Gibson v Perfect Square Design Pty Ltd

Background to the motion seeking leave to adduce expert evidence

1. On 16 September 2021, the first respondent lodged development application DA/2021/0866 seeking consent to the expansion of the roof structure on the existing building at 11 Phoebe Street by increasing the height of the third level roof ridge by 600mm and extending the third level at that height by approximately 8m towards the side of the property facing the water (the development application).
2. Council prepared a development assessment report to form part of agenda item 11, being consideration of the development application for 11 Phoebe Street, for the meeting of the Panel on 9 August 2022 (the assessment report). The report identified the main issues as floor space ratio development standard variation, heritage impact, and view loss. In relation to section C3.10 Views, the assessment report provided as follows: C3.10 Views Council supports the notion of 'view sharing'. Development should be designed to minimise view loss to the public and to adjoining and adjacent properties while still providing opportunities for views from the development itself. By its nature, view sharing involves sharing on the part of the affected parties. Buildings which are designed sensitively can usually ensure reasonable sharing of views. A submission has been received from No. 2-4 Phoebe Street relating to view loss. The objection has raised concern regarding significant loss of water views from the "ground level, first and second floor balconies as well as the majority of the living spaces". The objection claims that, as a consequence of the design of the third floor addition, current water views and views to Spectacle Island obtained from the lower ground floor will be completely blocked off by the proposal and primary water views experienced from the remainder of the house and balconies will be reduced between 30-50%. The following assessment has been undertaken in regard to the proposed view loss from 2-4 Phoebe Street. Council considers the Tenacity Planning Principle steps in its assessment of reasonable view sharing: a. What views will be affected? In this Plan, a reference to views is a reference to water views and views of significant landmarks (e.g. Sydney Harbour, Sydney Harbour Bridge, ANZAC Bridge and the City skyline including features such as Centre Point Tower). Such views are more highly valued than district views or views without significant landmarks. b. How are the views obtained and assessed? Views from private dwellings considered in development assessment are those available horizontally to an observer standing 1m from a window or balcony edge (less if the balcony is 1m or less in depth). c. Where is the view enjoyed from? Views enjoyed from the main living room and entertainment areas are highly valued. Generally it is difficult to protect views from across side boundaries. It is also generally difficult to protect views from other areas within a residential building particularly if views are also available from the main living room and entertainment areas in the building concerned. Public views are highly valued and will be assessed with the observer standing at an appropriate point in a public place. d. Is the proposal reasonable? A proposal that complies with all development standards (e.g. building height, floor space ratio) and planning controls (e.g. building setbacks, roof pitch etc) is more reasonable than one that breaches them. a. What views will be affected? In this Plan, a reference to views is a reference to water views and views of significant landmarks (e.g. Sydney Harbour, Sydney Harbour Bridge, ANZAC Bridge and the City skyline including features such as Centre Point Tower). Such views are more highly valued than district views or views without significant landmarks. Comment: As noted in the photos above, views are currently obtained from the front of the property (north-west facing) lower ground floor living/dining room, upper ground floor formal living/dining area, upper ground floor verandah and first floor balcony connected to a bedroom.