The Expert Evidence
29 The expert evidence on which Glenhaven primarily relied in these proceedings was that of Mr Neil Ingham, a town planner of considerable experience. His evidence was clear that the first DA had no reasonable prospects of success before either the Council or the Court on appeal. Mr Ingham supported his opinion with detailed and cogent reasoning.
30 That the Council was unlikely to approve the application was common ground throughout. The real issue was whether there was a reasonable prospect of success on appeal to the Land and Environment Court.
31 Even a cursory inspection of the site plan for the first DA, reveals a development of considerable intensity which inevitably raised real issues about the amenity of occupants and its impact on the amenity of neighbouring properties. However, professional negligence requires a degree of inappropriateness which goes well beyond a judgment about desirability.
32 Mr Ingham's report is the most comprehensive evidence in support of the appellants' contention that the first DA had no reasonable prospect of success in the Court. He said, inter alia:
"It is my opinion that the development as proposed in the first development application did not have any reasonable prospect of being approved mainly due to the following factors.
· The proposed development had attached 2 storey apartment buildings with one of the buildings having a length of 127 metres and containing 26 dwelling units. Another building had a length of 95 metres containing 24 units. For some people the distance which they would be required to walk from their carparking space to their dwelling unit was up to 100 metres. In my opinion this is an unacceptable length of travel from a carparking space to a dwelling for aged or disabled persons. Furthermore the security in that movement requires people to leave the lift and move to their dwelling unit along a walkway between units of up to 60 metres.
· Secondly the proposed development, being wholly two storeys in height, does not fit within the general character of buildings in the Rural BA Zone which tend to be lower scale and much lower in density. While the development application could not be refused on the grounds of it having a floor space ratio of less than 0.5:1, the configuration of the units and their bulk and scale were grounds upon which the application could be refused. In my opinion the scale and bulk of the buildings would have ensured a refusal of the application. The length of some buildings without a break is unacceptable in the Rural BA Zone.
…
Therefore, having regard to the proposed development and the matters discussed above, it is my opinion that the development application for 140 dwelling units for aged or disabled persons as proposed in the first development application did not, at any time, have any possibility of receiving development consent.
…
… Having reviewed the first development application plans … and the amended proposal … it is in my opinion there was never any prospect of the first development application being approved by the Council or by the Court.
… Given the impact of the first development application, it is my opinion that it would be extremely difficult and unlikely for any architect to have achieved a satisfactory development of 140 three bedroom dwellings on the site.
The professionals advising the client in this matter should have undertaken a site analysis of the site prior to the preparation of any conceptual plans and should have prepared a conceptual development on the site to determine the likely impacts of the development prior to undertaking the preparation of detailed plans. This, in my opinion, would have illustrated the extreme difficulty (if not impossibility) of preparing an application that would be likely to be approved by the Council or the Court."
33 Mr Ingham also said:
"… I would have certainly advised the client in respect of the first development application to not proceed to appeal as I believe the development application had no chance of success."
34 It is convenient to deal now, as James J did, with the other expert evidence said to support, in various respects, the comprehensive analysis by Mr Ingham.
35 Mr Ian Glendinning is a town planner who assisted Mr Bourke with the second DA. He played no role in the first DA. In his evidence he said:
"I note that at paragraph [25] of the Judgment in the First L & E Proceedings, the Court came to the view that the design of the development would 'adversely affect the rural character of the surrounding properties to an unacceptable degree' … The Court also found at paragraphs [26]-[34] that the development did not comply with the requirements of clauses 25(b) and (c) of SEPP 5. Clause 25(b) required that a development should provide neighbours with visual and acoustic privacy. Clause 25(c) required adequate sunlight to the main living areas of residents and neighbours and to substantial areas of private open space.
These problems were always going to arise with a design which sought between 132 and 140 two storey dwellings having regard to the site characteristics [of the] Glenhaven property and were evident to me from the first occasion I reviewed the plans."
