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Cases Cited: Fullerton Cove Residents Action Group Inc v Dart Energy Ltd and Another (No 2) (2013) 195 LGERA 229; [2013] NSWLEC 38
Natural Grass at Norman Griffiths Inc v Ku-ring-gai Council [2023] NSWLEC 84
Palm Beach Protection Group Incorporated v Northern Beaches Council (2020) 250 LGERA 212
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

Category: Procedural rulings

Parties: Fred Caterson Champions Inc. (Applicant)
The Hills Shire Council (Respondent)

Representation: Counsel: C Collett (Applicant)
I King (Respondent)
Solicitors: James Ryan, Stringybark Legal (Applicant)
Matthews Folbigg Lawyers (Respondent)

File Number(s): 2025/00340555-002

JUDGMENT

Introduction

1. On 4 September 2025, Fred Caterson Champions Inc. trading as Fred Caterson Champions (the applicant) commenced proceedings by way of summons in Class 4 of the Court’s jurisdiction against The Hills Shire Council trading as The Hills Shire Council (the respondent) (Council). The applicant is an incorporated association, the objective of which is to maintain full community access to Fred Caterson Reserve (the r****eserve), while also preserving the endangered ecological bushland, flora and fauna in the reserve.

2. On 10 October 2025, the applicant filed an amended summons (the amended summons) seeking the following orders:

Interlocutory orders

An injunction restraining the Respondent from taking any steps or acting upon the Approval physically commencing the Activity until such time as the Court adjudicates on the relief claimed.

Relief claimed

On the grounds listed below the Applicant seeks the following orders:

2. A declaration that the Review of Environmental Factors (REF) approved by the Respondent under the Environmental Planning and Assessment Act 1979 (the EPA Act), on 30 September 2024, and the Addendum Review of Environmental Factors (Addendum REF) approved by the Respondent under the EPA Act, on 9 May 2025 for the excavation, filling and construction of three (3) rugby union fields including, lighting, irrigation, carparking toilets and spectator amenities, roads, retaining walls and landscaping on Lot 224 DP 752020 in Fred Caterson Reserve (the Determination) is invalid.

3. An order setting aside the Determination and any construction certificates issued in reliance on it.

4. An order that the Respondent, by itself, its servants and agents, be restrained from taking any action or carrying out any works in pursuance of or in reliance on the Determination approval.

5. An order that the Respondents pay the Applicant's costs.

6. Such further or other order as the Court sees fit.

3. In the amended summons, the applicant identifies the relevant activity approved by Council as described in the Review of Environmental Factors approved on 30 September 2024 (REF) as “excavation, filling and construction of 3 new rugby fields including associated retaining walls, sport field lighting, sport field irrigation, construction of an amenities building and car parking, construction of vehicle access roads and footpaths” (the activity) at Lot 224 DP 752020, being land known as the former pony club site within Fred Caterson Reserve, Castle Hill.

4. The applicant identified the “determination” the subject of the relief claimed in the amended summons as Council’s approval of both the REF and the Addendum Review of Environmental Factors approved by Council on 9 May 2025 (the Addendum REF) under the Environmental Planning and Assessment Act 1979 (the EPA Act) for the activity in Fred Caterson Reserve (the determination).

5. The proponent for the activity was Council which was also the determining authority which approved the activity.

6. The amended summons includes the following grounds:

Ground 1

5. In breach of s. 5.6 of the EPA Act and Regulation 171A(1)(a) of the Environmental Planning and Assessment Regulations 2021, when considering the likely impact of the Activity on the environment the Respondent failed to take into account the mandatory matters it was required to consider in State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), clauses 6.6(1), 6.7(1), 6.8(1), and 6.9(1).

…

Ground 2

6. Planning and Assessment Regulations 2021, when considering the likely impact of the Activity on the environment the Respondent failed to take into account the mandatory matters in the Biodiversity SEPP, it was required to satisfy itself about in clauses 6.6(2), 6.7(2), 6.8(2), and 6.9(2).

…

Ground 3

7. In breach of Section 5.5 of EPA Act the Respondent failed to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment in its consideration of whether to approve the Activity.

8. The sport field lighting has been designed for 100 lux lighting on all 3 playing fields, with the lights mounted on top of poles of 30m and 32m in height.

…

Particulars

11. The impact or likely impact of the sport field lighting from lights of up to 100 lux lighting mounted on poles of 30m and 32m in height on the environment within the meaning in s 5.5 of the EPA Act, being the adjoining habitat of the Powerful Owl, Masked Owl and Sooty Owl, is not described or considered in the Flora and Fauna Assessment (Narla, July 2024 or Narla, 2025) or the REF (September 2024) or Addendum REF.

12. Having regard to the facts pleaded in paragraphs 8, 9, 10 & 11 of the Summons, before approving the REF the Respondent, acting reasonably, ought to have made 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 Activity.

13. The failure to make those inquiries by the Respondent was legally unreasonable and in breach of its duty to examine to the fullest extent possible all matters affecting or likely to affect the environment before approving the REF.

…

Ground 4

14. In breach of s. 5.5 of the EPA Act and Regulation 171(1) of the Environmental Planning and Assessment Regulations 2021 and the Guidelines for Division 5. 1 assessments published by the Department of Planning in June 2022, the Respondent failed to take into account the following mandatory environmental factor when considering the likely impact of the Activity on the environment:

o) any cumulative environmental effect with other existing or likely future activities.

15. At or around the date of the consideration by the Respondent whether to approve the activity, Eastwood Rugby Club was in advanced negotiations with the Respondent to use the 3 sport fields for Grade Rugby Competition, including the Shute Shield Competition for First Grade.