- the views include views of Spectacle Island and Parramatta River. Notwithstanding, majority of the views of Parramatta River and Spectacle Island will be maintained - see photos above and further commentary below. b. How are the views obtained and assessed? Views from private dwellings considered in development assessment are those available horizontally to an observer standing 1m from a window or balcony edge (less if the balcony is 1m or less in depth). Comment: The views (see pictures above) are obtainable over the roof structure of 11 Phoebe Street when standing up against the lower ground, upper ground floor living/dining area windows and first floor balcony. In addition, the views obtained in photo 4 are from the verandah located on the upper ground level and on the north eastern end, adjoining the upper ground floor living area. c. Where is the view enjoyed from? Views enjoyed from the main living room and entertainment areas are highly valued. Generally, it is difficult to protect views from across side boundaries. It is also generally difficult to protect views from other areas within a residential building particularly if views are also available from the main living room and entertainment areas in the building concerned. Public views are highly valued and will be assessed with the observer standing at an appropriate point in a public place. Comment: The existing views of Spectacle Island and Parramatta River are enjoyed and obtained from all three levels as shown in the photos above on the lower ground, upper ground living areas, upper ground verandah and from the first floor balcony which is connected and servicing a bedroom. d. Is the proposal reasonable? A proposal that complies with all development standards (e.g. building height, floor space ratio) and planning controls (e.g. building setbacks, roof pitch etc) is more reasonable than one that breaches them." As previously noted: • The proposal to further extend the existing third floor to the rear of the subject site with its minor increase in height and change of roof form from a gable to a skillion form will not result in any adverse overshadowing and visual bulk and scale impacts when viewed from the adjoining neighbouring properties rear private open areas. • The proposal complies with the site coverage and landscaped area development standard but will breach the maximum allowed FSR. • The new RL of the third-floor addition, when compared to the RLs of its adjoining neighbouring properties at No 9 and 13 Phoebe Street, is much lower. As a result of all the above considerations, existing unobstructed view corridors of Spectacle Island will be maintained from the upper ground and first floor levels and majority of the water views of Parramatta River will be maintained as depicted in photos 1, 3 and 4. It is, however, noted that the limited view of Spectacle Island and water views currently obtained from the lower ground level of No 2 Phoebe Street will be eliminated as depicted in photo 2, however, for the reasons mentioned above, the view loss impact is considered reasonable and meets the above Tenacity and view sharing tests and principles. Notwithstanding the above, the proposal is recommended for refusal for reasons outlined elsewhere of the report.
3. As is clear from the assessment report extracted above, Council undertook an assessment of view loss and a consideration of the planning principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 (Tenacity) in relation to view sharing. The applicant takes issue, through the expert evidence it seeks to adduce, with the application in the assessment report of the third step in the Tenacity planning principles.
4. As is also clear, there were reproduced in the assessment report two figures and four photos of: 1. view corridor of No. 2-4 Phoebe Street, facing towards Parramatta River (figure 1); 2. view corridor of No. 2-4 Phoebe Street, Lower ground, ground and first floor levels, north-west facing towards Spectacle Island, Parramatta River and Woolwich (figure 2); 3. first floor verandah, north-west facing views towards Parramatta River. Photo provided by objector; montage provided by applicant (photo 1); 4. lower ground floor living/dining, north-west facing views towards Parramatta River. Photo provided by objector; montage provided by applicant (photo 2); 5. ground floor formal living/dining, north-west facing views towards Parramatta River. Photo provided by objector; montage provided by applicant (photo 3); and 6. ground floor verandah, north-west facing views towards Parramatta River. Photo provided by objector; montage provided by applicant (photo 4).