36 Glenhaven contended in this Court that James J gave inadequate weight to the opinion expressed by Mr Glendinning, especially to what he said was his reaction when he first saw the plans to the first DA in 2002. His Honour came to the conclusion that Mr Glendinning's opinion was formulated with the benefit of hindsight after seeing the Council Report and the Court judgment.
37 In my opinion, James J was correct to give limited weight to Mr Glendinning's opinion for the reasons he gave. First, Mr Glendinning expressly admitted that in 2002 he had given, at best, cursory consideration to the plans for the first DA. His initial reaction, even if accepted as having occurred, could not be given much weight. Secondly, Mr Glendinning's evidence that he had formed the view that even the second DA allowed for too many units (ie 57) was rejected by his Honour on credit grounds. That conclusion was justified as Mr Glendinning had made comments in writing supportive of the second DA at the time it was submitted, but gave evidence on affidavit that he had at that time formed the opinion that the second DA had no reasonable prospect of success.
38 His Honour's finding on credit must impinge on the weight that his Honour, or this Court, can attribute to Mr Glendinning's recollection of what he thought in 2002 about the first DA. In any event what he said about that was that it was evident to him from the first occasion that "problems were always going to arise".
39 In my opinion, James J was also correct to conclude that insofar as Mr Glendinning gave expert evidence of opinion relevant to prospects of success of the first DA, this was determined to a substantial degree by the advantage of hindsight. Indeed, the structure of his affidavit is based, in large measure, on the reasons for judgment in the Land and Environment Court. His references to the first DA were few and more by way of aside than analysis. His primary focus was on the second DA with respect to which he expressed the opinion that it had no reasonable prospect of success. This opinion was not supported by Mr Ingham and there is no appeal from the decision of James J in that respect.
40 I agree with James J that Mr Glendinning's evidence on the first DA provides little, if any, weight to support the evidence of Mr Ingham.
41 Mr Martin Pickrell, an architect, also gave evidence in support of Glenhaven. He prepared the, ultimately successful, third development application. He said:
"I would never have prepared any Development Application under SEPP 5 in relation to the Glenhaven Property containing more than 41 dwellings. Had I been requested by a client to prepare a design for the Glenhaven Property as part of a SEPP 5 Development Application with any more than a maximum of 50 dwellings (being 2 and mostly 3 bedroom dwellings with double garages where possible), I would have informed the client that there was little or no possibility of such a design being approved by Council having regard to the size and physical characteristics of the Glenhaven property and the rural character of the surrounds. Had I been instructed to prepare a design on the Glenhaven Property with 132 or 140 dwellings, I would have had no hesitation in informing a client that there would be no reasonable possibility of the Council approving such a design and it ought not even be considered. I believe that preparing such an application would have been a waste of time and expense. I would have strongly advised against such an application being prepared."
42 As this passage makes clear, Mr Pickrell's evidence was directed to the possibility of approval by the Council. No one ever thought that likely. His Honour set out Mr Pickrell's express evidence that he had no opinion about whether the Court was likely to approve such a development. Mr Pickrell's reasoning was, and is, pertinent on substantive issues and James J referred to it. It is of some, albeit limited, assistance on the issues before this Court.
43 One element in the appellants' submission that the burden of the evidence was strongly against the finding that his Honour made was the fact that, Mr Young, as stated above, did not support the respondents' case because he failed to give evidence in terms of the correct test, namely, that of a "reasonable prospect of success". His evidence, the appellants submit, should be understood as a reference to "a prospect, however slim" of success "because the application complied with the technical requirements of SEPP5".
44 Mr Young's report was filed in response to the report of Mr Ingham on behalf of the appellants. Mr Young addressed himself to the same questions as those identified by Mr Ingham. The first such question was in the following terms:
"Did the First Development Application have any reasonable prospect of being approved given that it sought permission to erect 140 double storey dwellings or in relation to the design generally?"
45 It was in this context that Mr Young said the following:
"In my experience both as a Council officer and consultant I would not say that an application is certain of approval or rejection at Council or the Land and Environment Court even if it complied with the objective aspects of the relevant controls.