16. Eastwood Rugby Club has requested the Respondent to install electrical cabling and light poles to the sports fields sufficient to accommodate 500 lux lighting, required for professional level televised rugby union matches, and the Respondent has agreed to tender for the wiring and room for extra luminaires on the light poles on one of the sports fields to accommodate 500 lux lighting.

7. On 30 September 2024, Council approved the REF. On 9 May 2025, Council approved the Addendum REF. On 12 June 2025, Council published the REF and the Addendum REF on its website.

8. The matter came before me on 18 November 2025 for the hearing of a notice of motion filed by the applicant on 31 October 2025 seeking the following orders:

1. The respondent is granted leave to commence proceedings under rule 59.10(2) of the Uniform Civil Procedure Rules 2005.

2. The respondent is granted leave to rely upon the expert evidence of Dr Stephen Debus, owl biologist, pursuant to rule 31.19 of the Uniform Civil Procedure Rules 2005.

9. Initially, Council consented to the orders sought in the notice of motion being decided at the substantive hearing in relation to the relief sought in the amended summons. Subsequently, however, both parties accepted that the notice of motion ought be determined in advance of any substantive hearing. On 3 December 2025, the notice of motion came before me for hearing.

Evidence

10. The applicant filed the following evidence in support of the notice of motion:

11. an affidavit of Dr Stephen Debus dated 30 October 2025 annexing a report titled “Land at Fred Caterson Reserve, Castle Hill, NSW: Report prepared for Fred Caterson Campions Inc” dated 29 October 202, in which report Dr Debus:

(a) refers to the BirdLife Australia database records of the Powerful Owl listed as threatened (Category Vulnerable) pursuant to the Biodiversity Conservation Act 2016 (NSW) which show that the subject site is “productive habitat of sufficiently high quality to support multiple successful breeding events by the pair of Powerful Owls which are known to nest and forage on the Subject Site”; (b) identifies the inquiries which he says, if made, would have “produced information readily available to Council as to the extent and location” of the core breeding territory of the Powerful Owl, “the extent and location of its foraging territory”, and would have enabled an “assessment of the impacts on those aspects of the environment by reason of the combination of tree removal and increased light spill”. Dr Debus refers to the information held by BirdLife Australia following the “completion of the Powerful Owl Project” in relation to the Powerful Owl's use of the reserve, including “mapping of sightings of the Powerful Owl in the reserve”, which information he says was not referred to in the REF, Addendum REF, or the accompanying reports; and (c) says that if the “appropriate” examination pursuant to s 5.5 of the EPA Act had been undertaken, that would have allowed Council to undertake a holistic assessment of the impact of habitat alteration and disturbance on the Powerful Owl's breeding habitat, nest sites and breeding success, as well as an assessment of the impingement of light spill into the core breeding territory and into foraging habitat in adjoining bushland downslope of the site;

Attached to Dr Debus’ report was a letter of instruction from Stringybark Legal dated 26 September 2025 (the letter of instruction) attaching the following ecological and arboricultural reports considered by Council prior to the REF being determined:

(d) Ecological Constraints Report prepared by Narla Environmental Pty Ltd 2023 (Narla 2023); (e) Flora and Fauna Assessment Report prepared by Narla Environmental Pty Ltd 2024 (Narla 2024); (f) Arboricultural Assessment prepared by Rain Tree Consulting 2023 (Rain Tree Consulting 2023); and (g) Arboricultural Impact Assessment prepared by Rain Tree Consulting 2024 (Rain Tree Consulting 2024).

The letter of instruction requested Dr Debus to answer the following questions:

(h) Does Fred Caterson Reserve, including the former pony club site, contain habitat of any of the Powerful Owl, Masked Owl and Sooty Owl? If so, please describe, including by reference to a map or plan, the location, extent and quality of that habitat. (i) Having regard to the four ecological and arboricultural reports (Narla 2023, 2024; Rain Tree Consulting 2023, 2024), and the matters contained within them, in your opinion should the respondent have made additional inquiries as to the impact of the activity’s proposed lighting of the sports fields for up to 100 lux lighting on the habitat of the owls prior to determining the REF? (j) If so, in your opinion, what should the scope and nature of those inquiries have consisted of? (k) In your opinion, had those inquiries been made, what would the outcome of those inquiries have demonstrated in connection with the potential impact of the 100 lux lighting on the habitat of the owls? (l) Assuming that one of the playing fields is installed with light poles and lit to 500 lux lighting, in your opinion should the respondent have made additional inquiries as to the impact of the activity’s proposed lighting of the sports fields for up to 500 lux lighting on the habitat of owls prior to determining the REF? (m) If so, in your opinion, what should the scope and nature of those inquiries have consisted of? (n) In your opinion, had those inquiries been made, what would the outcome of those inquiries have demonstrated in connection with the potential impact of the 500 lux lighting on the habitat of the owls?

Dr Debus’ answers to the questions included the following:

b) Having regard to the four ecological and arboricultural reports (Narla 2023, 2024; Rain Tree Consulting 2023, 2024), and the matters contained within them, in your opinion should the Respondent have made additional inquiries as to the impact of the Activity's proposed lighting of the sports fields for up to 100 lux lighting on the habitat of the owls prior to determining the REF?

Yes, I consider it reasonable for the Respondent to have reviewed, or engaged, additional relevant ecological expertise to review the potential impact of site preparation, pole construction and light spill of that magnitude (100 lux) on the habitat of the owls, and especially the known breeding habitat and nest sites of the Powerful Owl on and around the Subject Site. This is because habitat destruction and disturbance around the pony club site, for the construction of playing fields and infrastructure including lighting, is likely to adversely affect those owls and their breeding success. That is, further inquiries should have addressed the loss of habitat, especially the known nest trees or their vicinity, as well as the effect of floodlighting penetrating deeper into the forest, as a result of the increased clearing of trees.

