Filetron Pty Ltd v Innovate Partners Pty Ltd ACN 131 941 145 atf Banton Family Trust 2

Land and Environment Court (NSW)|2022-08-04|Before: Pain J

Solicitors: Clark McNamara Lawyers (Applicant) Shaw Reynolds Lawyers (First Respondent) Maddocks Lawyers (Second Respondent) File Number(s): 2021/00353279

Judgment

The Applicant Filetron Pty Ltd has commenced judicial review proceedings challenging the grant of development consent DA/0288/2021 to the First Respondent Innovate Partners Pty Ltd (as trustee) by the Second Respondent the Goulburn Mulwaree Council for various uses including a cellar door use on the First Respondent's land at Marulan. The sole access to the First Respondent's land is over a road on the Applicant's land in relation to which the First Respondent has a right of access.
The matter is listed for hearing on 22-24 November 2022.
The Applicant has filed a notice of motion dated 19 July 2022 seeking leave to adduce expert evidence pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The evidence sought to be relied on is the report of a town planner Mr Grech and a traffic consultant yet to be identified.
Rule 31.19 of the UCPR states: Part 31 Evidence Division 1 Evidence at hearing … 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. ….

Grounds of judicial review

The summons identifies numerous grounds. Ground 2 alleges the absence of proper consideration under s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). Ground 4 alleges Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 233 (Wednesbury) unreasonableness in relation to various matters.

Ground 2: Absence of proper consideration under s.4.15(1)(b) of the EPA Act

Ground 2 is an allegation that: 17 the Council failed to give proper, genuine and realistic consideration to a mandatory relevant matter, namely, the likely impacts of the proposed development, including environmental impacts on both the natural and built environments and the economic impacts in the locality, pursuant to s 4.15(1)(b) of the EPA Act. Particulars: (a) The Council failed to give proper consideration to the impact of the Consent on the use and activities conducted by the applicant on Lot 455, a matter which was raised in the applicant's submission to the second respondent (on 30 July 2021) and fell within the assessment required by s 4.15(1)(b). (b) The Council failed to give proper consideration to the impact of the Application having regard to the fact that the Council was aware that the Application was concomitant with the use proposed by DA 0387; (c) The Council had material before it (namely the applicant's objections of 20 April 2021 referred to in paragraph 9 and of 30 July 2021 referred to in paragraph 10a. and the DA 0387 Assessment Report referred to in paragraph 11) that indicated that the use proposed by DA 0387 represented a significant intensification of the use of the Right of Access. 18 The Council failed to give proper, genuine and realistic consideration to a mandatory relevant matter, namely the objectives of the RU2 zone under the Goulburn Mulwaree Local Environmental Plan 2009 (LEP), which contains an objective "to minimise the potential for conflict between adjoining land uses". 19 The error was material, because had the Council given proper consideration to the likely effects and impacts there is a realistic possibility and probability the Council would have refused to grant consent.

