[2017] NSWLEC 124
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Source
Original judgment source is linked above.
Catchwords
[2017] NSWLEC 124
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Judgment (6 paragraphs)
[1]
Solicitors:
N/A (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2024/54349-002
[2]
EX TEMPORE JUDGMENT
The Applicant Ms Lo has commenced Class 1 proceedings appealing the refusal by the Respondent Sutherland Shire Council (the Council) of a modification application (MA) of a dual occupancy and strata subdivision at a property in Menai for which development consent was granted on 23 September 1998. Ms Lo is representing herself in her appeal.
Ms Lo has filed a notice of motion dated 9 July 2024 appealing a decision of the Senior Deputy Registrar on 21 June 2024 allowing the Council to rely on a specified town planning expert in relation to its contention 1. Contention 1 identifies as an issue whether the MA is substantially the same as the 1998 development consent. The notice of motion dated 9 July 2024 seeks an order that the Senior Deputy Registrar's decision be discharged (meaning set aside) or alternatively that a single court appointed expert be ordered.
Part of Ms Lo's affidavit in support of the notice of motion dated 9 July 2024 was read attaching the correspondence between the parties.
An affidavit of Ms Amy solicitor for the Council dated 19 July 2024, except the second sentence in par 17(c), was read. It also attached much of the same correspondence. No transcript of the hearing before the Senior Deputy Registrar was in evidence as none was able to be supplied in time following an application for it being made by Ms Amy. Ms Amy attests to her recollection of the Senior Deputy Registrar's comments at par 16. The affidavit dated 19 July 2024 identifies a chronology of events leading up to the hearing before the Senior Deputy Registrar on 21 June 2024.
The parties agreed before me that they made submissions to the Senior Deputy Registrar in support of their position on 21 June 2024.
The Class 1 appeal was commenced on 12 February 2024. By email dated 28 March 2024 (Ex 1) the Council's solicitor advised the Applicant of the capacity to adduce expert evidence and provided information about the Court's processes in relation to expert evidence. This is consistent with par 21(c) of Practice Note Class 1 Residential Development Appeals which requires that matters of expert evidence be generally dealt with at the first callover. The Council filed its Statement of Facts and Contentions (SOFAC) on 28 March 2024 and the Applicant's SOFAC in reply was filed on 13 May 2024. The Council raised at the first callover on 2 April 2024 that it wished to rely on expert evidence. The Senior Deputy Registrar did not make such an order and adjourned the issue of expert evidence to an online directions hearing on 17 May 2024. The matter was set down for hearing on 2-3 September 2024. The Council flagged that it wished to rely on expert evidence in online court communications on 16 May 2024 in responding to the Applicant's request for an adjournment of the 17 May 2024 directions hearing. The matter was stood over to 21 June 2024, the Senior Deputy Registrar noting the issue of expert evidence would be dealt with on the next occasion. The Council sought leave to rely on expert evidence of its town planner at the further directions hearing on 21 June 2024, the Council's application to rely on expert evidence being provided for under r 31.19 and r 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The Senior Deputy Registrar made orders on 21 June 2024 as follows:
The Court orders that:
1. The Applicant is to file and serve the modification application documents (MA 22/0106) by 28 June 2024.
2. Under r 31.19 and r 31.20 of the Uniform Civil Procedure Rules 2005 the Respondent is granted leave to rely on expert evidence of Evan Phillips (Town Planner) in relation to contention 1 and is to prepare an individual report to be filed and served by 22 July 2024.
This order was amended on 4 July 2024 on the Council's application to change the name of the town planner to David Sheehan. Mr Sheehan has been substituted as he did not undertake the original assessment of the Applicant's MA and this was considered preferable in providing independent evidence to assist the Court. The Council wishes to use its town planner to save costs and time.
[3]
Council contention 1
The Council's first contention states:
1. Substantially the same development
The application to stage the consent is not substantially the same, it is radically different than the original development consent.
Particulars
A. The staging will create a vacant strata lot.
B. The modification application fails to demonstrate that the application will be substantially the same the development as originally approved. The staging of this consent is radically different to the original development consent for a dual occupancy development with strata subdivision.
C. SSLEP [Sutherland Shire Local Environmental Plan] 1993 provided that within the 2(a1) zone, dual occupancies are permitted, "except on internal lots". An internal lot is defined under the plan as follows:
Internal Lot means a lot the only means of access to which is an access corridor (a hatchet shaped lot) or a right of carriageway over another lot.
D. The staging of the application for strata subdivision prior to construction of the second dwelling will create a lot whereby the only means of legal and practical access that lot will be obtained via an access corridor from Butler Place. This in effect creates an internal lot and will fail to meet the original permissibility requirements for dual occupancy development in the 2(a1) zone as approved.
E. The MA fails to provide any certainty that the future landowner(s) of the vacant will be bound to construct the dwelling approved by the original consent and construction certificate.