…

The ecology reports and REF do not adequately consider the issues of the combination of habitat loss and floodlighting, particularly with respect to the impact of clearing and construction and increased light spill, on the breeding habitat and nest sites of the recorded pair of Powerful Owls. Another factor not adequately addressed is the potential effect of noise and disturbance from tree removal, construction, football games and training sessions on the Powerful Owl's breeding success in the nest tree(s) on the Subject Site.

c) If so, in your opinion, what should the scope and nature of those inquiries have consisted of?

The scope and nature of desirable inquiries would include an assessment of the direct impact on habitat from removal of mature and hollow-bearing eucalypts and the proximity of such habitat alteration and associated disturbance (including through floodlighting) to the known current and recent Powerful Owl nest tree(s). It is my opinion that the ecology reports should have matched the proposed tree removals in arborist's report, and the REF addendum (Biosis 2025) concerning the tree removals required for the pathway, pipeline and stormwater drain, with the identified Powerful Owl nest trees, in order to assess the potential impact on the Owls.

…

Inquiries should also have assessed the potential impact of light spill, and its extent into habitat downhill into the Castle Hill Creek and Cattai Creek valleys, on the three owl species and their major nocturnal prey species, to the extent known for these (or equivalent/surrogate) species. It is reasonable to expect that the Respondent should have been made aware, through its ecological consultants, of the existence of the known Powerful Owl nest trees near the edge of the pony club (Figure 1) from the BirdLife Australia Powerful Owl Project database and comprehensive local knowledge on the owls and their history from involved residents, who volunteer on the Project (see Paragraph 10 below). The Narla and Biosis reports supporting the REF do not consider the relevant information available from the BirdLife Powerful Owl Project; for instance, Narla (2024) considers the habitat only "potential breeding habitat" instead of confirmed breeding habitat, and failed to detect the presence of Powerful Owl on Subject Site.

d) In your opinion, had those inquiries been made, what would the outcome of those inquiries have demonstrated in connection with the potential impact of the 100 lux lighting on the habitat of the owls?

If appropriate inquiries had been made, the existence and location of known recent and current Powerful Owl nest trees would have been identified, and the classification of breeding habitat (by Narla 2024) would (or should) have been revised from “potential” to “confirmed”. Proper assessment of the impact of habitat alteration and disturbance on the Owls’ breeding habitat, nest sites and breeding success would then be required. An accurate assessment of the impingement of light spill into the core breeding territory and into foraging habitat in adjoining bushland downslope should also be possible (see above under question b).

g) In your opinion, had those inquiries been made, what would the outcome of those inquiries have demonstrated in connection with the potential impact of the 500 lux lighting on the habitat of the owls?

…

The following are established facts, obtained from the coordinator of the BirdLife Australia Powerful Owl Project, about the known breeding pair of Powerful Owls at Fred Caterson Reserve, which have been closely monitored:

• Monitoring in recent years by Powerful Owl Project volunteers, who are also Hills Shire residents, has shown that extensive areas of the Reserve are important for the normal activities of the owls including roosting, breeding, rearing of owlets including the development of flight and hunting skills, foraging, and contact calling.

• The owls, especially the female, use the former pony club site for foraging and contact calling. Activity in this precinct has been reported from April through to October, which coincides with the Powerful Owl's breeding season.

• The nearby area of Fields 1-3 has been observed, by contributors to the BirdLife Powerful Owl Project database, to be an important area for the owlets to develop their flight and hunting skills. Development of the pony club site will have flow-on effects to this area.

11. Potential impacts to the breeding Powerful Owls from the proposed redevelopment of the former pony club site include:

• reduction in foraging areas

• light spill into surrounding areas of the Reserve, especially from but not limited to the effects of the stadium lighting, which would affect both the owls and their prey species

• disruption to call contact activities between the pair of owls

• increased risk of secondary poisoning of owls due to rodent control at the new facilities

2. an affidavit of the applicant’s solicitor James Ryan of Stringybark Legal dated 31 October 2025 in which Mr Ryan deposes that:

(a) he accessed the REF and the Addendum REF via Council’s website, and was later instructed that Council had provided written confirmation that the REF was uploaded to Council’s website on 12 June 2025. Mr Ryan conducted a search of the NSW Planning Portal and could not find a copy of the REF on that website. He was subsequently provided with a copy of an email sent to Committee Member Katrina Emmett from Councillor Kasby which in turn forwarded an email from a staff member of Council which stated that the REF was uploaded on 12 June 2025; (b) the proposed activity will impact on a Critically Endangered Ecological Community, Sydney Turpentine-lronbark Forest, and on three species of threatened owls which have been recorded on the site; that the site is part of the territorial range of a breeding pair of Powerful Owls; that the site is set on a ridge elevated above the surrounding forest of Fred Caterson Reserve; and that the fields are intended to be floodlit for 4 evenings per week by 100lux lighting situated on 4 poles which are 30m in height and 4 poles which are 32 metres in height, with the lighting on the 32m high poles potentially increased to 500 lux. Mr Ryan says that bright or artificial light is known to inhibit the emergence of certain prey species, notably tree-dwelling native mammals that den in hollows and is thus a potential adverse effect on food availability for the owls; and (c) expert evidence will assist the Court to resolve the real issues in dispute in a quick and just manner while fulfilling the requirement to consider environmental impacts to the fullest extent reasonably possible;

At the hearing yesterday, I determined to treat the evidence of Mr Ryan summarised in [10(2)(b)] and [10(2)(c)] immediately above which was the subject of objection by Council as in the nature of submissions.