Ground 4 Wednesbury unreasonableness

Ground 4 is an allegation that: 21 In purporting to grant the Consent the Council acted unreasonably, irrationally and illogically. Particulars a. The Development Assessment Report for DA 0288 (per Mr Hedges, 6 September 2021), which formed the basis for the Decision, contains factual statements which had no basis in the evidence before the Council, namely: i. the consideration of "Access, Transport & Traffic" (report of Intersect Traffic of December 2020) (Traffic Report) submitted by the first respondent in support of the Application markedly and significantly misstated the content of the Traffic Report (pp.11, 13-15 of Mr Hedges' report) ; ii. the statement that the increase in traffic on the Right of Access "would not be an 'intensification' of the use for which the right of access was granted" (p. 15) had no basis in the material before the Council, including the Traffic Report and the Statement of Environmental Effects accompanying the Application; iii. the statement that the proposed development would "not present a significant land use conflict" (p. 11) had no basis in the material before the Council, including the Traffic Report, the SEE and the submission made by the applicant; The Council knew or ought to have known that these factual statements had no basis, including by reason of the analysis contained in the Development Assessment Report prepared in relation to DA 0387 (per Matthew Hedges, undated, 13 pages). b. comparison of the conclusions of the Traffic Report with other material available to the Council would have demonstrated to the Council that the Traffic Report was erroneous in in a number of respects, including in the following significant respects: i. the "Site Description" does not refer to the Right of Access or the terms of the s. 88B instrument (p. 2); ii. contrary to the assertion on p. 4, Wollumbi Road and Red Hills Road serve over 50 rural properties; iii. no traffic assessment was undertaken for the proposed wine and olive processing activity, which was stated to require at least six staff seven days per week (p. 7); iv. there is internal inconsistency concerning the number of additional vehicle movements (compare p. 12 and p. 7); v. the traffic assessment fails to account for the vehicle movements necessitated by the proposed wine and olive processing activity and the estimate of 56 visitors per day attending tastings (pp. 7, 12); vi. The traffic assessment fails to take account of vehicle movements for an unlimited number of people attending private tastings outside the Long Building (pp 7 and 10); vii. the Right of Access is described as being 4m wide when, for most of its length, that is not the case (p 9); viii. there was no assessment which included the prospective impact from the use for visitor or tourist accommodation the subject of DA 0387 when the Council had or was about to conclude that consent for that use was not required. c. comparison of the conclusions of the Bushfire Assessment Report of Bushfire Planning and Design of 4 December 2020 submitted by the first respondent in support of the Application (Bushfire Report) with other material available to the Council would have demonstrated to the Council that the Bushfire Report was erroneous in in a number of respects, including in the following significant respect: i. the statement that a secondary access road is not considered to be required because the primary road is surrounded by managed land (p 24) had no basis in fact on the material before the Council following an inspection of the site. The primary road is the land the subject of the Right of Access and the part of the Crown road which intersects it. None of the land surrounding it is managed land as defined at page 112 of Planning For Bush Fire Protection published by NSW Rural Fire Service dated November 2019 as follows: Land that has vegetation removed or maintained to a level that limits the spread and impact of bushfire. This may include developed land (residential, commercial or industrial), roads, golf course fairways, playgrounds, sports fields, vineyards, orchards, cultivated ornamental gardens and commercial nurseries. d. There is no reasonable, logical or rational basis for the statement in the Development Assessment Report (p 16) that the Bushfire Report suitably addresses the development against the bush fire hazard. e. The landscape plan (Drawing 19022/10A prepared by Michael Bligh and Associates Pty Ltd titled Master Plan Homestead Garden dated 30/05/2020) does not show the development. f. The Development Assessment Report refers (at p. 18) to the proposed development having been referred to the Rural Fire Service (RFS) for concurrence and states that he RFS have assessed the Development Application and provided conditions to be complied with as part of any positive determination. Those condition include: i. Existing Dwelling - A minimum 50 metres asset protection zone in all directions (NSW Rural Fire Service letter 26 March, 2021 p. 1) ii. All landscaping within the site shall comply with the principles of Appendix 4 of Planning for Bushfire Protection 2019. No landscaping plans were lodged in support of the Application to demonstrate: iii. how those conditions would be complied with; or iv. whether compliance with those conditions or the development generally would adversely impact critical habitat, threatened species/population/communities, wildlife corridors or remnant vegetation. Further the impact of the minimum 50 metres asset protection zone around the existing dwelling was not considered in the Development Assessment Report g. The Decision records that no submissions were received in the course of the assessment, when in fact the applicant had made a substantive submission (30 July 2021) on the Application. h. Further or in the alternative, the proposed development, and the Decision, is inconsistent with the objectives of zone RU2 under the Goulburn Mulwaree Local Environmental Plan 2009 (LEP), in that it fails to minimise the potential for conflict between adjoining land uses. i. The applicant repeats the matters referred to under the heading "Ground 2" above in support of the unreasonableness of the decision. 22 The error was material, in that had the Council acted reasonably on the basis of the evidence before it there is a realistic possibility that it would have declined to grant consent to the Application.

Evidence

A statement of agreed facts (SOAF) was marked Ex A. I do not need to set it out for the purposes of this judgment.
The assessing officer's development application assessment report for DA/0288/2021 was marked Ex B.

