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[2026] NSWCA 68
appellant. Appeal allowed. Order 2 made by Pritchard J on 4 December 2025 was set aside. The appellant was granted leave to rely on Dr Stephen Debus’s affidavit affirmed on 30 October 2025. The respondent was...
The Court of Appeal held that an expert report is not automatically inadmissible in judicial review just because some of it evaluates the development itself. Here, the report also explained what further owl-related inquiries could reasonably have been made, especially about light spill affecting a known breeding pair of Powerful Owls. That made the report relevant to the legal challenge. The appeal court therefore set aside the refusal and granted leave to rely on the affidavit. It did not decide whether the Council breached its statutory duty or whether the development approval was legally unreasonable.
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2,421 words · generated 08/10/2026
Fred Caterson Champions Inc, an incorporated association concerned with community access to Fred Caterson Reserve and conservation of its ecology, challenged The Hills Shire Council’s approval of a sports complex at the Reserve. The proposed development comprised three rugby union fields and related infrastructure, including lighting of 100 lux on each field. The Council approved the Review of Environmental Factors and its addendum in 2024 and 2025 respectively [5]-[7].
12 cited instruments linked from this judgment.
The Reserve provides habitat for Powerful Owls, Masked Owls and Sooty Owls, which the judgment records as vulnerable species under the Biodiversity Conservation Act 2016 (NSW) [5]. The association’s Class 4 judicial review challenge included grounds alleging that the Council had failed to consider environmental impacts under s 5.5 of the Environmental Planning and Assessment Act 1979 (NSW). One pleaded concern was whether the Council should have made further inquiries about light spill affecting the owls’ habitat, including feeding and breeding. Another concerned cumulative impacts, including a potential increase in lighting from 100 lux to 500 lux [9]-[10].
The immediate appeal was not the substantive judicial review of the Council’s decision. It concerned an evidentiary ruling made while those proceedings were being prepared. The association sought leave to rely on a report from Dr Stephen Debus, an owl biologist. Pritchard J granted leave for the proceedings to be commenced out of time, but refused leave to rely on the report [11]-[12]. The association appealed that refusal.
A central factual context was that the Council’s ecology material acknowledged Powerful Owls in neighbouring vegetation, but did not specifically examine what the proposed lighting would mean for the known resident breeding pair. The Council’s reports described the owls as occurring and breeding in surrounding vegetation, and Narla had warned that nocturnal threatened species, including Powerful Owls, could be displaced by increased light spill [25]-[30]. The Court of Appeal considered that Dr Debus’s report addressed a relevant question: what further assessment could reasonably have been conducted in light of that information?
The Court allowed the appeal. It set aside the order refusing reliance on the report, granted leave to rely on Dr Debus’s affidavit, and ordered the Council to pay the appeal costs [44]. The Court did not decide whether the Council’s approval was legally invalid, whether s 5.5 had in fact been breached, or whether the Council’s decision was legally unreasonable on the substantive record.
The Court began by identifying the appellate standard. The primary judge had exercised, or purported to exercise, the discretion under UCPR Pt 31 Div 2 concerning expert evidence. For that reason, the ordinary House v The King approach applied to review of the discretionary decision [18]-[19]. That approach recognises that a discretionary decision may be set aside for matters such as an error of principle, a material factual error, consideration of an irrelevant matter, failure to consider a relevant matter, or a result so unreasonable or unjust as to indicate such an error [18].
But the Court distinguished the broad discretionary question from the narrower question actually decisive of the appeal. The primary judge had excluded the report because it was, in substance, a critique of the merits of the Council’s assessment. The Court understood that as a conclusion that the report was irrelevant to the issues in the judicial review [19]-[20]. Whether that conclusion was correct admitted only one answer, so the Court assessed the relevance question directly [19].
The distinction between judicial review and merits review mattered. The primary judge had correctly recognised that the Court in the substantive proceedings would consider whether the Council made its decision lawfully, not whether a court deciding the development application for itself would reach the same result [14]. Expert evidence could not be used simply to persuade the Court that the development assessment was wrong. The Court nevertheless accepted that evidence could be admissible if it showed what inquiries should have been made, and what those inquiries might have revealed [15].
The report contained material about the merits, but it was not limited to that. The Council’s reports recorded that Powerful Owls were known to occur and breed in neighbouring vegetation. Narla’s material also said that increased light spill could displace nocturnal threatened species, and recommended directing lights towards the site and considering light shields if spill reached adjoining vegetation [28]-[30]. The Court noted that none of Narla’s reports specifically dealt with the effect of the lighting on the Powerful Owl [28].
Dr Debus’s report, as the Court understood it, identified the need for a more detailed assessment given the known breeding pair. It addressed questions including the effect of light spill on the known nest and other available nest trees, the pair’s foraging habitat and the prey available within its foraging range [31]. Those were not merely opinions about whether the sports complex was desirable. They identified the nature and reasonableness of further inquiries that might bear on the Council’s statutory consideration duty. That made the report relevant, notwithstanding that other passages assessed the development’s merits [22], [31]-[32].
The Court then considered whether it should decide admissibility itself or send the issue back to the Land and Environment Court. It preferred deciding the matter itself to avoid another hearing and the possibility of further appeals [34]. In describing the discretion, it identified two central considerations: the report’s significance to the issues and the costs of admitting it, in time and money [35].