3. the Statement of Requirement for Expert Evidence prepared by the applicant dated 31 October 2025 (the Statement of Requirement) which:

(a) refers to the REF and Narla 2024 which identified three threatened species of owl as either using the site or the surrounding environment: the Powerful Owl, Masked Owl and Sooty Owl. With regard to the Sooty and Masked Owls, the Narla 2024 flora and fauna assessment states that no further assessment of impacts would be required owing to the mitigation measures proposed and the extensive habitat to be retained within the subject property and surrounds. The mitigation measures listed in Table II of the flora and fauna assessment and Table II of the REF include the following statement:

All lights associated with the proposed activity are to be placed facing into the study area, to minimise light spill into the adjacent reserve and vegetation. If light spill is encroaching into the adjoining vegetation, methods such as the installation of light shields should be investigated to minimise impacts on fauna species.

(b) attaches a drawing of Apex Lighting, Fred Caterson Reserve Sports Lighting, which shows an estimate of the lighting spill from 100 lux illumination as 7 contours of 100 to 1 lux, and a drawing of Apex Lighting which shows the projected spill from the illumination of the main field at 500 lux, and the spill extending further into the adjoining forest; (c) refers to and attaches a letter from BirdLife Australia to Council dated 26 August 2025 requesting it reconsider the proposed activity, citing light spill as having a potential impact on the Powerful and Barking Owls, and stating that the Barking Owl, listed as vulnerable under the Biodiversity Conservation Act 2016 (NSW), has been heard calling in the reserve in both July and August 2025. The Statement of Requirement notes that these records post-date the REF and the flora and fauna assessment and that the BirdLife Australia letter opines that these records suggest there is a Barking Owl resident in Fred Caterson Reserve (which would be in addition to the 3 other species of owl); and (d) states that as no assessment of the impact of light on the Sooty and Masked Owl species has been conducted, and neither the REF nor the flora and fauna assessment considered the BirdLife Australia records of Powerful Owl “sitings” [sic], or considered the site and surrounds as breeding habitat for the Powerful Owl, the applicant seeks to adduce expert evidence from Dr Stephen Debus, adjunct lecturer at University of New England; and

4. an affidavit of Susan Sandercock dated 2 December 2025 in which Ms Sandercock, a member of the applicant, deposes that she first became aware of the existence of the REF and the Addendum REF in approximately the first week of July 2025 when she checked Council’s website and saw both the REF and the Addendum REF were on the Fred Caterson Master Plan webpage. Ms Sandercock also deposes that “as yet” there is no Plan of Management for the reserve, and attaches a copy of a letter from the Department of Planning, Housing and Infrastructure to Catherine Woolnough, a member of the applicant, dated 19 November 2025 acknowledging inquiries being made of Council by the Independent Commission Against Corruption (ICAC), and noting that it had determined to pause its assessment of the Generic Plan of Management, which includes the reserve, until ICAC has completed its enquiries.

The respondent disputed that there was “no plan of management in relation to the reserve”, a matter to which I return below.

11. Council filed an affidavit of Jennifer Coburn, corporate lawyer of Council, referring to the establishment of a webpage on the project “Fred Caterson Reserve Masterplan” to inform the public of the progress of the masterplan after it was made on 24 November 2020. The last document on the webpage was the “Generic Crown Lands Plan of Management (includes Fred Caterson Reserve)”, noting that public exhibition took place between 14 August and 25 September 2025. Ms Coburn attaches to her affidavit:

12. a copy of two emails from BirdLife Australia to Council dated 3 January 2023 and 31 January 2023 entitled “Fred Caterson Reserve Master Plan” and “Powerful Owls at Fred Caterson Reserve”, drawing attention to the presence of a resident breeding pair of Powerful Owls in the reserve and raising concerns in relation to the potential impacts of the proposed activity on these owls;

13. an extract from Council’s document management system showing instructions to consider matters raised by BirdLife in the Review of Environmental Factors for the development of the Fred Caterson Reserve:

3 records.

Fred Caterson Reserve - Powerful Owl.

NARLA to consider as part of night investigation.

Created At

13-Feb-2023 07:02:29

Noted

I’ve shared this information with NARLA so it may be considered during REF.

Created At

13-Feb-2023 07:10:46

Fred Caterson Reserve - Powerful Owl

Gisele and Rob Whoever we engage to undertake the REF will have to address the issues raised by Jenny of the powerful Owl project team. It would also be worthwhile if they contact Jenny to obtain more information directly from her.

Created At

31-Jan-2023 12:01:55

3. a submission from Kerrie Sicard, a local resident, dated 10 September 2020 in response to public exhibition of the Fred Caterson Reserve draft Master Plan, stating amongst other things that she volunteers with the Powerful Owl project and is monitoring breeding Powerful Owls in the Fred Caterson Reserve and the Fullers Road Reserve, and raising concerns in relation to the proposed lighting of playing fields and venues on nocturnal animals;

4. a copy of an email from Ms Susan Sandercock to Council dated 16 January 2023, attaching a letter in which she, amongst other things, expressed her appreciation for the time allocated a Council’s meeting on Friday, 13 January 2023 to “listen to our concerns about the Fred Caterson Reserve Master Plan” and proposing changes to the current Master Plan for Fred Caterson Reserve;

5. a copy of a response from Council to Ms Sandercock dated 30 January 2023, noting amongst other things the details Ms Sandercock had provided with respect to BirdLife Australia (and its Powerful Owl project), and confirming that these details would be provided to the experts retained by Council to provide independent advice as to the progress of the project, and that Council would seek that they be consulted with and their views considered as part of the overall reporting provided by the independent expert to Council; and

6. a copy of the applicant’s application for registration of an incorporated association by 5 or more individuals to NSW Fair Trading, signed 13 July 2025, and attaching “Fred Caterson Champions Incorporated Constitution 27/06/2025”, with a footer “updated, Sunday, 29 June 2025”, and stating in clause 2 “Objects” as “Fred Caterson Champions Inc is dedicated to protecting Fred Caterson Reserve. It is our mission to maintain full community access to the reserve, while also preserving the endangered ecological bushland, flora and fauna”.

