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[2026] NSWCA 24
appellant. Leave to appeal granted, with costs to be costs in the cause. The applicant was directed to file a notice of appeal in the form of the draft notice by 5pm on 11 March 2026, and the matter was...
4 cited instruments linked from this judgment.
The Court of Appeal allowed the association to appeal the refusal to use an owl biologist’s report in its judicial review case. It considered there was enough doubt about whether the report was merely a challenge to the merits of Council’s environmental assessment, because the report also identified further inquiries that might have been made. The Court also considered that excluding the report could meaningfully affect the judicial review case. It did not decide whether the appeal will succeed or whether the report will ultimately be admitted.
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2,327 words · generated 08/10/2026
Fred Caterson Champions Inc is an incorporated association whose stated objective is to maintain full community access to Fred Caterson Reserve while preserving its endangered ecological bushland, flora and fauna. It commenced Class 4 judicial review proceedings in the Land and Environment Court against the Hills Shire Council on 4 September 2025 ([1]).
The challenged decision concerned Council’s approval of a Review of Environmental Factors (REF) on 30 September 2024 and an Addendum REF on 9 May 2025. The proposed activity included excavation, filling and construction of three rugby union fields, together with lighting, irrigation, carparking, toilets, spectator amenities, roads, retaining walls and landscaping at Fred Caterson Reserve ([2]). The association’s amended summons sought a declaration that the determination was invalid.
One ground alleged that Council had breached s 5.5(1) of the Environmental Planning and Assessment Act 1979 by failing to examine and take into account, “to the fullest extent possible”, all matters affecting or likely to affect the environment ([3]). The association described this as its “failure to inquire” case ([8]).
The association sought leave under UCPR r 31.19 to rely on a report by Dr Stephen Debus, an owl biologist. The report, dated 29 October 2025, addressed possible inquiries concerning Powerful Owl records and territory, as well as the effects of tree removal and increased light spill on owl habitat ([4]-[7]). It referred, among other things, to information held by BirdLife Australia about Powerful Owl sightings in the reserve, which Dr Debus said was not referred to in the REF, Addendum REF or accompanying reports ([6]).
Pritchard J refused leave to rely on the report on 4 December 2025. The Court of Appeal then considered the association’s application for leave to appeal that interlocutory decision ([9]). On 10 March 2026, Ward P and Harrison AJA granted leave, directed the association to file a notice of appeal in the form of its draft by 5pm on 11 March, and listed the matter for directions on that date ([18]).
The decision is therefore procedural. It allowed an appeal to proceed; it did not decide whether Council’s approval was legally valid, whether the alleged statutory duty was breached, or whether Dr Debus’ report should ultimately be admitted.
The Court treated the decision below as an interlocutory discretionary decision about practice and procedure. It noted that a party challenging such a decision faces a difficult task. The recognised grounds of intervention include an error of legal principle, a material factual error, consideration of an irrelevant matter, failure to consider or give sufficient weight to a relevant matter, or a result so unreasonable or unjust as to suggest one of those errors ([13], citing Botany Bay City Council v Minister for Planning and Infrastructure).
The Court also applied the leave threshold described in Jaycar Pty Ltd v Lombardo: ordinarily, leave is appropriate where there is an issue of principle, a question of general importance, or injustice that is reasonably clear and goes beyond what is merely arguable. Showing only that a judge was arguably wrong is not enough ([13]). In addition, the applicant had to demonstrate sufficient doubt about the discretionary decision to warrant appellate reconsideration, as stated in Secretary, Department of Family and Community Services v Smith ([14]).
The critical concern was how the report had been characterised. The judge below accepted that expert evidence about what additional inquiries a reasonable decision-maker should have made, and what those inquiries might have revealed, could in some cases be admissible. However, she regarded Dr Debus’ evidence as, in effect, a merits critique of the assessments made by Council’s experts ([11], quoting the reasons below).