5. It also appears from the assessment report that (amongst other things): 1. on 19 December 2021, Council emailed the objector (Kristine Gibson, the applicant in the proceedings) requesting additional photos taken from certain areas of 2 Phoebe Street; 2. on 10 May 2022, Council emailed the applicant for development consent (the first respondent) requesting additional photomontages to carry out an accurate view loss assessment; 3. on 16 May 2022, requested photomontages were provided to Council; and 4. on 22 June 2022 upon the request of the applicant for development consent for an onsite meeting, Council's planning (Assessing Officer and Acting Senior Planner) and Heritage (Team Leader) staff met the applicant, town planner and the home owners.
6. The applicant on the notice of motion lodged the following objections to the development application: 1. objection prepared by Borg Architects dated 7 October 2021; 2. supplementary objection prepared by Bick and Steele dated 11 July 2022; and 3. further written objection prepared by the applicant dated 7 August 2022.
7. All three objections made submissions to Council about view loss to the applicant's property that would result from consent being granted to the development application.
8. The reasons for recommendation of refusal of the development application stated in Attachment A to the assessment report were unsatisfactory heritage impacts and a floor space ratio variation greater than 10%.
9. On 9 August 2022, the Panel held a meeting to consider the development application, at which it was addressed by: 1. the applicant in the proceedings, Kristine Gibson, as an objector to the development application; 2. Patrick Wilson, heritage consultant for the applicant for development consent; 3. Craig Barnett, the second respondent in the proceedings; and 4. Steven Griffiths, partner at Bartier Perry Lawyers for the second and third respondents (by written submission only).
10. At the meeting on 9 August 2022, the applicant requested that the Panel delay its decision until its members had undertaken a site inspection of the property at 2-4 Phoebe Street.
11. At the meeting, the Panel purported to exercise Council's functions as consent authority pursuant to s 4.16 of the EPA Act to grant development consent. In its reasons for decision, in relation to the issue of view loss, the Panel stated: The issue of view loss was raised by an objector. The Panel concurs with the conclusion in the Assessment Report that the view loss is reasonable based on an assessment under the Tenacity Planning Principle.
12. On 9 November 2022, the applicant commenced proceedings seeking judicial review of Council's decision through the Panel.
13. The first directions hearing in the judicial review proceedings was listed for 16 December 2022. However, the parties conferred earlier and sought orders from the Court in short minutes of order. On 14 December 2022, in relation to preparing the short minutes of order, the solicitor for the applicant contacted the solicitor for the second and third respondents proposing a further order that the applicant be granted leave to adduce expert evidence from a visual impact expert.
14. On 14 December 2022, the solicitor for the second and third respondents replied by email, stating that the applicant's proposed order was opposed on the basis that "this matter turns solely on what was before the decision maker at the time…and does not involve any consideration of merits", and that accordingly it was "not reasonably required to the proceedings having regard to the just, quick and cheap requirement and general nature of the proceedings".
15. On 15 December 2022, Duggan J made orders by consent in accordance with the short minutes of order, which orders did not include the applicant's request for leave to adduce expert evidence. When the applicant afterwards attempted to seek this order, Duggan J's chambers advised the applicant to make an application at the beginning of the 2023 law term.
16. On 19 December 2022, the solicitors for the applicant issued a letter of instruction to Jane Maze-Riley "to appear as an expert witness and provide an expert report on behalf of the [a]pplicant in the proceedings".
17. On 20 February 2023, the Maze-Riley report, titled "View Sharing Expert Opinion" was prepared for the applicant in relation to the property at 2-4 Phoebe Street.
18. On 22 February 2023, the solicitors for the applicant served the Maze-Riley report on the respondents.
19. On 23 February 2023, the applicant filed the first notice of motion.
20. On 8 March 2023, the applicant filed the second notice of motion (in relation to which I have made orders: see [8] above).
21. On 8 March 2023, Pain J made orders that the two notices of motion be heard together at the hearing listed before me on 16 March 2023.