The report had practical value because it gave substance to the proposed argument about further investigation. Without it, the court hearing the case would have no expert evidence about what inquiries an expert might undertake [40]. The additional burden appeared limited: the issue was narrow, the report was already prepared, and the Council had retained Narla, which had detailed knowledge of the subject. The Court considered it reasonable to conclude that admission would not substantially increase hearing time or costs, or cause substantial delay [38]-[41]. It therefore granted leave [42].
The judgment applied the version of s 5.5(1) of the Environmental Planning and Assessment Act that was in force at the relevant time for the Council’s decision. That version required a determining authority, when considering an activity, to examine and take into account “to the fullest extent possible” all matters affecting or likely to affect the environment by reason of the activity [7]-[8]. The appeal proceeded on the basis that this was the applicable obligation [8].
The judgment records a statutory amendment effective from 21 March 2026. The Environmental Planning and Assessment Amendment (Planning System Reforms) Act 2025 (NSW) removed the phrase “to the fullest extent possible” from s 5.5 and added a new s 5.5(2) [8]. The Court did not analyse how the amended provision would apply to other decisions. Its reasoning should therefore be read in the context of the former text and the appeal’s express premise about which version governed.
For expert evidence, the judgment applies UCPR Pt 31 Div 2, including its purposes of controlling expert evidence and restricting it to evidence reasonably required to resolve proceedings, as set out in the primary judgment [13]. The Court explains that the discretion is not a licence to introduce material irrelevant to the legal issues. However, evidence may remain relevant where it identifies possible inquiries that a decision-maker should reasonably have made, even if the report also contains merits-oriented material [31]-[32].
The decision does not establish that an expert report about environmental impacts must be admitted in every judicial review case. The assessment remains tied to the issues pleaded and the report’s actual contents. The Court examined this report alongside the Council’s ecology material and its relevance to the asserted inquiry about light spill and the owl pair [28]-[31]. It also weighed utility against likely time and cost [35]-[42].
Nor did the appeal decide the substantive legal standard under s 5.5 in a way that resolved the association’s challenge. The Court’s holding concerned relevance and leave to rely on evidence. The substantive court still had to determine whether the Council’s consideration was legally adequate and whether further inquiry was required in the circumstances. Paragraph 36 describes the appellant’s proposed case; it is not a finding that the Council had breached its duty.
At [19], the Court states that the question whether the report was irrelevant “necessarily” had only one answer. In plain English, the Court did not treat the relevance question as a matter on which the primary judge could reach any reasonable conclusion. It decided that the legal character of the report had been wrongly assessed.
At [31], the Court identifies the report’s relevant contribution: Dr Debus expressed opinions on the “nature and reasonableness of additional inquiries that ought to have been undertaken”. This is the central evidentiary point. A report may assist a judicial review court not by deciding whether a proposal is good or bad, but by explaining what information-gathering steps could reasonably have been taken to assess its effects.
At [40], the Court says the report “helps to give content” to the argument and provides assistance in deciding whether further inquiries were required. The translation is that the report did not itself prove the Council had acted unlawfully. Instead, it equipped the court with expert evidence against which to assess the argument that more investigation was required.
At [43], the Court recognises that some of the report went to the merits and was therefore irrelevant to the judicial review issues. It lists possible approaches: exclude the merits-only parts, impose a use restriction under s 136 of the Evidence Act 1995 (NSW), or leave the use of that material to the judge hearing the substantive case. The Court deliberately left that choice open. Granting leave to rely on the affidavit did not mean every statement in it had to be accepted or used for every purpose.
The judgment is most directly relevant where a party challenges an administrative or statutory environmental decision and proposes expert evidence about what inquiries the decision-maker should have undertaken. The key features here were a statutory duty to examine environmental effects, existing material indicating the presence of a vulnerable species, and an asserted gap in the assessment of a particular impact: light spill on a known breeding pair [7], [28]-[31].
The report’s connection to a concrete information gap was important. The Council’s reports acknowledged Powerful Owls in nearby vegetation and warned of possible displacement through light spill, but did not specifically assess the lighting’s effect on the known pair [28]-[30]. Dr Debus identified possible inquiries about nest locations, foraging areas, prey and alternative nesting sites [31], [36]. The decision therefore supports considering whether an expert report assists the court in assessing the reasonableness of an asserted omission, rather than treating all expert evidence as a merits challenge.
The case also concerns the practical case-management question under UCPR Pt 31 Div 2. The report had been prepared, the issue was narrow, the opposing party already had an expert with relevant knowledge, and the estimated additional hearing burden was limited [38]-[41]. These facts informed the Court’s conclusion on the discretion. A different report, broader issues, greater expense, or substantial delay could require a different evaluation; the judgment does not determine those hypothetical situations.
The precedent does not mean that naming an environmental impact is sufficient to establish that a decision-maker had to investigate it. The Court granted leave to use evidence relevant to that question, but did not resolve the substantive question. It also did not find that light spill would in fact displace the owls or damage their breeding success.
The supplied judgment contains no decisions after 22 April 2026 discussing how later courts treated this case. The judgment itself is identified as the principal judgment, and the text provides no subsequent judicial history. It is therefore not possible, on this source alone, to say whether later courts have followed, distinguished or limited it.