The Court of Appeal considered that this characterisation was open to serious question. The amended summons alleged a failure to examine and take environmental matters into account to the fullest extent possible. Against that pleading, the report’s account of further inquiries that could or reasonably should have been made appeared relevant. The Court expressly separated that inquiry-focused aspect from Dr Debus’ views about the likely outcome if those inquiries had occurred, which might be seen as straying into merits review ([12]).
The Court also referred to the statutory wording. Section 5.5(1) requires 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 that activity ([10], [15]). At the leave stage, the Court did not finally construe the section or decide precisely what inquiries it required in this particular case. It used the statutory duty and pleaded ground to assess whether the report’s subject matter could be relevant to the appeal.
The potential effect of excluding the evidence also mattered. The Court considered that refusal to permit the report might have a real impact on the final determination of the judicial review application. It accepted that there was a public interest in the underlying proceedings, noting that a community organisation was challenging Council’s approval of development in the reserve. In the Court’s view, the potential prejudice or injustice went beyond what was merely arguable ([16]).
The Court therefore found sufficient doubt about the report’s characterisation to “bespeak error in the House v The King sense” ([16]). It granted leave but expressly stated that it expressed no view about the merits of the appeal ([17]).
The judgment did not purport to change the law governing leave to appeal, expert evidence, or s 5.5(1). It applied established principles for reviewing interlocutory discretionary decisions and granted leave on the particular circumstances before it.
Before this decision, the relevant procedural framework was that challenges to discretionary interlocutory decisions face a demanding threshold. The applicant must identify a recognised basis for appellate intervention, and ordinarily must show a principle issue, a question of general importance, or reasonably clear injustice beyond mere arguability ([13]). The Court added that sufficient doubt must warrant reconsideration of the decision ([14]).
The statutory background was s 5.5(1), which imposes on a determining authority a duty to examine and take into account, to the fullest extent possible, matters affecting or likely to affect the environment by reason of the activity ([10]). The Court did not determine the full content of that duty or announce a general duty to make any particular inquiries.
After the decision, the immediate legal consequence was limited: the association obtained leave to appeal the refusal of its application to rely on Dr Debus’ report. The question whether the report should be admitted, and the underlying judicial review claim, remained for later determination. The Court expressly reserved the merits of the appeal ([17]).
Accordingly, the decision should not be read as establishing that expert evidence about environmental inquiries is always admissible in judicial review proceedings, that a decision-maker must always undertake the inquiries proposed by an expert, or that an expert may give evidence about the merits of an environmental assessment. The Court’s reasoning is narrower: where evidence identifies possible additional inquiries relevant to a pleaded failure-to-inquire ground, it may be difficult to characterise all of that evidence as merely a merits critique. Whether that reasoning ultimately leads to admission remained undecided.
Section 5.5(1) requires the authority to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment” ([10]). In plain English, the statutory provision directs attention to environmental matters connected to the proposed activity. The leave judgment did not decide exactly how far this obligation extends in the particular circumstances.
The applicant’s pleaded ground alleged that Council failed to examine and take environmental matters into account “to the fullest extent possible” ([3]). In practical terms, the case was not simply that another expert would have reached a different environmental conclusion. It alleged that Council had not made an adequate examination of matters relevant to its decision.
The Court’s central assessment was that there was “sufficient doubt as to the characterisation of Dr Debus’ report” as a merits critique to indicate possible error ([16]). In plain English, the Court considered that the report might do more than disagree with Council’s experts. It appeared also to identify what additional inquiries could have been made.
The potential prejudice was that refusing the evidence “may well have a real impact on the ultimate determination” of the judicial review application ([16]). This means the evidence could matter to how the underlying case is decided, although the Court did not conclude that it would determine the result.
The reservation of the appeal’s merits was explicit: the Court did “not ... express any opinion on the merits of the appeal itself” ([17]). Granting permission to appeal is not the same as deciding that the judge below was wrong, nor does it determine whether the expert report will eventually be admitted.