7. At the hearing, Council tendered a bundle of documents which included:

8. “Tree Hollow Inspection Report” prepared by Narla Environmental Pty Ltd for the Hills Shire Council, July 2023, the Narla 2023 report, which referred to an inspection survey of the seven hollow bearing trees in the area encompassed by the Hills District Pony Club which survey assessed, amongst other threatened species, Ninox Strenua (Powerful Owl); and

9. “Flora and Fauna Assessment Report” prepared by Narla Environmental Pty Ltd for the Hills Shire Council, July 2024, the Narla 2024 report, which referred to targeted Owl surveys for threatened Owls which had the potential to use the site conduced by Narla ecologists on 15 and 16 May 2023, which surveys involved the following:

On the 15th and 16th of May 2023, Narla Ecologists conducted surveys for threatened Owls which had the potential to utilise the site. The surveys involved the following:

Two (2) nights of spotlighting, covering the entire property;

Two (2) nights of hollow watches, with a focus on larger hollows deemed to provide suitable breeding habitat.

Two (2) nights of call play back. 16 call play back locations were established across the Subject Property. Call play back was conducted for all owl species believed to have potential to utilise the Subject Property.

This included:

Ninox strenua (Powerful Owl)

Ninox connivens (Barking Owl);

Tyto novaeho/landiae (Masked Owl); and

Tyto tenebricoso (Sooty Owl).

13. Further, Council tendered a number of documents on which it relied in relation to the prejudice to it and the community which would be suffered if an extension of time to commence the proceedings were granted, namely:

14. minutes of a Council meeting held on 14 October 2025 at which a motion was carried out to award a tender for the construction of fields 7, 8 and 9 at the Fred Caterson Reserve, and approve additional funds of $12,402,570 to award the contract (the motion was carried notwithstanding an amendment motion was put and lost that Council defer acceptance of the tender offer until an adopted generic plan of management for community Crown Land has been approved by the Minister);

15. a letter dated 24 November 2025 from Council to “Dear Resident” advising that Council’s contractor, Glascott Landscape and Civil Pty Ltd, will soon commence construction at Fred Caterson Reserve of “Facility Expansion – construction of Three New Natural Turf Playing Fields (Fields 7, 8 and 9)”, with site works planned to commence in February 2026.

16. Council also tendered a request for further and better particulars of paragraph 12 of the amended summons, and the response of the applicant’s solicitor to that request as follows:

a) the inquiries should have been made of the expert consultants who prepared the Ecological Constraints Assessment Report (Narla 2023) and the Flora and Fauna Assessment Report (Narla 2024), or to other suitably qualified ecologists.

b) the inquiries that should have been made, and how, are identified in the expert report of Dr Debus;

c) the inquiries should have been made as part of the Review of Environmental Factors prior to your client determining to approve the activity.

15. The material in the respondent’s bundle also included the REF and the Addendum REF. The Court was not taken to either of these documents by either party. However, it is relevant to note, in particular, the following:

16. the REF referred to the assessments “prepared to support this REF”, including Narla 2023, Narla 2024, Rain Tree Consulting 2023 and Rain Tree Consulting 2024;

17. the REF stated that the “following listed species and threatened communities were identified as potentially occurring within and adjacent to the site, or have previously been recorded on or near the site” including the “Powerful Owl Ninox strenua”, and that Narla’s assessment was “used to inform The Hills Shire Council’s project plans and resulted in design iterations to avoid impacts to threatened species”;

18. the REF noted that the flora and fauna assessment prepared by Narla also identified the Sooty Owl Tyto tenebricosa and the Masked Owl Tyto novaehollandiae as threatened ecological communities under the Biodiversity Conservation Act occurring within or near the study area and potentially being impacted by the proposed works;

19. Table 7 in the REF titled “Threatened flora and fauna likely to occur within the study area” includes consideration of the Sooty Owl, Masked Owl and Powerful Owl, and noted in relation to each owl under the column titled “Relevance to study area and potential for impact” the following:

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.

5. Table 6 in 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. In relation to the Masked Owl and Sooty Owl, the Addendum REF stated:

Breeding habitat not present within the site. Minimal anticipated impact to potential foraging habitat given the mobility of the species. Negligible anticipated impact to breeding habitat.

Relevant legal principles

Environmental Planning and Assessment Act 1979 (NSW)

16. Section 5.5 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) provides in relation to the duty to consider environmental impact:

s 5.5 EPA Act − 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.

17. Section 5.10 of the EPA Act relevant provides in relation to regulations:

5.10 Regulations

(cf previous s 115)

The regulations may make provision for or with respect to—

(a) the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment,

Environmental Planning and Assessment Regulation 2021 (NSW)

18. Section 171 of the Environmental Planning and Assessment Regulation 2021 (NSW) (the EPA Regs) provides as follows in relation to the review of environmental factors:

171 Review of environmental factors—the Act, s 5.10(a)

(1) When considering the likely impact of an activity on the environment, the determining authority must take into account the environmental factors specified in the environmental factors guidelines that apply to the activity.