Within this judgment, the Court draws on earlier authorities for separate purposes. It applies House v The King to the review of a discretionary decision and refers to Minister for Immigration and Border Protection v SZVFW when explaining how to distinguish the House standard from correctness review [18]-[19]. It refers to Natural Grass at Norman Griffiths Inc v Ku-ring-gai Council in discussing the nature of the s 5.5 inquiry and the role of reasonableness [14], [32]. It also refers to Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) in the context of expert evidence about inquiries that ought to have been made [15], [32].
Those citations show the authorities considered by this Court, not later treatment of the present decision. The judgment’s contribution is its application of those principles to the particular report and record before it: a report partly concerned with merits, but also identifying additional inquiries relevant to the statutory decision-making process.
The substantive judicial review remained unresolved. The Court did not decide whether the Council complied with s 5.5(1), whether its assessment of the owls was legally reasonable, or whether the approval should be set aside. Those questions were for the Land and Environment Court in the underlying proceedings.
The treatment of the merits-oriented parts of Dr Debus’s report was also left open. The Court identified exclusion, a restriction under s 136 of the Evidence Act, or admission with the use of the material left to the trial judge as possible approaches [43]. It did not select among them or impose a limitation in its orders.
The Court did not decide what degree of environmental inquiry would be required in other circumstances. Its ruling was tied to the known breeding pair, the available Council reports, and the specific omission concerning lighting. Nor did it decide how the amended s 5.5, effective from 21 March 2026, would affect future cases, because the appeal proceeded on the basis that the earlier text applied [8].
Finally, the Court did not determine what the substantive evidence would ultimately establish about light spill, habitat, prey or breeding. Its conclusion was that Dr Debus’s opinions on possible further inquiries were relevant and could assist the hearing court. Admissibility was not a finding that those opinions were correct or that the Council’s decision was legally invalid.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Fred Caterson Champions Inc t/as Fred Caterson Champions v The Hills Shire Council [2026] NSWCA 68
Hearing dates: 13 April 2026
Date of orders: 22 April 2026
Decision date: 22 April 2026
Before: Leeming JA at [1]
Adamson JA at [2]
Ball JA at [3]
Decision: (1) Appeal allowed;
(2) Order 2 of the orders made on 4 December 2025 by Pritchard J in the Land and Environment Court below be set aside;
(3) The appellant is granted leave to rely on the affidavit of Dr Stephen Debus affirmed on 30 October 2025;
(4) The respondent is to pay the appellant’s costs of the appeal (including the costs of the application for leave to appeal).
Catchwords: APPEALS — expert evidence — Class 4 proceedings in the Land and Environment Court — challenge to approval of development of sports complex at Fred Caterson Reserve — asserted failure to consider environmental impact of light spill on vulnerable owl species including Powerful Owls — where primary judge refused leave for the appellant to rely on evidence from an owl biologist — whether evidence relevant to issues to be determined by the Court
Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Biodiversity Conservation Act 2016 (NSW) s 4.2. Sch 1 Pt 3, Div 1
Environmental Planning and Assessment Act 1979 (NSW) s 5.5
Environmental Planning and Assessment Amendment (Planning System Reforms) Act 2025 (NSW)
Environmental Planning and Assessment Regulation 2021 (NSW) rr 171, 172(1)(o)
Evidence Act 1995 (NSW) s 136
Land and Environment Court Act 1979 (NSW) s 58(3)(a)
State Environmental Planning Policy (Transport and Infrastructure) 2021 cl 2.73(3)
Uniform Civil Procedure Rules 2005 (NSW) rr 31.17, 31.19, 31.20, 59.10(2), Pt 31 Div 2
Cases Cited: Fred Caterson Champions Inc trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2026] NSWCA 24
Fred Caterson Champions Inc. trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2025] NSWLEC 139
Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38
House v The King (1936) 55 CLR 499; [1936] HCA 40
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Natural Grass at Norman Griffiths Inc v Ku-ring-gai Council [2023] NSWLEC 84
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Category: Principal judgment
Parties: Fred Caterson Champions Inc t/as Fred Caterson Champions (Appellant)
The Hills Shire Council (Respondent)
Representation: Counsel:
M Painter SC with N Hammond and C Collett (Appellant)
KC Morgan SC with IJ King (Respondent)
Solicitors:
Stringybark Legal (Appellant)
Matthews Folbigg Pty Ltd (Respondent)
File Number(s): 2026/41170
Publication restriction: None
[This headnote is not to be read as part of the judgment]
The appellant, Fred Caterson Champions Inc, is an incorporated association, the objectives of which are to maintain community access to the Fred Caterson Reserve in Castle Hill (the Reserve), while preserving its endangered ecological bushland, flora and fauna. That fauna includes the Powerful Owl, Masked Owl, and Sooty Owl (the Owls), each of which are listed as vulnerable species under the Biodiversity Conservation Act 2016 (NSW).