In my view this application complied with the technical aspects of SEPP5.
The Court found it did not comply with the subjective conditions of rural character and internal amenity. These are matters for the subjective consideration of either the Council or the Court.
This first application had in my opinion a chance of success in the Court. Any SEPP 5 must affect rural character to some extent." [Emphasis added]
46 Mr Young turned his attention to the questions posed for, and answered by, Mr Ingham in which Mr Ingham made a number of observations to which Mr Young responded. Those observations by Mr Ingham included, to repeat:
"Having reviewed the first development application, plans and amended plans and information accompanying the original proposal and the amended proposal … it is in [sic] my opinion there was never any prospect of the first development application being approved by the Council or by the Court.
…
Given the impact of the first development application, it is my opinion that it would be extremely difficult and unlikely for any architect to have achieved a satisfactory development of 140 three bedroom dwellings on the site.
…
The professionals advising the client in this matter should have undertaken a site analysis at the site … This, in my opinion, would have illustrated the extreme difficulty (if not impossibility) of preparing an application that would be likely to be approved by the Council or the Court."
47 Mr Young's response to this part of Mr Ingham's report was as follows:
"In regards to the series of questions under (c) on page 13 of his report I generally agree with his comments except for the absolute negative of 'never'. As stated above I consider the application had a chance in light of its compliance with the technical requirements."
48 There is some force in the appellants' submission that, insofar as Mr Young accepted the terminology of "extremely difficult and unlikely" or "extreme difficulty (if not impossibility)", as set out above, his use of the words "a chance" may not have amounted to a "reasonable chance".
49 However, Mr Young is a town planner and not a lawyer. With respect to the first passage referred to above, he was responding to Mr Ingham's reply to a question as to whether or not the first DA had "any reasonable prospect of being approved". If it was intended to submit that Mr Young was limiting his evidence and response to a mere chance or a slim chance rather than a "reasonable chance", it should have been put to him. It was not.
50 He was, however, cross-examined with respect to the part of his report that consisted of summary and conclusions, which was as follows:
"Having read all the information provided and based on my experience as a Council officer and consultant I conclude:
1 That the first and second applications had very little chance of approval from Council considering Councils [sic] concerns over SEPP5 developments in rural areas.
2 That the first application had a chance of success at the LEC.
3 The amendments to the first development application did not substantially improve the potential for approval in either Council or the Court.
4 The second development application being significantly amended to the first application and addressing the matters of refusal from the Court had a strong chance of success and a stronger chance with further amendments to access.
5 I am of the opinion that both applications are competent applications." [Emphasis added]
51 The cross-examination was, relevantly, as follows:
""Q If you just go to your summary and conclusions at section 10 of your report you will see that you seem to accept that the first and second DAs had very little chance of approval from council considering their concerns over SEPP 5 developments in rural areas and that's your opinion, isn't it?
A That's my opinion, yes.
Q And you say, and this is the significant point of difference between you and Mr Ingham, is it not - in paragraph 2 you say it had a chance of success?
A Yes.
Q Now again just focusing on your opinions there at paragraph 1 and 2, when you give a client advice concerning the merits of a development applications it's your experience that clients are not interested in whether a development application technically complies with the legislative requirements, are they?
A Many clients are and in my experience they want to know first off whether or not it does technically comply. There is an expectation that it will technically comply. Then they will balance up the merits of the subjective issues.
Q That's right, but, for example, a development application can be prepared that technically complies but has little chance of success?
A Yeah, that is a possibility, but generally one would assume, particularly in the present way in which councils look at development applications, that if you comply with all the technical aspects of an application then you should have an expectation of a reasonable chance of success." [Emphasis added]
52 Mr Young's reference to a case of "technical" compliance giving rise to an expectation of "a reasonable chance of success" does suggest that he may have been using the terminology "chance of success" in his report in the sense of a "reasonable chance". Such ambiguity as exists has not been resolved, but it cannot be said that Mr Young lends no support to the analysis of Mr C Blyth, the expert primarily relied on by the respondents. Mr Young's analysis of the issues supports both sides in different respects.