(2) If there are no environmental factors guidelines in force, the determining authority must take into account the following environmental factors—

(a) the environmental impact on the community,

(b) the transformation of the locality,

(c) the environmental impact on the ecosystems of the locality,

(d) reduction of the aesthetic, recreational, scientific or other environmental quality or value of the locality,

(e) the effects on any locality, place or building that has—

(i) aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance, or

(ii) other special value for present or future generations,

(f) the impact on the habitat of protected animals, within the meaning of the Biodiversity Conservation Act 2016,

(g) the endangering of a species of animal, plant or other form of life, whether living on land, in water or in the air,

(h) long-term effects on the environment,

(i) degradation of the quality of the environment,

(j) risk to the safety of the environment,

(k) reduction in the range of beneficial uses of the environment,

(l) pollution of the environment,

(m) environmental problems associated with the disposal of waste,

(n) increased demands on natural or other resources that are, or are likely to become, in short supply,

(o) the cumulative environmental effect with other existing or likely future activities,

(p) the impact on coastal processes and coastal hazards, including those under projected climate change conditions,

(q) applicable local strategic planning statements, regional strategic plans or district strategic plans made under the Act, Division 3.1,

(r) other relevant environmental factors.

(3) A determining authority must prepare a review of the environmental factors that demonstrates how the environmental factors specified in the environmental factors guidelines, or the environmental factors specified in subsection (2) if no guidelines are in force, were taken into account when considering the likely impact of an activity.

(4) The review of environmental factors must be published on the determining authority’s website or the NSW planning portal if—

(a) the activity has an estimated development cost of more than $5 million, or

(b) the activity requires an approval or permit as referred to in any of the following provisions before it may be carried out—

(i) Fisheries Management Act 1994, sections 144, 200, 205 or 219,

(ii) Heritage Act 1977, section 57,

(iii) National Parks and Wildlife Act 1974, section 90,

(iv) Protection of the Environment Operations Act 1997, sections 47–49 or 122, or

(b1) the activity is development carried out under State Environmental Planning Policy (Transport and Infrastructure) 2021, section 2.61A or 3.37A, or

(c) the determining authority considers that it is in the public interest to publish the review.

(5) The review must be published under subsection (4)—

(a) before the activity commences, or

(b) if publishing the review before the activity commences is not practicable—as soon as practicable, and no later than 1 month, after the activity commences.

(6) Subsection (4) does not apply in relation to a review of an activity—

(a) that belongs to a class specified by the Planning Secretary in a notice published on the Department’s website for the purposes of this section, or

(b) to which an approved code under Division 6 applies.

(7) If a provision of an approved code under Division 6 applies to a determining authority’s exercise of functions under the Act, section 5.5, the provision of the approved code prevails to the extent of an inconsistency with a provision of this section.

(8) Subsection (4) applies on and from 1 July 2022.

Uniform Civil Procedure Rules 2005 (NSW)

19. Rule 31.17 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) provides in relation to the main purposes of Division 2 which contains provisions applicable to expert evidence generally:

Division 2 Provisions applicable to expert evidence generally

…

31.17 Main purposes of Division

(cf Queensland Uniform Civil Procedure Rules 1999, rule 423; United Kingdom Civil Procedure Rules 1998, rule 35.1)

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.

20. Rule 31.19 of the UCPR provides that parties are to seek directions before calling expert witnesses:

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.

21. Rule 59.10 of the UCPR provides in relation to time for commencing proceedings for judicial review of a decision:

59.10 Time for commencing proceedings

(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following—

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.

(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.

Application for extension of time for commencing proceedings

22. The respondent opposed the application for an extension of the time fixed by subrule (1) of rule 59.10 of the UCPR to commence the proceedings. However, I have determined to extend the time of three months within the date of decision fixed by subrule (1), taking into account the factors as are relevant in this case, including the factors identified in subrule (3). In particular:

23. The applicant is not to be criticised for failing to commence the proceedings before the date of publication of the REF and the Addendum REF on Council’s website, that is, on 12 June 2025.

24. Following the publication of the REF and the Addendum REF on Council’s website on 12 June 2025, the applicant engaged its solicitor, Mr Ryan, on 1 July 2025, and proceedings were commenced on 4 September 2025. I am satisfied that the applicant, being a community organisation with the objects of maintaining full community access to Fred Caterson Reserve, while also preserving the endangered ecological bushland, flora and fauna, has a particular interest in challenging the determination for the purposes of subrule (3)(a) of rule 59.10 of the UCPR.

25. Ms Sandercock, a member of the applicant, deposes that she became aware of the REF and the Addendum REF in approximately the first week of July 2025 when she checked the respondent’s website and saw both the REF and Addendum REF on the Fred Caterson Master Plan webpage.

26. Contrary to the respondent’s submissions, on the facts and grounds pleaded in the amended summons, the applicant has demonstrated a reasonably arguable case, noting that the existence of a arguable case is not a factor expressly identified in subrule (3), but that the apparent merit of the proceedings (which requires at least the demonstration of a fairly arguable case) has been identified as a matter important to the exercise of the discretion to extend time: see Cameron v Woollahra Municipal Council (2024) 115 NSWLR 239 at [72] where Payne JA said:

The four considerations in UCPR r 59.10(3) are inclusive rather than exhaustive: Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133. From Toth, (at [9]) and Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 the following matters as being important to the exercise of the discretion to extend time may be derived:

(1) the delay in bringing the application for an extension of time;

(2) the practical consequence of a successful judicial review of the relevant decision;

(3) the explanation of the delay in bringing the proceedings;

(4) the apparent merit of the proceedings (which requires at least the demonstration of a fairly arguable case); and

(5) the extent of any prejudice suffered by the respondent to the application.

5. Here, Council accepted that the grounds in the amended summons were properly drawn, but submitted that there was insufficient evidence adduced by the applicant to satisfy the Court as to the existence of a fairly arguable case in relation to any of them. I am satisfied on the evidence before me, which I accept was largely adduced by Council, that the applicant has a fairly arguable case in relation to the grounds pleaded in the amended summons. It is not necessary to venture further to express an opinion as to the respondent’s prospects of success.