Affidavit of Mr Gordon

Mr Gordon solicitor swore an affidavit on 19 July 2022 which attached the report of Mr Grech town planner dated 1 July 2022. Paragraph 4 also identified the topics a traffic expert would address as follows: 4. The Applicant seeks leave to file and serve an expert report prepared by a traffic expert as to what a council acting reasonably ought to have done in assessing Development Application DN0288/2021 in relation to and when considering traffic matters having regard to: a) the Traffic Impact Assessment of December 2020 of Intersect Traffic and what a traffic expert may identify as deficiencies in it; b) other information available to Council including about visitor numbers; c) Council's obligations under section 4.15(1)(b) of the Environment Planning and Assessment Act 1979 to take into consideration the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality; d) Development Application DN0387/2021 lodged on or about 10 March 2021 for Tourist and Visitor Accommodation (excluding Hotel Motel Accommodation and Serviced Apartments) that is ancillary to the existing dwelling house and documents lodged with it and in relation to it; and e) The matter referred to in the second paragraph of the letter annexed hereto and marked "B'' from Council to FDC Construction (NSW) Pty Ltd dated 24 September 2022; to assist the Court in determining planning matters relevant to in Grounds 2, 3 and 4 set out in the Applicant's Summons. It is estimated that the traffic expert's report would be foiled and served by 29 August 2022.
The letter annexed to Mr Gordon's affidavit marked 'B', from the Council to FDC Construction (NSW) Pty Ltd dated 24 September 2022, par 2 states: Council advises that the Short Term Rental Accommodation (STRA) provisions put in place by the NSW Government that come into effect on 1 November 2021 will permit the Applicants to undertake the use for which DN0387/2021 was lodged without the need to seek Council Approval.

Grech report

In the course of submissions not all parts of Mr Grech's report were pressed. The topics that were pressed in relation to ground 2 were headed Biodiversity Impacts, permissibility, compatibility with agricultural use on the Applicants land, bushfire hazard assessment, and flood risk assessment. In relation to ground 4 Mr Grech's evidence regarding traffic generation (par 21(a) and (b) of the summons), bushfire hazard (par 21(c)-(h) of the summons), and various other matters (summons par 21(g)-(i)) were briefly identified. The summons identified in ground 4 that all matters identified in relation to ground 2 were pressed so that those parts of the report relevant to ground 2 were also pressed in relation to ground 4.

Applicant's submissions

The Applicant had made submissions objecting to aspects of the development application to the Council, as referred to in particular (a) in par 17 of the summons.
The Grech report is directed to grounds 2 and 4 of the summons. A traffic report addressing the matters identified in Mr Gordon's affidavit is sought to be relied on in relation to ground 4.
The purpose of UCPR r 31.19 is identified in Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 (Shellharbour) at [18].
Admissibility of expert evidence depends on the ground of review, the relevant issues and the nature of the evidence: Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 (Muswellbrook) at [42]. Other cases are of limited utility in assessing the need for expert evidence as each case must depend on its own circumstances. Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (2013) 193 LGERA 222; [2013] NSWLEC 38 (Fullerton Cove) provides an example where expert evidence was allowed in relation to a ground of review that was not based on Wednesbury unreasonableness. A number of cases have allowed expert evidence to be adduced in relation to a ground alleging Wednesbury unreasonableness, see Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 (Arnold No 6).
The Applicant stated that consideration of ground 2 requires the assistance of an expert town planner as the issues concerning the failure of the Council to follow the correct processes for proper, genuine and realistic consideration of the mandatory matters are town planning matters not legal matters in relation to biodiversity, bushfire hazard, flooding and incompatible land uses. Such evidence will assist the Court in determining ground 2.
The Court was taken to parts of the assessment report Ex B in relation to vehicular access and parking, rural land use conflict, access, transport and traffic, water on an access track, and cumulative impacts.
The Court was taken to sections of Mr Grech's report referring to biodiversity where he stated that "had the council properly taken into consideration the need for upgrading the Access Road, then consideration of biodiversity impacts would have been relevant": at par 6.3 of the report.
Based on his experience as a town planner the use of the Access Road should have been characterised as part of the proposed development: at par 6.15 of report.
In relation to compatibility with agricultural use on the Applicant's land, Mr Grech observes that the Land Use Table objective in the development assessment report (DAR) is blank, at par 6.21 of his report. Based on his site inspection and information he reviewed from a town planning perspective he considered that this was an issue that was not properly taken into account in the DAR, at par 6.24 of his report. While stating he is not an expert on agriculture operations he identified biosecurity issues inter alia at par 6.25 of his report. These matters also arise from par 18 of ground 2 in the summons.
The sections of Mr Grech's report on flooding are reasonably necessary to consider ground 2.
In relation to ground 4, Mr Grech's report on bushfire matters is reasonably necessary in relation to particulars 21(c), (d), and (f). The proposed traffic report is reasonably necessary to address the issues identified in particular 21(a) and (b). The specificity of the proposed traffic evidence is identified sufficiently in Mr Gordon's affidavit.