The appellant commenced Class 4 proceedings in the Land and Environment Court of NSW seeking judicial review of a decision by The Hills Shire Council (the Council) to approve the development of a sports complex at the Reserve comprising three rugby union fields and related infrastructure, including lighting of 100 lux on each field (the Development). Part of the appellant’s challenge is that the Council breached its duty to consider the environmental impact of the Development on the Owls in accordance with s 5.5 of the Environmental Planning and Assessment Act 1979 (NSW), by failing to:
The appellant sought leave, pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), to rely upon a report dated 29 October 2025 from Dr Debus, owl biologist.
The primary judge refused leave to rely on Dr Debus’s report. The primary judge accepted that expert evidence could be admissible in judicial review proceedings, like those brought by the appellant, as evidence of what inquiries ought to have been made, but considered that the report of Dr Debus provided an assessment of the merits of the Development rather than identifying any further inquiries that a reasonable decision maker ought to have made.
The Court (Ball JA, Leeming and Adamson JJA agreeing) held, allowing the appeal:
(1) The primary judge applied or purported to apply UCPR Pt 31 Div 2, which gives the court a discretion to refuse to admit expert evidence taking account of the objectives set out in UCPR r 31.17. For that reason, the applicable standard of review is that in House v The King: [18]-[19] (Ball JA); [1] (Leeming JA); [2] (Adamson JA). However, in this case the primary judge excluded the evidence because she found it was irrelevant. The question, therefore, was whether she made an error of principle in doing so. That question admitted only one answer.
House v The King (1936) 55 CLR 499; [1936] HCA 40; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, cited.
(2) There was clear evidence before the Council from observations of Birdlife Australia that there are a pair of resident breeding Powerful Owls in the Reserve near the edge of the Reserve where the Development is to take place. None of the ecological assessment reports relied on by the Council deals specifically with the effect that the lighting would have on that pair. In his report, Dr Debus (a) expresses the opinion that, knowing of the existence of the resident breeding pair of Powerful Owls, it would have been reasonable to conduct a more detailed assessment of the likely effect of the Development on that pair, and (b) expresses opinions on the nature and reasonableness of additional inquiries that ought to have been undertaken. The report was, therefore, relevant and the primary judge was wrong to exclude it: [28], [30]-[31] (Ball JA); [1] (Leeming JA); [2] (Adamson JA).
LEEMING JA: I agree with Ball JA.
ADAMSON JA: I agree with Ball JA.
BALL JA: The appellant, Fred Caterson Champions Inc, appeals against an order made by the primary judge (Pritchard J) on 4 December 2025 refusing leave for the appellant to rely on expert evidence of Dr Stephen Debus, an owl biologist, in Class 4 proceedings against The Hills Shire Council (the Council) in the Land and Environment Court of New South Wales (the LEC): see Fred Caterson Champions Inc. trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2025] NSWLEC 139 (Primary Judgment or PJ).
Leave to appeal, required by s 58(3)(a) of the Land and Environment Court Act 1979 (NSW), was granted by Ward P and Harrison AJA on 10 March 2026: see Fred Caterson Champions Inc trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2026] NSWCA 24.
The appellant is an incorporated association, the objectives of which are to maintain community access to the Fred Caterson Reserve in Castle Hill (the Reserve), while preserving its endangered ecological bushland, flora and fauna. That fauna includes the Powerful Owl, Masked Owl, and Sooty Owl (the Owls), each of which are listed as vulnerable species under the Biodiversity Conservation Act 2016 (NSW): see s 4.2 and Sch 1, Pt 3, Div 1 of that Act.
On 9 May 2025, the Council approved the proposed development of a sports complex at the Reserve comprising three rugby union fields and related infrastructure, including lighting of 100 lux on each playing field (the Development). It did so by approving on 30 September 2024 a Review of Environmental Factors (REF) that had been prepared for the Council by Biosis Pty Ltd and by approving on 9 May 2025 an Addendum Review of Environmental Factors (Addendum REF) also prepared by Biosis (the assessment of development of recreational facilities on Crown land of which the Council is the manager has proceeded on the basis that it falls within cl 2.73(3) of State Environmental Planning Policy (Transport and Infrastructure) 2021 and may be carried out without consent).
By summons filed in the LEC on 4 September 2025 and amended on 10 October 2025, the appellant seeks judicial review of the decisions to approve the REF and Addendum REF. Part of the appellant’s challenge, reflected in grounds 3 and 4 in the amended summons, is that the Council breached its duty to consider the environmental impact of the Development in accordance with s 5.5 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). At the relevant time, s 5.5(1) of the EPA Act provided:
5.5 Duty to consider environmental impact
(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
Section 5.5(1) was amended with effect from 21 March 2026 to remove the phrase “to the fullest extent possible” and a new s 5.5(2) was added: see Environmental Planning and Assessment Amendment (Planning System Reforms) Act 2025 (NSW), sch 1[113] and [114]. The appeal proceeded on the basis that the relevant obligation was the one that existed before the amendment.
Ground 3 alleges that the Council breached its duty under s 5.5 of the EPA Act by failing to make inquiries as to “the impact on the Owls being displaced from their habitat (including impacts on their feeding and breeding habits) by reason of increases in light spill associated with the [Development]”, and that this failure was legally unreasonable.
Ground 4 alleges that, in breach of s 5.5 of the EPA Act, the Council failed to take into account the cumulative impact of the Development with other existing or likely future activities at the Reserve, as required by reg 172(1)(o) of the Environmental Planning and Assessment Regulation 2021 (NSW). The likely future activity relied upon by the appellant was a potential increase in lighting from 100 lux to 500 lux as part of negotiations between the Council and the Eastwood Rugby Club.