6. There is nothing in the evidence to suggest that the applicant ought by exercising reasonable diligence have become aware of the determination at an earlier point in time than when the REF and the Addendum REF were placed on Council’s website (subrule 3(a)).

7. The applicant has established a public interest in the consideration of the impact of the activity on the habitat of Powerful Owls, a species listed as vulnerable under the Biodiversity Conservation Act 2016 (NSW).

8. Contrary to the respondent’s contention, it has not demonstrated that it, or the public, has been prejudiced by the applicant’s delay in commencing the proceedings. Notwithstanding Council’s reliance on Council minutes and correspondence in relation to the award of a tender, there was also evidence that the Department has paused its assessment of the Generic Plan of Management for the reserve until ICAC has completed its enquiries. In so concluding, it is unnecessary to resolve the question of whether there was in place at the date of the hearing before me a plan of management in relation to the reserve. It was, however controversial, that there is an ongoing assessment of a generic plan of management in relation to the reserve.

9. Accordingly, having regard to the factors set out in r 59.10(3) of the UCPR, and the factors relevant in the circumstances of the case, I have determined pursuant to rule 59.10(2) of the UCPR to extend the time for commencing these proceedings.

Duty to inquire and relevance of expert evidence

24. In Ground 3 in the amended summons, the applicant pleads that Council breached s 5.5 of the EPA Act by failing to examine and take into account to the fullest extent reasonably possible all matters affecting or likely to affect the environment in its consideration of whether to approve the activity.

25. Having regard to the facts pleaded in paragraphs 8, 9, 10 and 11 of the amended summons, the applicant contends in paragraph 12 that before approving the REF, Council, acting reasonably, ought to have made 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 activity”. In paragraph 13 of the amended summons, the applicant contends that the failure to make those inquiries by Council was legally unreasonable and in breach of its duty to examine to the fullest extent possible all matters affecting or likely to affect the environment before approving the REF.

26. As set out above, in Part 5 “Infrastructure and environmental impact assessment”, Division 5.1 “Environmental impact assessment (except for State significant infrastructure)”, subdivision 2 “Duty of determining authorities to consider environmental impact of activities”, s 5.5(1) of the EPA Act provides as follows in relation to the duty of a determining authority to consider environmental impact:

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.

27. The nature and scope of the duty imposed by s 5.5(1) was considered by Preston CJ of LEC in Palm Beach Protection Group Incorporated v Northern Beaches Council (2020) 250 LGERA 212 (Palm Beach), where his Honour observed at [260] (emphasis added):

A number of points can be made about the duty in s 5.5(1) of the EPA Act:

(a) The duty in s 5.5(1) is imposed “for the purpose of obtaining the objects of this Act relating to the protection of the environment” and has effect “notwithstanding any other provisions of this Act or the provisions of any other Act or any instrument made under this or any other Act”. Cripps J in F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1983) 51 LGRA 353 at 365-366 noted the importance of s 5.5 (then s 111): “It is difficult to over-estimate the importance of s 111. The real intention of the legislature is made evident from the terms of s 111 itself. Compliance with its requirements is … pivotal to a proper working of Part 5 of the EPA Act.” This statement was not disputed on appeal in F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) [1983] 3 NSWLR 282; (1983) 51 LGRA 369 and was later endorsed in Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 at 366; 415. Compliance with the duty under s 5.5 is mandatory, not directory: Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 at 366; 415; Jarasius v Forestry Commission (NSW) at 96.

(b) The “activity” whose environmental impacts are to be considered by the determining authority is the particular activity proposed by the proponent: “The proponent must have the privilege of selecting what he proposed to develop”: Prineas v Forestry Commission (NSW) (Court of Appeal) at 164. Similarly, “the nature and scope of a particular activity was necessarily delimited by the way in which the body proposing to carry out the activity (the proponent) described it and stated its objects and the manner of achieving those objects”: Transport Action Group Against Motorways Inc v Roads and Traffic Authority at [154].

(c) The duty is to “examine and take into account” the environmental impact of an activity. Both verbs require positive action by the determining authority. Examination of the environmental impact of an activity involves inspection, inquiry or investigation of the environmental impact (see Macquarie Dictionary definition). Taking into account involves not merely consideration of the environmental impact but also some responsiveness and reflectiveness to the environmental impact in the determining authority’s decision-making. In Willoughby City Council v Minister Administering National Parks and Wildlife Act (1992) 78 LGERA 19 at 29, Stein J observed: “The obligation imposed on a determining authority under s 111, to examine and take into account to the fullest extent reasonably practicable all matters likely to affect the environment, imposes a positive obligation to conduct a proper examination. It requires more than merely adverting to a relevant matter and this would be regarded as paying no more than ‘lip service’ to the obligation.”

(d) The examination and taking into account of the environmental impact of an activity must be undertaken by the determining authority “in its consideration” of the activity: see, by analogy, Parramatta City Council v Hale (1982) 47 LGERA 319 at 339.

(e) The phrase “to the fullest extent possible” sets a high standard, but one that is tempered by reasonableness, so that the phrase is to be read “as if the word ‘reasonably’ was inserted before ‘possible’”: Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 at 366; 415. See also Jarasius v Forestry Commission (NSW) at 96; Transport Action Group Against Motorways Inc v Roads and Traffic Authority at [68]; Oshlack v Rous Water at [32].

(f) The duty imposed by s 5.5(1) is not restricted to any time frame, at least in relation to a determining authority that carries out an activity. A matter affecting or likely to affect the environment that first came to the attention of a determining authority after it had commenced to carry out the activity could not be ignored on that account: Transport Action Group Against Motorways Inc v Roads and Traffic Authority at [70].

