantly expressed to be - "(a) to ensure that the court has control over the giving of expert evidence, (b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings ... ." 8The Court of Appeal has recently had occasion to consider UCPR 31.19. In Shellharbour City Council v Minister for Planning [2011] NSWCA 195 Giles JA said (at [35]): "The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible." His Honour's observations made clear that relevance and admissibility alone will be insufficient. When exercising the discretion available under the rule, it is necessary to determine whether the evidence is "reasonably required" in order to ensure the just, quick and cheap disposition of the real issues in dispute. 9It is well established that the scope for admissible expert evidence in judicial review proceedings is very confined. Indeed, the scope for evidence that was not before the decision maker is limited: ( Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540; McCormack v Deputy Commissioner of Taxation [2001] FCA 1700; (2001) 114 FCR 574 at [37] - [38]; ULV Pty Ltd v Scott (1990) 19 NSWLR 190; Woolworths Ltd v Wyong Shire Council [2005] NSWLEC 400.) While it is accepted that evidence may be adduced in such proceedings of material available to the decision maker had appropriate enquiry been made ( Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155), such an enquiry is not sought to be the subject of expert evidence to be adduced in this matter, assuming that such evidence could ever properly be the subject of expert material. 10The expert evidence sought to be adduced by DEXUS is from both a "contaminated land expert" and a "traffic expert". In providing written particulars of that which was sought from each of these experts and as articulated in oral submissions, the evidence proposed is directed to identification of "the relevant factual matters" supporting the propositions particularised in the points of claim. In the case of the contamination evidence, the "factual matters" appear to be directed to the insufficiency of information before the Council at the time at which it granted development consent. The "relevant factual matters" sought from the traffic expert is to support deficiencies alleged in the Council's consideration of traffic matters. 11Paragraph 14 of the points of claim filed on behalf of DEXUS is the paragraph directed to consideration of land contamination issues. As I have earlier indicated, it is alleged that the Council failed to give consideration to the provisions of cl 7 of SEPP 55. Subclauses (1), (2) and (3) are the subclauses that are pleaded as those to which consideration was not given. Clause 7 of SEPP 55 relevantly provides as follows: " 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. ..." 12As the Council submits, in light of the breach alleged, the issue for the Court to determine is whether, as a matter of fact, the Council: (i) considered whether the land is contaminated; (ii) if the land is contaminated, it manifested satisfaction that the land was suitable in its contaminated state for the purpose for which the development was proposed to be carried out; (iii) was satisfied that the land would be remediated before the land was used for that purpose; (iv) considered a report specifying the findings of a preliminary investigation of the land concerned, carried out in accordance with the contaminated land planning guidelines; and (v) has required the applicant to carry out, and provide a report on, a detailed investigation if it is considered the findings of preliminary investigation warranted such an investigation. 13In considering these matters, the task of this Court when determining the proceedings will be to assess the information that was before the Council in order to determine whether it has failed to consider the matters pleaded in paragraph 14 of the points of claim. Expert evidence directed to the sufficiency of that information or whether the Council failed to consider matters or was satisfied as to matters about which it was required to be satisfied are all issues of fact in respect of which expert evidence would not appear to be admissible. 14In addressing both this matter and the matters in relation to traffic and parking, it is necessary to make a brief observation about the manner in which breaches are alleged in the points of claim against the possibility that they bear upon the direction that is now sought. As I have indicated, the relevant pleading in respect of both land contamination and traffic issues is one that alleges failure "to give any or any proper consideration" to matters said to be relevant to the Council's determination. A requirement that a decision maker give "proper, genuine and realistic consideration" to matters that, by law, are bound to be considered is no longer a complete formulation of the obligation ( Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [117] - [120]; Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [35]). ). So long as the consideration given to a matter that the decision maker was bound to consider in a manner that is more than mere advertence or "lip service", the decision will be immune from challenge on the basis of failure to take into account a relevant consideration: Sharples v Minister for Local Government [2008] NSWLEC 328 ; (2008) 166 LGERA 302 at [108] - [110]; Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204 at [41]) . 15Before leaving the application to call evidence from a contaminated land expert, I should acknowledge submission made on behalf of DEXUS and founded upon the decision of Biscoe J in Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 . At [117] and following, his Honour made a number of observations directed to a submission in that case that there had been a failure to comply with the requirements of SEPP 55. Those observations included an indication of the manner in which a planning authority should appropriately address contamination issues when they arose in the determination of a land use application by reference to SEPP 55. 