This decision is most relevant to applications for leave to appeal from an interlocutory discretionary ruling about expert evidence, particularly where the ruling concerns whether expert material can be used in judicial review proceedings. Its relevance depends on the combination of features identified by the Court, not simply on the fact that a party wants to call an expert.
A potentially comparable situation would involve a pleaded statutory ground alleging that a public decision-maker failed to make adequate inquiries or failed to consider relevant matters, alongside expert evidence identifying specific additional inquiries that could have been undertaken. In this case, Dr Debus identified possible inquiries about owl sightings and territory, habitat and the environmental effects of tree removal and light spill ([6]-[8]).
The decision may be especially pertinent where the evidence has both an inquiry-focused aspect and an evaluative aspect. The Court accepted that evidence about additional inquiries could, in some cases, be admissible, while recognising that evidence about what the outcome of those inquiries would have been might be characterised as straying into merits review ([12]). A lawyer analysing another case would need to distinguish between evidence identifying the inquiry allegedly omitted and evidence that simply advances a competing view of the merits.
The procedural setting also matters. This was not the final appeal from the refusal of the evidence application. It was an application for leave to appeal. The Court focused on whether the decision was sufficiently doubtful and whether refusing the evidence could cause prejudice or injustice beyond what was merely arguable ([14]-[16]).
The judgment does not establish that any environmental challenge, community-interest claim, expert report, or alleged failure to inquire will meet that threshold. It identifies the features that supported leave here: a pleaded statutory failure-to-inquire ground, a report addressing possible further inquiries, doubt about the “merits critique” characterisation, and a potential real impact on the judicial review application.
The judgment text provided contains no decisions by later courts, and it does not establish how subsequent courts have treated this case. The decision is dated 10 March 2026, and the text records only that the appeal was to proceed to directions on 11 March 2026 ([18]). It would therefore be unsupported to describe any later judicial application, approval, distinction or criticism.
The judgment itself applied or referred to several earlier authorities. It relied on Botany Bay City Council v Minister for Planning and Infrastructure for the demanding approach to challenging discretionary interlocutory decisions and the recognised categories of error ([13]). It used Jaycar Pty Ltd v Lombardo for the requirement, ordinarily, of an issue of principle, general importance, or reasonably clear injustice beyond what is merely arguable ([13]). It applied Secretary, Department of Family and Community Services v Smith for the requirement of sufficient doubt warranting reconsideration ([14]). It invoked House v The King in characterising the possible error in the decision below ([16]). It also referred to Segal v Waverley Council in describing the interlocutory decision as dealing with matters critical to the conclusion below ([13]).
Those references explain the framework used in this judgment. They do not provide evidence of how later courts have treated the 2026 decision.
The principal open issue is whether the appeal itself would succeed. The Court expressly left that question undecided ([17]). It did not finally determine whether the Land and Environment Court had erred in refusing leave under UCPR r 31.19.
A related open issue is whether Dr Debus’ report, or particular parts of it, would ultimately be admitted. The Court distinguished evidence about possible additional inquiries from views about their likely outcome, but did not decide the admissibility of either category ([12], [15]-[17]). The report’s content, the way it relates to the pleaded ground, and the procedural directions governing expert evidence would remain relevant to that question.
The scope of the duty in s 5.5(1) was also not conclusively resolved. The provision’s wording was set out and treated as relevant, but the Court did not decide what “to the fullest extent possible” required of Council in relation to owl records, breeding habitat, foraging territory or light spill in this matter ([10], [15]). Nor did it finally decide whether Council was legally required to make any of the specific inquiries proposed by Dr Debus.
Another unresolved issue is the boundary between permissible expert assistance on inquiries and impermissible merits review. The judgment indicates that the inquiry-focused part of the report may be relevant, while its views about the likely outcome of inquiries could raise a different concern ([12]). It does not provide a comprehensive test for separating those aspects in other cases.