Evidence at the hearing of the notice of motion

1. At the hearing of the notice of motion, the applicant read the following affidavits: 1. affidavit of Joshua Ian Wisken (the applicant's solicitor) affirmed 23 February 2023; and 2. affidavit of Kristine Gibson (the applicant) sworn 23 February 2023.
2. Mr Wisken and Ms Gibson gave evidence in relation to the relevant background, the underlying correspondence, the objections to the development application, the meeting of the Panel on 9 August 2021, and the Maze-Riley report.
3. In her report (exhibited to the affidavit of Mr Wisken), Ms Maze-Riley sets out her observations in relation to her attendance at 2-4 Phoebe Street, Balmain on 31 January 2023. Her report addresses the six questions in the letter of instruction which requested her to review the assessment report and Council's methodology by reference to the four-step test in Tenacity, set out in the extract from the assessment report above at [11].
4. Ms Maze-Riley considers that Council's approach was not an accurate interpretation of the four steps in Tenacity: 21. Council have adopted their own interpretation of the Tenacity 4 Step method as quoted below. These paraphrased words and the intent expressed by Council in taking this approach, is not an accurate interpretation of the principle in my opinion. For example; Council's Assessment Report does not include Step 3 of Tenacity, i.e. an assessment, and subsequent view impact rating of potential view loss in relation to the whole dwelling at 2-4 Phoebe Street. No impact rating of the DA on views using Senior Commissioner Roseth's qualitative scale of "negligible, minor, moderate, severe or devastating" has been assigned. and that: 27. In my opinion, it is illogical to only apply part of the Tenacity principle, given that the purpose of the principle is take a holistic approach to assessing view loss, considering all relevant matters. In fact, the Land and Environment Court of New South Wales application is lost and the intent of Roseth guidance which is essentially to protect important parts of whole views Tenacity invokes a 4 step method that is sequential and conditional, meaning that proceeding to further steps may or may not be required if the conditions for satisfying the preceding threshold test are not met. In my opinion all threshold criteria are met and as such all fours steps are relevant and should be addressed. It is therefore illogical, to arrive at Step 4, without having considered Steps 1, 2 and 3.
5. In relation to reasonableness, Ms Maze-Riley says: 43. In my opinion a competent consent authority acting reasonably would have considered all relevant matters in Steps 1, 2 and 3 of Tenacity as outlined in the planning principle and not as paraphrased or simplified by Council in their steps a, b, c and d. The consent authority should reasonably be expected to so be fully informed to consider reasonableness in the context of compliance, in relation to Step 4.
6. Ms Maze-Riley assesses the extent of potential view loss and resultant overall view impacts following construction of the development to be likely "minor-moderate" for the whole dwelling at 2-4 Phoebe Street.
7. In relation to the question of a site inspection, she says: 31. In my opinion a variety of views would not have been evident to the Panel in reading only the Assessment report. Council's Assessment Report contains a total of four (4) photographs all from external locations, no views were inspected from internal rooms or seated or standing locations, which upon inspection by Council could have documented, assessed and would have contributed to a comprehensive and accurate view sharing assessment in line with guidance provided in Tenacity. 32. Three of the four photographs provided are from the first floor balcony, and one is from outside the ground floor living area. It is my understanding Council did not attend site and has relied wholly on the aforementioned photographs to inform their application of Tenacity, and ultimate determination of view impacts. As an expert, I would not rely on supplied photographs only, to assess views but would also seek to undertake a site visit to verify the sites setting, visual context, spatial separation in relation to the DA site and views access from a variety of internal and external locations from seated and standing positions. … 34. If Council had attended site for the purposes of recording data and observations to inform their assessment of view loss, several additional views would have been revealed. These include northerly views from the first floor primary living area, dining room, entry hall and master bedroom, a second story balcony, as well as the lower ground floor kitchen and living areas. When applied accurately, Tenacity considers the quantitative view loss across the whole of the dwelling, which ultimately effects the overall rating of impact, determined in Step 3 of Tenacity. 35. A site inspection would have revealed that the extent of potential view loss caused by the additional height and continuous width of the clerestory's pop up form, and trailing edge projection in downward views towards the water would block north-westerly views from some the ground floor kitchen and dining area areas. View loss would occur in relation to views from the first floor living spaces albeit to a lesser extent.
8. The second and third respondents did not seek to rely on any evidence at the hearing of the motion.

The motion for leave to adduce expert evidence

1. Rule 31.19 of the UCPR provides that any party intending to adduce expert evidence at trial must promptly seek directions from the court in that regard. The main purposes of Division 2 of Part 31 of the UCPR are expressed in r 31.17 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.