(g) The “environment” affected or likely to be affected by the carrying out of the activity is not only the site on which the activity is to be carried out but also “the geographic location in which it is to be carried out and the area of which it is physically a part”: Kivi v Forestry Commission (NSW) (1982) 47 LGRA 38 at 47. It is permissible to go beyond the area in which the activity is proposed to be carried out and look at the whole undertaking of which the activity forms a part to understand the cumulative and continuing effect of the activity on the environment: Kivi v Forestry Commission (NSW) at 47; Jarasius v Forestry Commission (NSW) at 92; Bailey v Forestry Commission (NSW) (1989) 67 LGRA 200 at 212.

28. The applicant contends that the first limb of the duty in s 5.5(1) of the EPA Act (that of examination) imposes a Prasad-like duty to inquire, referring to the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 (Prasad), and that there was a breach by Council of that duty. The applicant seeks to adduce expert evidence from Dr Debus, owl biologist, in relation to the asserted duty. Ground 3 of the amended summons is that in breach of s 5.5(1) of the EPA Act, Council failed to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment in its consideration of whether to approve the activity. The applicant contends in relation to Ground 3 that the first limb of s 5.5(1) requires a determining authority to examine to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity (emphasis added).

29. In its written submissions, the applicant relies for this argument on obiter dictum 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 Cove). There her Honour said (emphasis added):

142 The language of s 111 [the predecessor to s 5.5] makes it plain, in my view, that the duty to consider to the fullest extent reasonably possible all matters affecting or likely to affect the environment by the activity in or to discuss the function of question extends to both a decision-maker's duty to examine these matters and the duty to take them into account. That is to say, the duty must be exercised both at the examination stage and at the consideration stage in order to discharge the function of assessing the effect or likely effect on the environment of the activity in question. It is, in effect, two duties masquerading as one.

143 The duty to take into account to the fullest extent reasonably possible all matters affecting or likely to affect the environment is, on any view, to be assessed objectively by the Court on the material before the decision-maker. By analogy with the traditional ground of judicial review of failing to take into account a mandatory relevant consideration, extraneous evidence, including expert evidence, is not relevant to the judicial task of determining whether or not there has been compliance with this limb of the statutory duty contained in s 111.

144 More difficult, however, is the first limb of the duty contained in s 111, namely, the duty to examine to the fullest extent reasonably possible all matters affecting or likely to affect the environment. The verb "examine" is defined to mean, amongst other things, "to inspect or scrutinise carefully; inquire into or investigate" (The Macquarie Dictionary, online edition) or "to inquire or search into, investigate (a question or subject); to consider or discuss critically; to try the truth or falsehood of (a proposition, statement etc)" (Oxford English Dictionary, online edition). This strongly suggests, therefore, especially when the central importance of the section is recalled, and having regard to the context, scope and purpose of Pt 5, the factors listed in s 5A, and the objects contained in s 5 of the EPAA, that something analogous to a Prasad like duty to inquire is embedded within s 111. 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.

30. It might be accepted that the duty to consider in s 5.5(1) of the EPA Act must be exercised at both the examination stage and the consideration stage, and that the verb “examine” is defined to mean, amongst other things, “to inspect or scrutinise carefully; inquire into or investigate”. However, in its written submissions the applicant omitted to refer to the decision of Duggan J in Natural Grass at Norman Griffiths Inc v Ku-ring-gai Council [2023] NSWLEC 84 (Natural Grass) where her Honour said at [47]-[48] as follows in relation to the duty to inquire and the obiter dictum of Pepper J in Fullerton Cove (emphasis added):

47 The duty conferred by s 5.5 of the EP&A 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 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 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 EP&A 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.

31. Here it was uncontroversial that the proceedings seek judicial review of the respondent’s decision-making, and that the applicant bears the onus of establishing the case brought by it to the relevant civil standard. In judicial review proceedings, the Court is tasked with determining whether the impugned decision was one that was legally made and not whether the Court, if tasked with making that decision for itself, would arrive at the same conclusion. The Court is not permitted to stray into a consideration of the merits, as opposed to reviewing the legal adequacy of the impugned decision. This requires consideration of the decision-making power being exercised. In this case, this requires consideration of whether the statutory language in the first limb of s 5.5(1) of the EPA Act imposes upon Council a duty to inquire having regard to the activity as proposed and the likely environmental impacts of undertaking such activity.

32. The obiter remarks of Pepper J in Fullerton Cove are not to the effect that there is a general duty to inquire, but rather that the extent and scope of the consideration will vary depending upon the activity proposed and the likely environmental impacts of undertaking such activity. Her Honour’s remarks are also to the effect that where there is asserted a duty to inquire, that must be determined having regard to the particular statutory language. I do not consider anything in the obiter remarks of Pepper J to depart from such an approach in relation to the construction of s 5.5(1) of the EPA Act. In particular, I do not consider the language of the first limb of s 5.5(1) to extend so far as to impose on the determining authority in its consideration of the activity here proposed a duty to inquire of the kind suggested by the applicant.

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 Cove, 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.

36. For those reasons, I refuse the applicant’s motion for leave pursuant to r 31.19 of the UCPR to rely upon the expert evidence of Dr Stephen Debus, owl biologist.

Orders

37. The Court makes the following orders:

38. Fred Caterson Champions Inc trading as Fred Caterson Champions (t****he applicant) is granted leave to commence proceedings pursuant to rule 59.10(2) of the Uniform Civil Procedure Rules 2005.

39. The applicant’s application for leave pursuant to rule 31.9 of the Uniform Civil Procedure Rules to rely upon the expert evidence of Dr Stephen Debus, owl biologist, is dismissed.

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