Finally, the decision does not determine whether the Council’s approval was invalid, whether the environmental assessment was legally inadequate, or whether the association will obtain any substantive relief. Those matters remained within the underlying judicial review proceedings.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
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 trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2026] NSWCA 24
Hearing dates: On the papers
Date of orders: 10 March 2026
Decision date: 10 March 2026
Before: Ward P
Harrison AJA
Decision: (1) Grant leave to the applicant to appeal.
(2) Direct the applicant to file by 5pm 11 March 2026 a notice of appeal in the form of the draft notice of appeal.
(3) List the matter before the Registrar of the Court of Appeal for directions on Wednesday 11 March 2026 for the appeal.
Catchwords: APPEALS – leave to appeal – where application for leave to rely on expert report refused in the Land and Environment Court – whether leave to appeal should be granted to reconsider that decision
Legislation Cited: Environmental Planning and Assessment Act 1979, s 5.5(1)
Uniform Civil Procedure Rules 2005, r 31.19
Cases Cited: Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141
Fred Caterson Champions Inc. trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2025] NSWLEC 139
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Segal v Waverley Council (2005) 64 NSWLR 77; [2005] NSWCA 310
Category: Principal judgment
Parties: Fred Caterson Champions Inc (Applicant)
The Hills Shire Council (Respondent)
Representation: Counsel:
R White with C Collett (Applicant)
I King (Respondent)
Solicitors:
Stringybark Legal (Applicant)
Matthews Folbigg Pty Ltd (Respondent)
File Number(s): 2026/00041170
Publication restriction: Nil
THE COURT: On 4 September 2025, Fred Caterson Champions Inc commenced Class 4 proceedings by summons filed in the Land and Environment Court against the Hills Shire Council. The applicant is an incorporated association, the objective of which is to maintain full community access to the Fred Caterson Reserve in the Hills Shire, while also preserving its endangered ecological bushland, flora and fauna.
On 10 October 2025, the applicant filed an amended summons seeking relief that included the following:
- A declaration that the Review of Environmental Factors (REF) approved by the [Hills Shire Council] under the Environmental Planning and Assessment Act 1979 on 30 September 2024, and the Addendum Review of Environmental Factors (Addendum REF) approved by the [Hills Shire Council] under the EPA Act on 9 May 2025 for the excavation, filling and construction of three 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.
Ground 3
- In breach of Section 5.5 of EPA Act the [Hills Shire 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.
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.
…
The applicant sought to adduce this expert evidence on the basis that no assessment of the impact of light on the Sooty and Masked Owl species had been conducted and that neither the REF nor FFA had considered the BirdLife Australia records of Powerful Owl sitings or the site and surrounds as breeding habitat for the Powerful Owl (see Statement of Request for Expert Evidence at [7]).
Dr Debus’ report is dated 29 October 2025. Among other things, the report identifies the inquiries which Dr Debus says, if made, would have “produced information readily available to [the] 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.
The report also says that if the “appropriate” examination pursuant to s 5.5 of the EPA Act had been undertaken, it would have allowed the Council to undertake an 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.
The applicant identified the relevance of the expert evidence as going to Ground 3 of its amended summons (its “failure to inquire” case).
On 4 December 2025, Pritchard J dismissed the application for leave to rely upon Dr Debus’ report: see Fred Caterson Champions Inc. trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2025] NSWLEC 139. The applicant now seeks leave to appeal to this Court from her Honour’s refusal of that interlocutory application.
Section 5.5(1) of the Environmental Planning and Assessment Act 1979 provides as follows:
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.
“[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.” [Emphasis added.]