The parties' submissions

1. The applicant submitted that the Maze-Riley report addresses matters expressly pleaded in the summons and, as a result, is reasonably required to resolve those pleaded issues and relates to those issues. These are relevant tests applied in relation to the grant of leave pursuant to r 31.19 for expert evidence in judicial review cases, citing Nature Conservation Council of NSW Inc v Minister for Water, Property and Housing [2022] NSWLEC 69 (Pain J) (Nature Conservation) at [80], [82], [87]-[93].
2. The applicant submitted that the Maze-Riley report addresses five matters particularised in the applicant's summons in relation to the "manifest or legal unreasonableness" ground of challenge. These five matters were submitted to be relevant to the manifest unreasonableness ground as follows: 1. Firstly, the Maze-Riley report is said to be relevant to the issue of whether Council addressed step 3 in Tenacity, namely the assessment of the extent of view loss as "negligible, minor, moderate, severe or devastating" (matter one). 2. Secondly, the Maze-Riley report is said to be relevant to the applicant's contention that it is illogical and irrational to apply only part of the Tenacity view loss assessment matrix (matter two). 3. Thirdly, the Maze-Riley report is said to be relevant to the duty of inquiry in relation to the actual observed view loss impact by taking a site inspection without which it was impossible to reasonably assess the view loss (matter three). 4. Fourthly, the Maze-Riley report is said to be relevant to the issue as to whether Control C3 of clause C2.2.2.6 of the DCP was complied with, and hence whether in not acknowledging this non-compliance, Council incorrectly applied or misapplied step 4 in Tenacity (matter four). 5. Fifthly, the Maze-Riley report is said to go to the general contention in the summons that in result, as well as by reason of the inadequate process, Council's decision was legally unreasonable. Evidence not before the decision-maker in judicial review proceedings said to be admissible to demonstrate what a council acting reasonably ought to have done (matter five).
3. In Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 (Caldera) at [10], Talbot J summarised the limited extent to which the court can go beyond the material actually before the Council as follows: In exercising its function of judicial review this Court is not entitled to go beyond the material before the consent authority…The limited extent to which the Court can go beyond the material actually before the council might be summarised as follows:- 1. Where there is a failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed. 2. To show what a council acting reasonably ought to have done. 3. To achieve an understanding of the environmental consequences of the action or inaction of the council. 4. To explain factors, principles or materials relevant to the determination. 5. In a challenge to the reasonableness of the decision where all of the relevant material before the council is in the possession of the witnesses to explain what was before the council. 6. As to the existence and nature of information said to be relevant to the decision where council proceeds to a decision without making any attempt to obtain that information. (Prasad v The Minister for Immigration 65 ALR 549 at 563, Jacfin Pty Ltd v The Taft Entertainment Company Pty Ltd & Ors No. 40033 of 1985 Stein J 3 October 1985 Unreported and Hale).
4. At the hearing of the notice of motion, the applicant submitted that the report of Ms Maze-Riley should be permitted to be adduced in accordance with point 2 in Caldera, namely, to show what a council acting reasonably ought to have done; and in accordance with point 6, to demonstrate information relevant to the decision where Council proceeded to make the decision without attempting to obtain that information, consistent with the principle in Prasad v The Minister for Immigration (1985) 6 FCR 155; (1985) 65 ALR 549; [1985] FCA 47 (Wilcox J) (Prasad).
5. The second and third respondents submitted that the report sought to be relied upon embarks on a merits review of Council's assessment of view loss. They submitted that the expert report is not and cannot be required for the applicant to be successful on the ground of review of unreasonableness, particularly in demonstrating whether it was unreasonable to apply only part of the Tenacity test.
6. Further, the second and third respondents submitted that for the applicant to succeed on the ground relating to Council's failure to undertake a site inspection, it would need to establish that there was either an express or implied duty to inquire arising out of a proper interpretation of the statute (here, s 4.15 of the EPA Act), and that such an inquiry did not occur: Walsh v Parramatta (2007) 161 LGERA 118; [2007] NSWLEC 255 at [60] (Preston CJ). Alternatively, the applicant would have to allege that some aspect that required mandatory consideration was not considered, and that would be evident on the face of the material before the decision-maker, and not the matters of merit canvassed in the Maze-Riley report. Ms Maze-Riley's opinion was submitted to be immaterial as to what the Panel might or did conclude, and not necessary in order to resolve the judicial review proceedings.

