Gilbank v Bloore

EX TEMPORE Judgment 1The applicants seek judicial review of a development consent granted by Orange City Council on 12 December 2011. That consent was for alterations and additions to a residential property located in Kite Street, Orange. 2By notice of motion filed on 4 July 2012, the applicants seek a direction that they be permitted to adduce expert evidence at the trial of these proceedings. Their application is made pursuant to Pt 31, r 31.19 of the Uniform Civil Procedure Rules 2005 (UCPR). The application is opposed by the respondents who are respectively the owners of the subject premises and the Council. 3So far as they can be distilled from the applicants' Points of Claim, there are four bases upon which it is asserted that the development consent was granted in breach of the provisions of the Environmental Planning and Assessment Act 1979 (the EPA Act). Those bases of challenge are: (i) that the Council failed to consider the suitability of the site for the proposed development, in particular, the capacity of the site to accommodate a driveway of sufficient width adjacent to the eastern boundary so as to allow a garage to be constructed towards the rear, rather than at the front, of the subject property as was allowed by the development consent; (ii) the decision was manifestly unreasonable by allowing the alterations and additions sought, having a significant impact upon both the site and adjoining property, particularly upon the heritage dwelling on adjoining land, by reason of the failure to consider the capacity of the property to accommodate a proposed new garage at the rear rather than the front of the existing dwelling on the site; (iii) upon the same factual basis as is asserted in paragraph (ii), the decision is said to be illogical, irrational and not based on findings or inferences of fact supported by logical grounds; (iv) the Council failed to give consideration to a "garage setback standard" identified in the applicable development control plan. This summary is sufficient for present purposes, recognising that it does not set out in detail the manner in which the grounds of challenge are expressed in the applicants' Points of Claim. 4The expert evidence in respect of which leave is sought is presently in the form of an affidavit sworn by Michael Bridgman on 4 June 2012. Mr Bridgman is described as a town planning and road safety consultant. The essence of the evidence that he seeks to give is directed to the existence of and terms of an Australian standard for driveway widths servicing residential properties and the capacity to provide a driveway in accordance with that standard along the eastern boundary of the site, allowing access to the rear in which a vehicle garage could be accommodated. He also seeks to give evidence as to the common practice of "competent" traffic engineers and traffic planners employed in local government when giving consideration to the Australian standard for driveway access to residential properties. 5Mr Bridgman's evidence is said to be relevant to the second and third bases upon which the development consent is challenged. The matters pleaded in the Points of Claim supporting those grounds are found in [38]. The subparagraphs of that paragraph relevant to the evidence sought to be adduced are expressed as follows: "(b)the failure of the Third Respondent [the Council] to consider the applicable AS/NZ Standard 2890.1 for driveway access, before concluding that it was appropriate for the New Double Garage to replace the garage within the existing dwelling house by reason of accessibility issues associated with the eastern driveway and rear yard; (i)the Third Respondent's discounting of the option of relocating the garage to the rear yard based on non-existent, but assumed or imagined, site constraints; (k)the Third Respondent's acceptance, without due and proper investigation, of the factually incorrect assertions made in the DA." 6Part 31, r 31.19 of the UCPR relevantly provides: "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 in accordance with those directions. ... ." 7The context in which the rule is to be considered is identified in Pt 31, r 31.17 of the UCPR. That rule provides that the "main purposes" of the Division in which r 31.19 appears are - "(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, ... ." 8Application of UCPR r 31.19 has recently been considered by the Court of Appeal in Shellharbour City Council v Minister for Planning [2011] NSWCA 195. The decision of the Court was unanimous. In his concurring judgment, 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." 9His Honour's observations make clear that potential admissibility of the evidence will not, of itself, determine that the requisite direction be given. When exercising the discretion available under UCPR r 31.19, it is necessary to determine whether the evidence is "reasonably required" in order to ensure the just, quick and cheap disposition of real issues in dispute. 10As I observed in DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156, the scope for adducing expert evidence in judicial review proceeding is limited indeed. That limitation was reiterated by Biscoe J in Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 at [74]. 11Notwithstanding the strictures identified in the cases to which I have referred, there are limited exceptions to the general rule. One of those exceptions exists where the grounds of review are manifest unreasonableness (Moolarben Coal Mines Pty Ltd v Director-General, Department of Industry and Investments NSW (Agriculture Division) [2011] NSWLEC 191; (2011) 186 LGERA 342). Evidence is also admissible, in limited circumstances, of an enquiry that a statutory decision maker could have made, but failed to make, revealing information readily available and relevant to the determination to be made (Prasad v Minister for Immigration and Ethnic Affairs [1998] FCA 47; (1988) 6 FCR 155). Further, this Court has also determined that in judicial review proceedings evidence may be admissible in order to establish the manner in which a council, exercising the function of the council whose decision is sought to be impugned, would ordinarily embark upon the task when undertaking the process of decision making (Friends of King Edward Park Inc v Newcastle City Council at [77]). 12These exceptions to the general rule were usefully summarised by Talbot J in Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 in the following way: "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 witness 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." That summary continues to be apt (Friends of King Edward Park Inc v Newcastle City Council at [83]). 13It is necessary to apply these principles both as they relate to the leading of expert evidence in judicial review proceedings and also as they relate to the proper application of UCPR r 31.19. 14For the purpose of determining whether a direction is to be given in accordance with the latter rule, I do so on the basis of the applicants' case as it is pleaded in the Points of Claim. If the facts underlying the pleading are not ultimately proved then the expert evidence in respect of which any leave is given may well prove to be futile. However, unless the application is determined on the basis of the pleaded facts, a trial of fact would be required in advance of the final hearing. This cannot have been the intention of the rule maker. 