It is apparent from her Honour’s reasons that her refusal of the application for leave to adduce expert evidence was based on her conclusion that the report amounted to a “critique of the merits” of the assessment by Council’s experts (see [33] of the judgment). Her Honour (at [33]) had already accepted that, to the extent that a challenge is made that the decision-maker should, acting reasonably, have made some additional inquiries, then expert evidence as to what those inquiries should have been and what the outcome of those inquiries would have been might in some cases be admissible. Here, in circumstances where the applicant’s amended summons alleged a failure to examine and take into account “to the fullest extent possible” all matters affecting or likely to affect the environment, in its consideration whether to approve the Activity, the relevance of Dr Debus’ report as to what additional inquiries could (or should) have been made seems apparent, leaving aside for present purposes what Dr Debus considered as to the likely outcome had such inquiries been made (which might perhaps be seen as straying into the area of a merits review). To the extent that Dr Debus’ report addressed the question of what additional enquiries could (or should reasonably) have been made, it is difficult to see his evidence as amounting solely to a critique of the merits of the assessment by the Council’s experts (even though parts of the report may trespass into that area).
Her Honour’s decision was interlocutory and concerned a matter of practice and procedure. It dealt with the matters critical to her Honour’s conclusion: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [93]. The principles that apply to a grant of leave to appeal in those circumstances are well settled. In Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141, the Court said this:
“[14] It is well established that parties who seek to challenge a discretionary interlocutory decision on a matter of practice and procedure, such as that of Sheahan J, face a difficult task: Warragamba Winery Pty Ltd v State of NSW [2010] NSWCA 174 at [6]. In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], Heydon JA accepted that, to succeed, it was necessary for an applicant challenging such a decision to establish that the decision maker:
(a) made an error of legal principle;
(b) made a material error of fact;
(c) took into account some irrelevant consideration;
(d) failed to take into account, or to give sufficient weight to, some relevant matter; or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
[15] Further, ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is not sufficient merely to show that the trial judge was arguably wrong: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].”
In order to succeed on the application for leave to appeal, the applicant needs to establish that her Honour’s discretionary decision not to grant leave to rely upon Dr Debus’ report is attended by sufficient doubt to warrant its reconsideration on appeal: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
As noted already, s 5.5 of the Environmental Planning and Assessment Act requires an examination and taking into account “to the fullest extent possible” all matters affecting or likely to affect the environment by the decision in respect of the activity in question. Dr Debus’ report addresses squarely the further inquiries that he considers should have been made and the outcome he believes there would have been had those inquiries been made.
In our opinion, there is sufficient doubt as to the characterisation of Dr Debus’ report (as being in effect a critique of the merits) to bespeak error in the House v The King sense. While there is no issue of principle or question of general importance raised by the proposed appeal, it can be accepted that there is a public interest in the underlying proceedings (as evidenced by the fact that it is a community organisation bringing the application for judicial review of the decision by the Council to approve the development in relation to the Reserve). The refusal to permit the expert evidence to be adduced may well have a real impact on the ultimate determination of the judicial review application (such that the refusal is likely to cause prejudice or an injustice going beyond what is merely arguable, in the sense referred to in Jaycar Pty Ltd v Lombardo, as quoted in the passage set out at [13] above).
In those circumstances, we consider that the applicant has demonstrated a basis for the grant of leave in conformity with the established principles on which this Court could, or should, intervene. We do not, of course, express any opinion on the merits of the appeal itself, which will fall to be considered in due course.
The application for leave to appeal should therefore be granted with costs to be costs in the cause. We make the following orders:
Grant leave to the applicant to appeal.
Direct the applicant to file by 5pm 11 March 2026 a notice of appeal in the form of the draft notice of appeal.
List the matter before the Registrar of the Court of Appeal for directions on Wednesday 11 March 2026 for the appeal.
**********
Fred Caterson Champions Inc trading as Fred Caterson Champions
The Hills Shire Council trading as The Hills Shire Council [2026] NSWCA 24
(1936) 55 CLR 499
(2017) 95 NSWLR 597
(2005) 64 NSWLR 77
(2005) 64 NSWLR 177
Leave to appeal granted, with costs to be costs in the cause. The applicant was directed to file a notice of appeal in the form of the draft notice by 5pm on 11 March 2026, and the matter was listed before the Registrar for directions on that date.