16However, of importance for present purposes is the fact that his Honour's observations were made on the basis of both the provisions of the instrument itself and documents tendered before him, rather than on the basis of any expert evidence that was adduced. Reference to his Honour's observations in that case do not, to my mind, support the making of a direction for expert evidence in the present case. 17Observations similar to those made in respect of the proposal to call a contaminated land expert apply with equal force to the directions sought to call a traffic expert. DEXUS has pleaded the manner in which there was a failure to consider relevant considerations in relation to traffic and parking matters. Documents before the Council or available to it at the time of making its decision must surely be the basis upon which the Court will determine whether relevant matters were considered. Assuming, as I am told was the case, that there was expert evidence available to the Council a the time of making its decision, the calling of expert evidence to express a different opinion would not be evidence relevant to be considered in judicial review proceedings. 18It was suggested on behalf of DEXUS that "various factual matters" upon which it seeks to rely "can only be identified with the assistance of expert witnesses". That statement does not appear to support, on a ground relevant to the present proceedings, the basis upon which evidence should be adduced. If the role of the intended experts is to identify "factual matters" then that expert is in no better position to do so than is the Court. 19The prospect that the evidence sought to be adduced by DEXUS will impermissibly slide into merit review is exemplified by the manner in which its written submissions identify the "relevant factual matters" that it seeks to have addressed. I do not recite all of them but nomination of three of them will exemplify the proposition. They are: "(i) the identification of matters which should have been considered by Council in respect to traffic; (ii) the identification of impacts which should have been considered in respect to such matters ... (vii) in particular the impacts which should have been assessed as to the likely impact of traffic control signals at the changed eastern access to the site in respect to ... " (Emphasis added) 20In similar vein, the "relevant factual matters" required from the land contamination expert identified propositions of which the first is an appropriate example: "(i) that the information before Council at the time it determined the application was insufficient to enable it to conclude whether and to what extent the land is contaminated" 21All of these matters of "fact" ought not, for the purpose of judicial review, require expert evidence. Rather, at least as they are framed both in the letter of particulars provided by DEXUS and articulated in the written submission, they are matters that are capable of being argued on the basis of the material provided to or available to the Council at the time of its determination. 22I do not overlook the claim made by DEXUS alleging that the Council's decision was manifestly unreasonable. However, as this claim is pleaded simply by reference to the traffic and contaminated land issues said not to have been considered by the Council, it does not appear to me to be a ground that gives rise to an independent basis upon which to direct expert evidence. 23The particulars that I have identified illustrate a second basis upon which it is appropriate to decline making any directions for expert evidence at the present time. That basis turns on the lack of detail of the expert evidence appropriate to be given in judicial review proceedings. As Hodgson JA remarked in Shellharbour City Council v Minister for Planning at [26]: " ... where, as in this case, it may very reasonably seem highly unlikely that expert evidence will be relevant to an issue, it may be necessary for an applicant for directions for expert evidence to provide some specificity as to the proposition or propositions that the expert evidence is expected to support, rather than merely give a vague indication of the area in which the expert evidence will be given." 24I have earlier identified the limited circumstances in which, according to authority, expert evidence will be relevant to be adduced in judicial review proceedings. Particularly is this limitation made apparent in cases, such as the present, where the ground of challenge is based upon a failure to consider matters that the decision-make was bound to consider. A case of that kind is one in which it is "highly unlikely that expert evidence will be relevant to an issue". That being so, the specificity of the evidence intended to be the subject of leave so that the manner upon which it potentially bears upon the issue can be determined. The kind of specificity required was not before me. This requirement for some specificity is perhaps no more than an articulation of the requirement that, in giving effect to UCPR 31.19, the evidence be "reasonably required to resolve the proceedings" and that something more than relevance and admissibility be demonstrated in order to fulfil the purpose that the rule is intended to serve. 25On the basis upon which DEXUS has presently pleaded its challenge to the development consent granted by the Council, I refuse leave to adduce expert evidence directed to land contamination and traffic issues.