By notice of motion filed on 31 October 2025, the appellant sought leave to commence the proceedings out of time pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and to rely upon a report dated 29 October 2025 from Dr Debus pursuant to UCPR r 31.19 (which is set out below).
On 4 December 2025, the primary judge granted leave to the appellant to commence proceedings out of time but refused leave to rely on Dr Debus’s report. The appellant appeals against that refusal.
31.17 Main purposes of Division
The main purposes of this Division are as follows—
(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,
(c) to avoid unnecessary costs associated with parties to proceedings retaining different experts,
(d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,
(e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,
(f) to declare the duty of an expert witness in relation to the court and the parties to proceedings.
…
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) …
31.20 Court may give directions regarding expert witnesses
(1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings.
(2) Directions under this rule may include any of the following:
(a) a direction as to the time for service of experts’ reports,
(b) a direction that expert evidence may not be adduced on a specified issue,
(c) a direction that expert evidence may not be adduced on a specified issue except by leave of the court,
(d) a direction that expert evidence may be adduced on specified issues only,
(e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue,
(f) a direction providing for the engagement and instruction of a parties’ single expert in relation to a specified issue,
(g) a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue,
(h) a direction requiring experts in relation to the same issue to confer, either before or after preparing experts’ reports in relation to a specified issue,
(i) any other direction that may assist an expert in the exercise of the expert’s functions,
(j) a direction that an expert who has prepared more than one expert’s report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.
[47] The duty conferred by s 5.5 of the [EPA Act] is to be defined by the statutory construction of that section having regard to the text and context of the provision. As has been accepted, the duty is not at large but is tempered by the concept of reasonableness. It is not open on such language, where the duty relates to taking a matter into account to the fullest extent reasonably possible, to suggest that in all circumstances a decision-maker has a duty to inquire. What the statutory language requires is an assessment as to whether the duty has been discharged having regard to the particular activity to which the decision-making relates, and the quality of the decision-making undertaken.
[48] The obiter in Fullerton Cove [a reference to the decision of Pepper J in Fullerton Cove Residents Action Group Inc v Dart Energy Ltd and Another (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38 (Fullerton)] does not contend that there is a general duty to inquire but rather identifies that the extent and scope of the consideration will vary depending upon the activity as proposed and the likely environmental impacts of undertaking such activity. However, it also identifies that if there is asserted some duty to inquire such a contention must be determined in the context of the statutory language. Namely, where such inquiry was not made was such “failure” outside the inherent constraint on the duty to consider to the fullest extent of “reasonably” possible. This approach is consistent with the decision in Prasad [Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155] and the statutory language. I do not consider the obiter to have changed the otherwise accepted position as identified in Prasad and as identified in the statutory language of s 5.5 of the [EPA Act] that the performance of the duty is activity-based and one that is to be assessed in the context of whether the examination of the likely environmental impacts was legally reasonable.
[49] Whilst the Applicant has not pleaded Wednesbury unreasonableness as an express ground of challenge, the context of the statutory language imports the concept of reasonableness. In the context of judicial review such a consideration requires an assessment as to whether the asserted breach of any duty to inquire relates to whether or not such information was within the scope of being “reasonably possible” – or to put it another way, whether it was unreasonable in the legal sense not to make the asserted inquiry.
[emphasis supplied by primary judge]
[144] … If this is so, expert or other extraneous evidence may be admissible to show what inquiries ought to have been made as a precursor to the examination exercise, and if they had been made, what those inquires would have revealed.
[145] In formulating the duty contained in s 111 in this way it must be emphasised that this does not provide unfettered licence to litigants to adduce expert evidence in a bid to persuade the Court that the decision arrived at by a determining authority was wrong or, alternatively, to invite the Court to substitute its own decision for that of the decision-maker. An inquiry by the Court into whether a determining authority has complied with s 111 must not be permitted to turn into an examination of the merits of the decision.
[33] The evidence of Dr Debus sought to be relied on to establish a duty to inquire in the circumstances of this case was not before the decision-maker. To the extent that a challenge is made on the basis that the decision-maker should, acting reasonably, have made some additional inquiries, expert evidence as to what those inquiries should have been and what the outcome of those inquiries would have been may, as Pepper J held in [Fullerton], in some cases, be admissible. In this case, however, I consider that Dr Debus’ evidence is in effect a critique of the merits of the assessment made by the experts retained by Council.
[34] Council obtained ecological and arboricultural reports to support the REF, including Narla 2023, Narla 2024, Rain Tree Consulting 2023 and Rain Tree Consulting 2024. The REF identified by reference to Narla’s assessment that the Powerful Owl, Sooty Owl and Masked Owl were threatened species occurring within and adjacent to the site. Table 7 of the REF considered the potential for impact of the activity on the Powerful Owl, Sooty Owl and Masked Owl, concluding that the impact will be minor/minimal. The Addendum REF likewise referred to the Powerful Owl, Masked Owl and Sooty Owl, noting that no breeding hollows were identified in the site for the Powerful Owl and that breeding habitat for the Masked Owl and Sooty Owl was not present within the site. Ultimately, I consider that Dr Debus’ report provides an assessment of the merits of the activity, and not an identification of any reasonable inquiry that a reasonable decision maker would make over and above considering the Narla 2023, Narla 2024, Rain Tree Consulting 2023 and Rain Tree Consulting 2024 reports referred to in the REF and the Addendum REF. I note the submission made at the hearing by Ms King for Council to the effect that the letter of instruction was “carefully drafted with an eye to permissible uses of expert evidence in Class 4 proceedings having regard to Duggan J in Natural Grass”.