15I make this point because in their submissions, the respondents indicated that the applicants' case, in effect, proceeds on a false premise. In as much as the applicants' case pleads inferences as to the manner in which the Council made the relevant determination, based upon a report prepared by a staff member, the respondents submit that the inferences pleaded are not open or are incorrectly drawn. They may be correct in so submitting. However, the report was not before me and even if it was it would seem to me to be inappropriate to determine the applicants' motion for a direction under UCPR r 31.19 only after considering and determining the inferences that should be drawn from the staff report and their relevance to the decision of the collegiate body. That is a matter for final hearing. 16In addition to the two bases of claim earlier identified which found the applicants' present application, there are two matters pleaded which, in the present context, also need to be noticed. Those matters are in [25] and [32] of the Points of Claim. They are as follows: "[25] The Assessment Report accepted the First and Second Respondents' assertion that it was not possible to widen or extend the existing garage because the irregular eastern boundary would significantly constrain movement into and out of the garage. [32] The Third Respondent failed in its duty to consider this mandatory matter by failing to consider the actual physical dimensions, extent and features of the existing eastern side driveway and the consequent suitability of the rear yard for the proposed development's garage contrary to s 79C(1)(b) [sic])." The applicants indicated that the latter reference to s 79C(1)(b) of the EPA Act was intended to be and will be amended to indicate a reference to paragraph (c) of the subsection. 17By reference to their pleading, the essence of the case that the applicants seek to make is that: (i) the decision to grant consent by allowing a garage in the front yard was devoid of rationality given the impact which it had; (ii) alternatively it was vitiated in the sense formulated in the second of the two grounds upon which reliance is placed; (iii) the decision may be so described because location of the new garage in the front yard of the site was said to be necessary, having regard to the limited access along the eastern boundary, without adverting to the relevant Australian standard applicable to the provision of access driveways to residential properties; (iv) had the Council adverted to that standard, it would have demonstrated that there was sufficient width along the eastern boundary of the property to permit vehicles to pass beside the existing dwelling and to manoeuvre satisfactorily so as to have access to and egress from a new garage located in the rear yard of the property; (v) It was only by reason of the failure to address these matters that the Council considered it necessary to have the garage located in the front yard of the site. 18Whether these allegations are ever made good will, of course, be a matter to be determined at trial. However, on the basis of the claim sought to be argued by the applicants, it does seem to me that expert evidence may reasonably be led as to the existence and application of an Australian standard directed to a driveway able to be utilised on the subject site. Such evidence may also address the result of an inquiry as to the existence of such a standard when determining the capacity of vehicles to pass along the eastern boundary and to the rear of the subject site. 19Consistent with the earlier statements of principle that I have identified, it also seems to me that, on the basis of the pleaded case, evidence may be led to show what a council acting reasonably would have considered as to vehicular access within the site when determining the subject development application. Assuming the applicants make good their claim that the Council had an obligation to consider the relevant standard, the environmental consequences of the Council's failure so to do is arguably material to the resolution of these proceedings. The latter proposition has the consequence that the evidence in respect of which the direction is sought is reasonably required to resolve the proceedings. Thus, the provisions of UCPR r 31.19 are engaged (cf Friends of King Edward Park Inc v Newcastle City Council at [90]). 20I am therefore disposed to direct that expert evidence may be adduced by the applicants from Mr Bridgman directed to the following two matters: (i) the existence and application of any Australian standard pertaining to driveways and vehicular manoeuvrability within them as relevant to the consideration of the development application determined by the Council on 12 December 2011 in respect of premises known as 48 Kite Street, Orange, and (ii) the practice of a local authority applying the identified standard when determining vehicular access to a garage on a residential property of the kind intended by the development application considered by the Council for the site at 48 Kite Street, Orange on 12 December 2011. In so determining, I make clear that I am expressing no view as to the admissibility of the evidence of Mr Bridgman in the form of the affidavit sworn by him on 4 June 2012, by reason of his expertise or otherwise. Nor, by the direction given, do I foreclose to the respondents the making of any further submission as to admissibility, having regard to such facts as are proved at the final hearing of the proceedings. 21For these reasons I make the following orders and give the following directions: (1)Direct that expert evidence may be adduced by the applicants from Michael Bridgman directed to the following matters: (i) the existence and application of any Australian standard pertaining to driveways and vehicular manoeuvrability within them as relevant to the consideration of the development application determined by the Council on 12 December 2011 in respect of premises known as 48 Kite Street, Orange, and (ii) the practice of a local authority applying the identified standard when determining vehicular access to a garage on a residential property of the kind intended by the development application considered by the Council for the site at 48 Kite Street, Orange on 12 December 2011. (2)Direct that the applicants notify the respondents by 4.00pm on Friday 29 July 2012 as to whether they intend to file any further affidavit by Michael Bridgman providing evidence in accordance with the leave given by Order 1. (3)Direct that the applicants file and serve any amended Summons and Points of Claim so as to give effect to the foreshadowed amendment to paragraph 1 of the Summons and paragraphs 31 and 32 of the Points of Claim presently filed. (4)Vacate the directions hearing fixed for Friday 29 July 2012. (5)Stand over the proceedings for further directions to Friday 3 August 2012. (6)Costs of the applicants' notice of motion are to be costs in the proceedings. (7)Exhibit D tendered on the motion hearing may be returned.