53 When Mr Bourke became aware of Council objections to the first DA, which objections included town planning considerations, he contracted Mr Blyth to assist with a submission to Council. For an architect, that step was entirely appropriate. Mr Bourke was an architect and Mr Blyth was a town planner. The areas of expertise overlap but are, in important respects, distinct. Mr Blyth's skill and experience was not challenged. Mr Bourke was entitled to rely on him, although I note that Oaktwig did not suggest that such reliance discharged its own duty.
54 Mr Blyth prepared a report dated 23 July 2002 which was submitted to the Council in response to the criticisms of Council officers. Mr Blyth also gave evidence as an expert witness on the appeal from the refusal of the first DA in the Land and Environment Court. Regrettably, his report and evidence in that court was not tendered before James J. Only brief excerpts are set out in the judgment of the Land and Environment Court. Finally, Mr Blyth gave evidence before James J.
55 An important issue on this appeal is whether Mr Blyth's analysis and opinions were sufficient to support the opinion Mr Bourke held to the effect that the first DA had a reasonable prospect of success in the Court, when weighed in the balance against the other expert evidence in the overall context in which Oaktwig discharged its duty of skill and care.
56 Mr Blyth's report of 23 July 2002 stated, most relevantly:
"In response to the matters referred to in the recommendation for refusal of the application we say as follows:
1 Loss of Class 3 Agricultural Land
…
It is also noted with some force that SEPP No. 5 permits such development on rural land that adjoins land zoned urban such as, for example, in the location of the subject site where there is urban development immediately opposite.
It does not permit such development on any other land such as for example land to the rear of the subject site which would not be adjacent to urban land. The establishment of SEPP 5 housing on this site does not mean that all sites abutting it are then automatically complying sites, through leapfrogging.
As such the 'loss' of 2.899ha out of the entire area of land zoned rural in Hornsby cannot be regarded as significant nor as a precedent for the loss of rural land or the rural character of the area generally.
…
7 Non Compliance with SEPP No. 5
(a) Diversity of housing.
The assertion that the development does not provide the diversity of housing SEPP 5 requires is entirely incorrect. The SEPP is written from stand point that within the state at present there is insufficient housing that is designed to suit older persons and persons with a disability.
The subject proposal provides 140 dwellings that will assist in reducing the current deficiency and as such contributes effectively to the diversity sought. Note that in the recent Land & Environment case Smith -v- Hornsby Council at 35- 39 Berowra Waters Rd, Council ran this same issue and were unsuccessful, the Court consenting to the proposal.
(b) Height and scale of building B & D and provisions of Cl.25(a)
Again the buildings in the proposal are medium density housing and represent a different character to what might otherwise be found in the locality. This is said however noting the suburban residential development opposite and the large nursery with a front bitumen car park adjoining.
In view however of the large setbacks, heavily landscaped environment of the site and the two storey scale the overall development of the site has been proposed to more than address the design and locational parameters of SEPP 5."
57 He concluded:
"(g) The proposal is not of good design as required by Cl.3(1)(c)
Simply for all the reasons mentioned in this report and those matters addressed in the report of other consultants accompanying this resubmission, we are of the opinion that the proposal is unquestionably of good design as sought by the SEPP.
Council has not provided any sustainable evidence to the contrary."
58 And:
"In conclusion we state that we have reviewed the DA submission and drawings and read the officers report in this matter and the recommendation for refusal. In looking at those matters listed for refusal and then by reference to the actual situation we cannot understand and certainly do not agree with the conclusions reached.
We believe in the circumstances of the case and with the benefit of the additional consultant's reports accompanying this submission, that the proposal requires an urgent comprehensive review by Council."