[35] The applicant has failed to demonstrate that contrary to s 5.5 of the EPA Act, Council failed to make an inquiry to enable it to take into account to the fullest extent reasonably possible the impacts of the activity upon the environment.
1 The primary judge erred by precluding the appellant from adducing the expert evidence in support of its pleaded case that the Council had breached its statutory duty to examine to the fullest extent possible all matters affecting or likely to affect the Powerful Owl's habitat surrounding the playing fields by reason of the proposed lighting of the rugby fields, in circumstances where that evidence specifically identified the inquiries that should have been made by the Council and, if they had been made, the adverse impacts on the Powerful Owl habitat from the proposed activity.
2 In refusing to allow expert evidence on the basis that the evidence of Dr Debus was a “critique of the merits”, the primary judge erred in:
(a) failing to fully and properly consider the report of Dr Debus dated 29 October 2025 or the written and oral submissions of the [appellant] regarding the nature of the report; and
(b) failing to give reasons as to why the evidence of Dr Debus was an impermissible assessment of the merits rather than an identification of any reasonable inquiry that a reasonable decision maker would make over and above the reports commissioned and considered by the Council.
3 The primary judge erred in taking account of an irrelevant consideration, because in holding that “[the appellant] has failed to demonstrate that contrary to s 5.5 of the [EPA Act], Council failed to make an inquiry to enable it to take into account to the fullest extent possible the impacts of the activity upon the environment” … the primary judge made a finding which was one to be made in the substantive proceedings, having regard to all of the evidence, including expert evidence, if admitted, and not a finding which was relevant to the application for leave to adduce expert evidence.
4 The primary judge erred in failing to consider and make findings on the alternative pleaded basis on which leave to admit expert evidence was sought, namely that the decision of the Council to approve the activity was legally unreasonable.
whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies.
In the present case, the primary judge applied or purported to apply UCPR Pt 31 Div 2, which gives the Court a discretion to refuse to admit expert evidence taking account of the objectives set out in UCPR r 31.17. For that reason, the standard of review in House v The King applies. However, the primary judge concluded that Dr Debus’s report ought not to be admitted because the report was “in effect a critique of the merits of the assessment made by the experts retained by Council” (PJ[33]). That conclusion was essentially a conclusion that the report was irrelevant to the issues to be determined by the Court. As the primary judge had emphasised earlier in her judgment, it was not appropriate on an application for judicial review for the Court “to stray into a consideration of the merits” (PJ[31]). The question, therefore, is whether the primary judge made an error of principle in concluding that the report was irrelevant. Necessarily, that question has only one answer. Grounds 1 and 2 of the notice of appeal essentially raise the issue whether the answer given by the primary judge to that question was correct.
The primary judge explains that the Council obtained expert reports from Narla and Raintree Consulting which addressed the effect of the Development on the Owls and on the basis of which the REF concluded that the impact of the Development on them would be “minor/minimal” (PJ[34]). Her Honour said, without explaining why, that she considered that Dr Debus’s report “provides an assessment of the merits of the [Development], and not an identification of any reasonable inquiry that a reasonable decision maker would make over and above” the enquiries undertaken by the experts retained by Council.
No criticism was made of her Honour’s judgment on the basis that her Honour failed to give adequate reasons for her decision. That is understandable in a context where the primary issue before her Honour was whether an extension of time should be granted and the matter was one of some urgency. Instead, the focus of the submissions before this Court was on whether the conclusion reached by the primary judge could be supported by an analysis of the reports obtained by Council and Dr Debus’s report, not on whether the primary judge’s reasoning was correct.
Although substantial parts of Dr Debus’s report do provide an assessment of the merits of the Development, an examination of the report reveals that, contrary to the conclusions of the primary judge and the submissions of the Council, the report is also relevant to the inquiries that ought to have been undertaken.
A summary of Dr Debus’s conclusions can be found in the following paragraphs of his report:
4. As I seek to demonstrate in this report, the main point of contention with respect to owls is the true status of the Powerful Owl at [the Reserve], and therefore the adequacy of the ecology reports and REF, on which the [Council’s] determination to approve the [Development] was based. The ecology assessment (Narla 2024) failed to detect the Powerful Owl in the forested parts of [the Reserve], including the former pony club site (together, the Subject Site), and erroneously concluded that the Subject Site is only “potential breeding habitat” for the Powerful Owl.