Consideration

1. The approach to the judicial review ground of unreasonableness was summarised by Biscoe J in Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [108] as follows: 108. ... A manifestly unreasonable discretionary decision is not a decision that the court considers is unreasonable. It is a decision that the court considers is so unreasonable that no reasonable body could have made it. It requires "something overwhelming": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [44] (Eshetu); Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 ; (2010) 174 LGERA 67 at [105]. The boundary of manifest unreasonableness is vigilantly guarded by the courts because it lies next to the forbidden territory of merits review where the courts cannot enter.
2. At [124], his Honour addressed the admissibility of expert evidence in relation to the manifest unreasonableness ground: 124. Judicial review cannot survive if it tolerates all expert evidence; it does not follow, however, that it will collapse if it tolerates some. In principle and on the authorities, expert evidence can be tolerated in some circumstances, including at the edge of judicial review, at the high and usually insurmountable barrier of the ground of manifest unreasonableness, if it is relevant to the proposition that, on the material before the decision-maker, the decision was manifestly unreasonable. No violence is done to the general principle that judicial review grounds (other than jurisdictional fact) are determined by reference to the material before the decision-maker if it is acknowledged that expert evidence may be required to show that that material was fallacious and operated to produce an absurd result that no reasonable decision-maker could have reached. The precise limit of the admissibility of expert evidence for this purpose is not a bright line. But expert evidence is likely to be admissible where, for example, the technical nature of the material before the decision-maker requiring review is such that it may not be fully understood by the court without expert evidence. The admissibility of expert evidence for this purpose is a different question to whether, at the end of the day, the court is satisfied that the hard to prove ground of manifest unreasonableness has been established. It is insufficient to establish mere factual error.
3. Recently, on 6 March 2023, Pain J handed down her decision in David McElhone v Coordinated Logistics Pty Ltd [2023] NSWLEC 22 (McElhone). There, in Class 4 proceedings, the applicants sought leave to rely on an amended summons, and to adduce expert evidence (coincidentally, also from Ms Maze-Riley) in judicial review proceedings. As is apparent from her Honour's decision, the facts and grounds are closely analogous (but not identical) to those presently before the Court.
4. In McElhone, her Honour observed at [27] to [33]: 27. Judicial review proceedings are generally based on the record of material before the decision-maker. In some limited cases expert evidence has been allowed to be adduced depending on the grounds of review, as identified in Caldera Environment Centre Inc v Tweed Shire Council at 88, Arnold No 6 at [124] amongst other cases referred to by me in NCC v Minister for Water, Property and Housing [2022] NSWLEC 69 at [87]-[93]. Whether evidence is allowed to be adduced under UCPR r 31.19 is a discretionary decision of the court considering whether the evidence will be reasonably necessary for the resolution of the issues in the proceedings. The Applicants bear the onus of establishing that the direction being sought ought be made… 28. The Applicants relied on Friends of King Edward Park Inc v Newcastle City Council and Ors (2012) LGERA 226 where expert evidence relevant to an allegation of failure to inquire was allowed to be adduced. 29. While the Applicants emphasise that their case as pleaded in pars 33-42 is not in terms of failing to consider mandatory matters, being framed as Wednesbury unreasonableness because no site inspection was carried out in circumstances where there was a duty to inquire meaning to undertake such an inspection, par 33 refers to a failure to properly consider heritage impact and view loss and that is essentially what underpins this ground in the summons as the Second Respondent identified referring to Walsh at [60]. In order for these matters to be relevant in relation to such a ground the matters alleged must be mandatory matters in relation to which there is a failure established within the relevant legal framework. No express or implied obligation to undertake a site inspection by all six councillors has been identified in the Applicant's case. The Second Respondent's submissions that the material before the Council and its decision that this enabled it to make a decision to approve the DA is sufficient to enable determination of the matters pleaded is accepted. It is not therefore apparent that the expert report of Ms Maze-Riley is necessary in order to resolve the case pleaded. 30. There are other difficulties with the expert report. Emphasis was placed on the expertise of Ms Maze-Riley as a visual impact expert. Putting to one side whether expertise in visual impact is a particular expert specialty, application of the Tenacity principles does not require particular expertise. Application of these is undertaken routinely by council staff, as occurred in this case where four principles were discussed in turn in relation to the Applicants' objections including with photographs of the view from the Applicant's property in the section 4.15 assessment report of the council officer. … 32. Judicial review proceedings cannot consider the merits of the grant of a development consent and while the instructions to Ms Maze-Riley set out above in [10] purport to be based on the amended summons in relation to Wednesbury unreasonableness in the context of applying the Tenacity principles, her report leads inevitably to her expressing views on matters which fall squarely in the merits review role of the Council in assessing the development. Ms Maze-Riley's expert report is directed to essentially reassessing the decision of the Council to approve the DA on the matter of view loss according to her report. 33. I do not express any view about whether a site visit by all six councillors was mandatory in light of the email correspondence referred to in Ex B summarised briefly in [9] above. Using Ms Maze-Riley's opinion as a substitute for what conclusions the councillors might have drawn about view loss had they undertaken an inspection from within the Applicants' house is however immaterial. Whether councillors would draw the same conclusions as Ms Maze-Riley cannot be assumed given the inherently subjective analysis that the assessment of view loss entails within the Tenacity framework.