First Respondent's submissions

DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156 (DEXUS) suggests that the Applicant's motion should be dismissed. Justice Craig identified in relation to a ground alleging failure to adequately consider various matters, similar to ground 2, why expert evidence would not assist in that case at [14], [17]. Fullerton Cove does not assist the Applicant in that no similar ground to a Prasad duty to inquire is raised in the summons and Fullerton Cove was dealing with a different statutory context. In Muswellbrook expert evidence of a specialist mining engineer was permitted in relation to civil enforcement proceedings, which are distinguishable from judicial review.
The summons does not disclose the particulars which justify Mr Grech's report being relevant as none of the specific topics are identified in ground 2. Further, consideration of a council's decision is generally on the basis of the material before the council at the time a decision is made. When the particulars in ground 2 in the summons are considered no expert evidence is needed to resolve these.
When the report of Mr Grech is considered his view of what the Council did is an impermissible review of factual findings.
The pleadings in ground 4 do not give rise to any basis for calling expert evidence. In relation to traffic no basis for traffic expertise in relation to the topics identified is made out on the particulars in ground 4. Nor is the traffic evidence identified with any specificity in the Gordon affidavit at par 4, a requirement identified in DEXUS at [24].

Consideration

The Applicant bears the burden of demonstrating that the direction it seeks ought to be made. The Court of Appeal in Shellharbour held at [35] in considering r 31.19: 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.
This application is being made in judicial review proceedings where the general position in relation to evidence is that the material before the decision-maker is the essential record to be considered.
Considering ground 2, for the reasons given by the First Respondent the Applicant has not established that the evidence of Mr Grech is reasonably necessary for the resolution of the issues identified in ground 2 of the summons.
Firstly, the ground of failing to give proper, genuine and realistic consideration to mandatory relevant considerations (here likely impacts) does not give rise to the need for an expert report that was not before the Council at the time the decision was made, as observed in DEXUS at [17]. I also consider the observations at [19] in DEXUS that the material sought to be adduced slides impermissibly into merits review in identifying 'relevant factual matters' also apply to Mr Grech's report. To similar effect I note Arnold No 6 at [125]: 125 However, it is difficult to see the relevance of material not actually or constructively before the decision-maker where the ground of review is (without more) failure to take account of a mandatory relevant matter or taking account of a prohibited matter: Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539 - 540; approved McCormack v Deputy Commissioner of Taxation Large Business & International [2001] FCA 1700, (2001) 114 FCR 574 at [37]; Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38 at [45] (Pepper J).
I also note Ross v Lane [2021] NSWLEC 61 at [22] is to similar effect. No case where expert evidence has been admitted in relation to a ground such as ground 2 has been identified. Given the nature of the ground no expert evidence not before the Council at the time of making the decision can be reasonably necessary.
Secondly, ground 2 is extracted above in [6] and is particularised in general terms. Considerable reliance was placed by the Applicant on par 17(a) because that referred to the Applicant's submissions made to the Council which apparently refer to the issues of biodiversity impacts, bushfire and flooding, and inconsistency of land uses. That is not apparent on the face of the summons. That document was not placed before the Court. The First Respondent's complaint that the expert evidence does not arise from the particulars in the summons is justified.
Thirdly when the chapeau of par 17 and the particulars in the summons are considered, as the First Respondent submitted, no expert evidence is needed to address these. Particular (a) identifies a matter that can be considered by what is on the Council file, similarly in relation to (b). Particular (c) refers to the Council having information before it and does not require expert evidence. In relation to par 18, that the box for 'objective' in the assessment report, Ex B, is not ticked, is not a sufficient basis to justify expert evidence being adduced. Paragraph 19 alleges material error through the failure to consider likely effects. Once again it is not obvious that expert evidence is necessary for the Court to consider those issues in these judicial review proceedings.
Turning to ground 4, various matters are alleged which purport to establish that the Council's decision was illogical and unreasonable in a Wednesbury sense. As the Applicant submitted, expert evidence has been adduced in some judicial review cases which have alleged such a ground. The particular case pleaded must always be considered in determining if expert evidence is reasonably necessary. "Everything depends upon the grounds of review and the circumstances of the case": Muswellbrook at [42] citing Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at [459].