5. However, there is a resident breeding pair of Powerful Owls on the Subject Site, with known nest trees in forest near the edge of the former pony club site (further details below at Paragraphs 7a, 10 and 13). Given that a total of 396 trees, including hollow-bearing trees which are critical resources for the Powerful Owl and its prey as nest, roost or den sites, are to be removed for the proposal’s footprint (Raintree Consulting 2023, 2024), in my opinion a more diligent assessment of the impact of the [Development] on the Powerful Owl is required. Likely impacts include, but are not limited to, removal of foraging and breeding habitat, disturbance to the Powerful Owl’s nest site(s), and light spill into the Powerful Owl’s foraging and breeding habitat (further discussion below at Paragraphs 7b,c,d,e and 11). The Narla (2024) claim that the number of hollow-bearing and other trees to be removed is negligible and/or will not have an effect on the Owls, without identifying the specific trees known to be used by the Owls as nest trees, is therefore dubious and cannot be confidently asserted. Some of the Powerful Owl records fall in the area around the pony club that is slated to be cleared (Figure 1b, cf. Figure 2 of Biosis 2024). [footnote omitted]
Powerful Owls nest in large tree hollows (at least 0.5 m deep), in large eucalypts (diameter at breast height of 80-240 cm) that are at least 150 years old. Seven (7) suitable hollows are proposed to be removed as part of the proposed activity.
Minimal impact to potential foraging habitat given the mobility of this species and the large areas continuing to exist surrounding the Subject Site and greater locality. Minor impact to potential breeding habitat given the removal of hollows. Numerous suitable hollows are present and will remain immediately surrounding the Subject Site. This species was not identified during any of the site assessments however is known to occur and breed within neighbouring vegetation.
The proposed works will incur minimal impacts to potential foraging habitat given the mobility of the species and the vegetated areas to be retained surrounding the study area. There will be minor impacts to potential breeding habitat due to the removal of hollow bearing trees. This species was not identified during the site assessments, however is known to occur and breed within the surrounding vegetated areas.
The conclusions of the July 2024 report were largely repeated in Narla’s final Flora and Fauna Assessment Report issued in April 2025.
None of Narla’s reports deals specifically with the effect that the lighting would have on the Powerful Owl. In an Ecological Constraints Assessment Report prepared in May 2023, Narla said under the heading “Light Spill”:
All lighting proposed for any future development should aim to minimise light spill into adjoining vegetated areas as much as possible. The areas surrounding the property are known to provide habitat to several threatened nocturnal species such as Powerful Owls, which could be displaced by increases in light spill.
All lights associated with the proposed activity are to be placed and directed facing the Subject Site, to minimise light spill into the adjacent reserve and vegetation. If light spill is encroaching into the adjoining vegetation methods are to be explored to minimise this as much as possible such as the installation of light shields.
As Dr Debus observed, there was clear evidence before the Council from observations of Birdlife Australia that there are a pair of resident breeding Powerful Owls in the Reserve near the edge of the Subject Property. That evidence appears to be the basis of Narla’s statement in the July 2024 Report that “[t]his species … is known to occur and breed within the neighbouring vegetation”.
In that context, Dr Debus’s report relevantly makes two points. First, Dr Debus expresses the opinion that, knowing of the existence of the resident breeding pair of Powerful Owls, it would have been reasonable to conduct a more detailed assessment of the likely effect of the Development on that pair. Second, he expresses the opinion that any such assessment would need to include an assessment of the impact of light spill on the foraging and breeding habitat of that pair and that that assessment had not been undertaken “in the ecology reports”. According to him, that assessment would include an assessment of the extent to which light spill would affect the current known nest of the pair and other available nest trees for the pair. It would also include an assessment of the extent to which the light spill would affect potential prey in the foraging range from those nests. To that extent at least, Dr Debus expresses opinions on the nature and reasonableness of additional inquiries that ought to have been undertaken. His report was, therefore, relevant and the primary judge was wrong to exclude it because it was not.
In view of that conclusion, it is not necessary to deal with grounds 3 and 4 of the notice of appeal in any detail. As the primary judge recognised when quoting from the decision of Duggan J in Natural Grass, the nature of the issue raised by s 5.5 of the EPA Act imports the concept of reasonableness and necessarily raises the question whether it was unreasonable in the legal sense not to make the asserted inquiry. In that context, her Honour should be understood as dealing both with the question whether the Council had fulfilled its statutory obligation and with the question whether its decision was unreasonable in the legal sense. For that reason, ground 4 does not raise any additional error on the part of the primary judge.
Ground 3 takes issue with PJ[35]. Read literally, it may be taken as an independent reason for rejecting Dr Debus’s report; and if it is read in that way it suffers from the problem identified in ground 3. Read in that way, it also appears to resolve an ultimate issue in the case when deciding whether to grant leave to admit evidence. However, in context a fairer reading of the paragraph is that it is a summary of the conclusions stated in PJ[33]-[34]. Read in that way, ground 3 does not arise.
It follows from what has been said that the order made by the primary judge rejecting Dr Debus’s report should be set aside. The question remains whether this Court should refer the matter back to the primary judge to determine the issue in accordance with its judgment or whether this Court should determine the question of admissibility itself. If possible, the latter course is clearly preferable, since it avoids any further hearing of the issue in the court below and obviates the risk of further appeals.
The discretion conferred by UCPR Pt 31 Div 2 primarily requires a court to consider two matters. The first is the significance of the expert evidence to the issues to be determined in the case. The second is the costs (in terms of both time and money) of admitting the evidence.