The Tenacity view loss assessment matrix (matters one and two)

1. Rule 31.17(b) of the UCPR provides that the main purposes of Division 2 of Part 31 include that expert evidence should be restricted in proceedings to that which is reasonably required to resolve the proceedings. Consistent with Pain J in McElhone at [30], I find that an application of the Tenacity principles does not require evidence from a visual impact expert. That is an assessment frequently undertaken by council staff. In these proceedings, it will ultimately be a matter for the trial judge to decide whether the record of decision-making, on its face, namely, the assessment report and the record of the Panel's meetings on 9 August 2022, is capable of making out the applicant's manifest or legal unreasonableness ground. In particular, the trial judge will be in a position, unassisted by expert evidence, to decide whether Council, in fact, failed to address step 3 in Tenacity and if so, whether an application of only part of the Tenacity view loss assessment matrix is illogical and irrational, and whether any such failure resulted in, or contributed to, an assessment of view loss to the objector that was manifestly or legally unreasonable.
2. I accept the submission of the second and third respondents that the Maze-Riley report embarks on a merits review of the fourth respondent's assessment of view loss, rather than demonstrating what a council acting reasonably ought to have done. Similarly to what Pain J held in McElhone at [32], it is evident that although the report purports to address the ground of unreasonableness, in substance it expresses a view on matters which fall within the role of Council, through the Panel, in assessing the merits of development. Essentially, the report is addressed to reassessing the decision of the Panel, informed by the assessment report, to approve the development in relation to the issue of view loss.
3. As the second and third respondents submitted, as Pain J observed in Filetron Pty Ltd v Innovate Partners [2022] NSWLEC 98 at [35] and [36], referring to Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 at [42] (Preston CJ), citing Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at [459] (Weinberg J), everything depends on the grounds of review and the circumstances of the case. In DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156 (DEXUS Funds Management) Craig J at [8] referred to the Court of Appeal's consideration of UCPR r 31.19 in Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 in which Giles JA said (at [35]): The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible. Craig J continued: His Honour's observations made clear that relevance and admissibility alone will be insufficient. When exercising the discretion available under the rule, it is necessary to determine whether the evidence is "reasonably required" in order to ensure the just, quick and cheap disposition of the real issues in dispute.
4. In the circumstances of this case, I am not persuaded that expert evidence is "reasonably required" to resolve the unreasonableness ground, as pleaded, and particularised, in relation to the application of the Tenacity steps in the assessment of the development application, and consider that the decision-making record, on its face, ought to be capable of demonstrating whether or not the decision of the Panel was manifestly or legally unreasonable. As the authorities establish, relevance and admissibility (about which I venture no view) are insufficient to establish that the evidence is "reasonably required" in order to ensure the just, quick and cheap resolution of the issues in dispute.