59 Mr Blyth's evidence to the Land and Environment Court is not in evidence. However, the judgment of that Court states:
"[17] Dr R Lamb, a visual analyst retained by the council gave evidence on visual impact. The applicant's expert was Mr C Blyth, a consultant planner. Dr Lamb and Mr Blyth differed in their assessment of the character of the surrounding area. Mr Blyth took his cue from the adjoining Flower Power site and the residential development across the road, while Dr Lamb considered that the majority of the surrounding area was rural in character. We agree with Mr Blyth that the Flower Power site is a hard and dominant development. However, this is the only development of its kind visible from the subject site. Its existence is not a reason to extend the un-rural character further.
…
[21] Mr Blyth, on page 19 of his statement, commented on the issue of rural character, amenity and streetscape:
The built form is typically residential in its design appearance and proposes high quality generous floor plans with variety in size and style, in a two-storey built form. The form of the development enhances amenity through having well separated building enabling large landscaped separations between buildings and to the streetscape reducing scale and enhancing the landscaped setting of the development. The development will in my opinion undoubtedly have character and identity and will provide and [sic] attractive residential environment for future occupants."
60 That court rejected this evidence, as it was entitled to do. However, the relevant issue for present purposes is the content and reasonableness of the opinion, not whether it was the correct or preferable view.
61 In his affidavit in these proceedings Mr Blyth said, most relevantly:
"There are a number of quite dense and higher retirement villages located on Old Northern Road in the district closer to Castle Hill and in other locations in the Hills district. Indeed, such developments require large land holdings and there are few locations where such sized landholdings can be otherwise found.
To this extent the proposal could also be concluded as a development not uncommon in the district. Again the fact of the proposal on the abutting land for 130 dwellings in 2 storey buildings (ultimately approved) is also required to be taken into account when considering the character of the locality."
62 And:
"The proposal was in full compliance with the development standards of SEPP No. 5 and site analysis was undertaken by the architect. That site analysis revealed that there was a proposal for 130 dwellings immediately abutting, that the subject site was highly disturbed by deep filling from a dam excavation and had been subject to excavation at the rear associated with a former use of the land by Flower Power.
The existence of the very large commercial operation carried on by Flower Power and residential development opposite in Baulkham Hills further gives weight to the conclusion that the nature and character of what was once a rural area is changing."
63 He concluded:
"In my opinion the development is one that could and should have received development consent. The proposal complied with the technical requirements of SEPP No. 5."
64 James J expressly rejected an attack on Mr Blyth's credit. In large measure, the issues before James J and in this Court involve a choice between Mr Ingham's opinion and that of Mr Blyth. Each is supported to some degree by the evidence of others. Furthermore, contemporaneous statements and the objective circumstances must be given appropriate weight. Nevertheless, it was appropriate for James J to identify the objections raised by Mr Ingham and to consider the different conclusions of Mr Blyth.
65 In this regard it is, in my opinion, of some significance that Mr Blyth expressed his views at or about the time of the alleged breach of duty and maintained his opinion. His evidence was not affected by the subtle, but real, effect of hindsight arising from the reasons of the Land and Environment Court when rejecting the appeal.
66 Glenhaven submitted that Mr Blyth's evidence should be taken as directed only to "technical" compliance with SEPP5, most relevantly compliance with cl 14 and the 0.5:1 floor space ratio. He did expressly refer to compliance with technical requirements. However, his reasons, set out above, indicate that his opinion was not based on that factor only. The suggestion that it was so based was not put to him in cross-examination.
67 To refer only to his 23 July 2002 report, written at about the time of the alleged breaches by Oaktwig:
· He noted the adjacent residential development and rejected the proposition that the proposal would affect the rural character of the area;
· On density and scale he drew attention to the residential development and the Flower Power site;
· He asserted that the proposal was of good design; and
· He expressly disagreed with conclusions on such matters expressed by Council officers.
68 He maintained his position in subsequent statements. The Commissioners in the Land and Environment Court appear to have interpreted Mr Blyth as focussing on "technical" compliance. This Court does not have the evidence on which that conclusion, expressed in terms of its "appearance" only, was based. That interpretation is not consistent with the evidence before this Court.
69 Mr Blyth's analysis and opinion was entitled to be taken into account by Mr Bourke at the relevant time. It was also entitled to be given significant weight by James J.