In considering the first question, it is important to bear in mind the issue to which Dr Debus’s report is relevant. That issue is whether the Council complied with its obligation under s 5.5(1) of the EPA Act to examine and to take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity (that is, the Development) and whether having regard to that obligation it acted unreasonably in failing to make further inquiries concerning the effect of the Development on the pair of breeding Powerful Owls that is located near the Development. It is apparent from its amended summons filed on 10 October 2025 and the submissions made to this Court that the case that the appellant seeks to advance at the hearing before the LEC is that the Council did not comply with its obligation, and acted unreasonably, because acting reasonably it would have sought further information concerning (1) the precise location of the breeding pair’s nest; (2) the foraging range from that nest; (3) the extent to which light spill from the Development at night would affect the nest and the area falling within the foraging range (and therefore the available prey in that area); and (4) the availability of alternative nesting sites for the pair and the extent to which light spill would affect those sites and the areas falling within the foraging range of them.
This Court is clearly in a position to consider the significance of Dr Debus’s report to that question, since it has the report and the other material that was before the Council.
As to the second question, there is limited information before this Court on the likely consequences of admitting the report. During the hearing before this Court, Ms Painter SC, who appeared for the appellant, suggested that admission of the report “might add an hour or two, or maybe half a day” to the hearing. Ms Morgan SC, who appeared for the Council indicated that the Council had not yet decided whether it would seek leave to provide a report in reply to Dr Debus’s report if his report was admitted. There is no information that any of the opinions in Dr Debus’s report are controversial, or, if they are, the extent of that controversy. There is also no information before the Court concerning the likely cost of obtaining a report in reply.
As I have pointed out, and as the primary judge recognised, Dr Debus’s report does contain material that goes to the merits of the case and which therefore is irrelevant. There is a question of how to deal with that material. One way is to seek to exclude material in the report that is only relevant to the merits of the case, although that approach is likely to lead to further disputes which will take time and costs to resolve. A second possibility is for the court to make an order under s 136 of the Evidence Act 1995 (NSW) limiting the use that can be made of the report. A third possibility is to admit the report without limitation, leaving it to the judge hearing the matter when preparing her final judgment to determine what use if any should be made of the report. What course is appropriate is a matter that should be left to the judge hearing the matter. Much will depend on the attitude taken by the Council and whether and if so how it seeks to respond to Dr Debus’s report. The orders I propose are not intended to place any restrictions on the judge hearing the matter in that regard.
The orders I propose are:
Appeal allowed;
Order 2 of the orders made on 4 December 2025 by Pritchard J in the Land and Environment Court be set aside;
The appellant is granted leave to rely on the affidavit of Dr Stephen Debus affirmed on 30 October 2025;
The respondent is to pay the appellant’s costs of the appeal (including the costs of the application for leave to appeal).
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Incorrect numbering in Headnote.
Fred Caterson Champions Inc t/as Fred Caterson Champions
The Hills Shire Council
Appeal allowed. Order 2 made by Pritchard J on 4 December 2025 was set aside. The appellant was granted leave to rely on Dr Stephen Debus’s affidavit affirmed on 30 October 2025. The respondent was ordered to pay the appellant’s appeal costs, including the costs of the application for leave to appeal (at [44]).
Notwithstanding the absence of evidence, in my opinion, this Court is able to determine the question. At the time the issue arose before the LEC, neither party sought to lead evidence concerning the consequences of admitting Dr Debus’s report. There is no reason to think that they would do so if the issue were referred back to the LEC. The expert evidence in chief on which the appellant seeks to rely has, of course, been prepared and its precise scope is known. The Court knows that the Council has retained an expert (Narla) that already has a detailed knowledge of the case, so that the Court has some understanding of the burden that will be placed on the Council if the evidence is admitted.
In my opinion, Dr Debus’s report ought to be admitted. It was suggested during the course of argument that the report served no utility because the argument that the appellant seeks to advance at the hearing can be advanced in the absence of the report. No doubt, some argument concerning the need for further investigation of the effect of the Development on the pair of breeding Powerful Owls could be advanced on the basis of the material already before the Court. However, Dr Debus’s report helps to give content to the argument and in doing so will provide assistance to the Court hearing the matter in determining whether the additional inquiries that the appellant submits should have been undertaken were required by s 5.5(1) of the EPA Act and are necessary in order to satisfy the Council’s obligation not to act unreasonably (in the legal sense). Without the report, the Court would have no evidence before it about what inquiries an expert might undertake.
Obviously, the expert evidence the appellant seeks to rely on has already been served, with the consequence that the scope of that evidence is clear. The issue is a narrow one. The Council has retained an expert (Narla) who already plainly has a detailed knowledge of the issue and would be in a position to reply to Dr Debus’s report insofar as it is relevant without the need for extensive work if the Council chooses to serve expert evidence in reply. Consequently, it is reasonable to conclude that the admission of Dr Debus’s report will not add substantially to the hearing time or impose substantial additional costs on the Council. Nor is it likely to cause a substantial delay in the hearing of the case.
Taking those matters into account, I have concluded that the report of Dr Debus should be admitted into evidence.
(2013) 195 LGERA 229
(1936) 55 CLR 499
(2018) 264 CLR 541
(1979) 142 CLR 531
(1985) 6 FCR 155
(1979) 142 CLR 53