A duty to inquire (matter three)

1. In relation to what the applicant contends was the duty of the Panel to undertake a site view of 2-4 Phoebe Street, I also accept the submission of the second and third respondents that the applicant would need to show that there was either an express or implied duty arising from a proper interpretation of the statute, here s 4.15 of the EPA Act. As in McElhone, it does not appear to me presently that the applicant has demonstrated the existence of such a duty. The assessment report records that a site view of 11 Phoebe Street was undertaken by Council staff. The applicant will need to satisfy the trial judge that the Panel's failure to accede to the objector's request to conduct a site view at 2-4 Phoebe Street resulted in, or contributed to a decision on the part of the Panel that was manifestly or legally unreasonable.
2. It is true that the applicant disavowed any reliance on s 4.15 of the EPA Act as the source of any such duty in the circumstances. Instead, the applicant relied on a common law duty to inquire. In particular, the applicant relied on Friends of Kind Edward Park v Newcastle City Council (2012) 194 LGERA 226; [2012] NSWLEC 113 at [82] (Biscoe J) in relation to the alleged duty of inquiry in relation to actual observed view loss impact by taking a site inspection as an element of unreasonable conduct. In that case, Biscoe J said at [77]-[78]: 77. The discussion in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47, 6 FCR 155 by Wilcox J has proved influential to the recognition that a duty to inquire may arise in limited circumstances and may inform grounds of judicial review comprising or including manifest unreasonableness and constructive failure to exercise jurisdiction. Wilcox J said at 169-170: The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information. 78. Prasad has been approved and applied in the Federal Court and in the High Court. In Luu v Renevier (1989) 91 ALR 39 the Full Federal Court held that because the information before a decision-maker raised a doubt as to whether a convicted sex offender would re-offend, the decision-maker should have sought additional expert medical opinion before refusing an application for permanent residence. After referring to Prasad, the Full Court said at 50: ...one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained. And at [82] Biscoe J said: 82. In the environmental planning context, authorities in this Court also support the admissibility of evidence where a duty of consultation or inquiry in the decision-making process is alleged, as it is in the present case. In King v Great Lakes Shire Council (1986) 58 LGRA 366 one of the grounds of challenge to the validity of a development consent for a caravan park was that the council was under an obligation to consult with the National Parks and Wildlife Service, and that had it done so it would have received material information from the Service that the development was not compatible with a national park that the Service was then proposing to extend to include land upon which it was proposed to locate the evaporative ponds for the development. Cripps CJ identified the question in the proceedings as whether the Service ought to have been consulted and, if so, what information it would have provided: at 383. His Honour admitted evidence of an officer of the Service as to what information the Service would have provided: at 371, 376.
3. In light of the authorities, I am not persuaded that the granting of leave to adduce the report of Ms Maze-Riley would assist the trial judge in the determination of the question of whether the apparent failure of the Panel to conduct a site view of 2-4 Phoebe Street, in the circumstances, resulted in or contributed to manifest or legal unreasonableness. Again, the applicant will need to satisfy the trial judge that in the circumstances of this case, a duty of inquiry extended to the Panel undertaking a site inspection of the objector's dwelling. It is not apparent to me how the Maze-Riley report would be reasonably necessary or permissibly assist in the determination of that question.

Compliance with Control C3 of clause C2.2.2.6 of the DCP (matter four)

1. As I have concluded at [50]-[53] above in relation to the Tenacity view loss assessment matrix, also in relation to whether Control C3 of clause C2.2.2.6 of the DCP was complied with, and whether in not acknowledging this non-compliance, Council incorrectly applied or misapplied step 4 in Tenacity, I am not persuaded that evidence from a visual impact expert is reasonably required. The trial judge will be in a position to so decide, on the face of the decision-making record, unassisted by expert evidence.

Inadequate process, and what a council acting reasonably ought to have done (matter five)

1. It follows from my reasons above in relation to matters one to four of the "manifest or legal unreasonableness" ground of challenge, that I do not consider that evidence from a visual impact expert is reasonably required in order for the trial judge to determine this compendious aspect of the ground of challenge.

Costs

1. In the notice of motion, the applicant did not seek any orders for costs. The second and third respondents submitted that costs should be awarded in their favour.
2. In the absence of submissions from both parties, I will make an order reserving the question of costs.

Orders

1. The Court makes the following orders: 1. The notice of motion filed 23 February 2023 by the applicant seeking leave to adduce expert evidence of visual impact expert Jane Maze-Riley pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and seeking that the second and third respondents have leave to adduce expert visual impact evidence, is dismissed. 2. Costs are reserved.

Amendments 21 March 2023 - Typographical error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2023