Considering how it is pleaded, I accept the First Respondent's submissions about why the pleading of ground 4 does not suggest that expert evidence is reasonably necessary. In relation to par 21(a)(i) of the summons the documents referred to can be considered on their face, no expert evidence about these is needed. I note that the development assessment report in Ex B has a substantial section on the topic of access, transport and traffic. Paragraph 21(a)(ii) relating to whether the statement made had any basis can be determined by looking at the material before the Council. Paragraph 21(a)(iii), that the proposed development would not present a significant land use conflict had no basis in the material before the Council, including the Traffic Report, can be determined on the documents also referred to and in any event is not obviously a matter about which the expert evidence sought to be adduced can be of assistance.
Paragraph 21(b) of the summons seeks to attack factual findings and no evidence is needed to argue such matters. This observation applies to subpars (i)-(v), (vii) and (viii).
Paragraph 21(c) of the summons concerns bushfire in relation to which Mr Grech has no identified expertise and is also an impermissible attempt to disagree with factual findings of the Council. Paragraph 21(d) refers to bushfire and the same comments can be made. Paragraph 21(e) refers to a factual matter which does not need an expert report. No expert opinion is needed in relation to the matters of landscaping referred to in par 21(f). Paragraph 21(g) also raises a factual matter. Paragraph 21(h) does not arise from any matter otherwise pleaded and is also a factual matter. Paragraph 21(i) refers to ground 2 matters which I have already considered above.
I also agree with the First Respondent's submission that the topics identified for a traffic expert report in Mr Gordon's affidavit do not specify matters about which expert evidence is needed with sufficient clarity in light of ground 4. Referring to par 4 of that affidavit, the matter in (a) is very general of identifying deficiencies in the traffic impact assessment report, similarly in (b) other information available about visitor numbers, (c) the Council's obligations under s 4.15(1) of the EPA Act, and (d) another development application DA/0387/2021 is referred to and documents related to it. Paragraph 4(e) which refers to the second paragraph of the letter annexed and marked 'B' is completely unclear as to how a traffic consultant's evidence could assist when that paragraph extracted above in [11] is considered.
By way of general observation, the difficulty with Mr Grech's report stems from the instructions he received as set out at par 3 of his report which state: 'I have been requested to provide an opinion from a town planners perspective as to what Council acting reasonably ought to have done in regard to Grounds 2, 3 and 4 of the summons …' Such a free ranging opinion on the very matters which the Court must resolve in judicial review proceedings is very unlikely to be able to assist the Court.
Mr Grech's report in general seeks to make factual findings and form opinions which are essentially a review of the merits of the Council's decision. While the Applicant submitted that Mr Grech's report was directed to his view as a town planner of how the Council failed to follow the correct processes the tenor of his evidence is to give his opinion on why the Council was wrong in its assessment of the DA in the factual conclusions arrived at in a way that addresses the merits of the Council's consideration. That is another reason why the report is impermissible.
In considering whether the admission of expert evidence is reasonably necessary the 'just, quick and cheap' resolution of matters called for by s 56 of the Civil Procedure Act 2005 (NSW) must be borne in mind. The practical consequences of adducing expert evidence for a hearing, which is very likely to result in competing evidence being adduced, should also be considered in weighing up whether leave to adduce expert evidence ought to be granted. If the two expert reports sought were allowed competing evidence is highly likely meaning two sets of competing evidence of very limited utility will have to be considered by the Court, unnecessarily extending proceedings and causing additional costs to be incurred. Contrary to the Applicant's submission that the expert evidence is of limited compass a number of topics are traversed. The impact on the hearing dates is presently unknowable. This is another reason why the expert evidence sought to be relied on will not be permitted.
The Applicant has been unsuccessful in relation to its notice of motion and that will be dismissed. As these are Class 4 proceedings and costs 'follow the event' the Applicant should pay the First Respondent's costs of the notice of motion.

Order

The Court orders: 1. The Applicant's notice of motion dated 19 July 2022 is dismissed. 2. The Applicant is to pay First Respondent's costs of the notice of motion dated 19 July 2022. 3. The matter is listed before the Friday List Judge for directions on 12 August 2022.

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: 12 August 2022

(2011) 189 LGERA 348

(2013) 193 LGERA 222

At a glance

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Judgment (13 paragraphs)

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