F. Further, during the lapse of time between the issue of consent in 1998 and the proposed staging and construction of a future dwelling on the Site, the planning regime has changed significantly, in particular:-
i. Dual occupancy development is now prohibited on the Site,
ii. The Site is now mapped as bushfire prone land,
iii. Bushfire protection measures were not considered when the original consent and construction certificate were issued,
iv. The BCA and NCC has changed within this period.
G. Qualitatively and quantitatively the development as proposed will not longer be substantially the same development as that which was original granted consent.
[4]
Applicable rules
This appeal of the Senior Deputy Registrar's decision was enabled by r 49.19(1) of the UCPR. Principles for the review of a registrar's decision were identified in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (Tomko (No 2)) at [6]-[9] (Hodgson JA, Ipp JA agreeing). These paragraphs state:
[6] I agree that a review of a decision of a registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion.
[7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.
[8] In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.
[9] In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.
The Applicant bears the onus of establishing a basis exists for setting aside the Senior Deputy Registrar's decision. The issue identified is one of practice and procedure suggesting, as identified in Tomko (No 2), that the Applicant must demonstrate an error of law. There is no fresh evidence before the Court and no relevant change of circumstance has been identified. Further the Applicant must establish that it is in the interests of justice that the order be set aside. The Council considers that the Senior Deputy Registrar's decision should remain in place and the notice of motion dated 9 July 2024 be dismissed.
I do not consider the Applicant has discharged her onus of demonstrating any relevant error by the Senior Deputy Registrar or that it is in the interests of justice that the decision be set aside. It follows that I will not make an order setting aside the Senior Deputy Registrar's order of 21 June 2024 and will not make an order appointing a single expert witness which the Applicant sought in the alternative for the following reasons.
The Applicant alleged what were described as several errors of law which focussed extensively on the particulars specified in contention 1.
No error of law is demonstrated by order 1 made by the Senior Deputy Registrar not specifying which particulars in contention 1 the planning expert should address. There is no such legal requirement for the Senior Deputy Registrar to have done so and also no practical reason to do so. Concerns expressed by the Applicant that the nominated expert might stray beyond the particulars are not relevant to this appeal. In Malek v Woollahra Municipal Council (2017) 277 LGERA 401; [2017] NSWLEC 124, in the course of determining that expert evidence would be permitted, that individual particulars were considered does not support this submission, simply reflecting the arguments and consideration in that matter. I note that the final order permitting expert evidence was made in general terms, not referring to individual particulars in any event.
In relation to the submission that there was insufficient information before the Senior Deputy Registrar when she made her decision, the Senior Deputy Registrar had before her the SOFAC and SOFAC in reply. She was entitled to consider that was sufficient information to enable her to consider that she could discharge her duty and is not strictly a matter that can arise in this appeal in any event. It is the responsibility of the parties to place before the Court matters they wish to be taken into account in any disputed matter. That the Applicant has subsequently filed with the Court the MA and 1998 development consent can be noted but has no relevance to this appeal of the Senior Deputy Registrar's decision. I note that the MA would generally be filed with the commencement of the Class 1 appeal in any event and should have already been on the Court file if it was not. Further, there was no onus on the Senior Deputy Registrar to look at material not otherwise referred to expressly by the parties in argument. That the Senior Deputy Registrar did not refer to an email dated 28 May 2024, which the Applicant submitted was an error of law, is not supported by her submission from the bar table that the email was on the Court file. The Applicant accepted that she did not draw the email to the Senior Deputy Registrar's attention when asked about this by me in Court.
Further the Applicant has not demonstrated any lack of procedural fairness by the Senior Deputy Registrar in making order 1 restrict the expert evidence to contention 1 without referring to the particulars in the contention in her order.
I have not had regard to some of the Applicant's written submissions which dealt with the merits of her appeal in the context of contention 1 as these are not relevant to this appeal. Her assertion that individual particulars in contention 1 do not warrant expert planning evidence was not accepted by the Senior Deputy Registrar given that she made the order sought by the Council.
Having reviewed contention 1, I accept the Council's submission that the appeal involves questions of mixed fact and law and expert evidence is appropriate. Such planning evidence is commonly relied upon in appeals of this kind.
In relation to the alternative order sought of a court appointed single expert, for the reasons provided by the Council this should not be made given the history of the proceedings to date and the desirability of keeping the current hearing dates in early September 2024.The Applicant has had ample opportunity to consider whether she should have planning evidence to support her appeal, as first identified to her in the Council's email dated 28 March 2024. Appointing a court appointed expert now is likely to involve time in choosing an appropriate person, additional cost to the Council and the need to prepare evidence suggests there is a high likelihood that the hearing dates will not be able to kept. The current timetable requires that the expert report of the Council's planner be filed shortly by 29 July 2024. The Applicant will have that in good time for the hearing in early September 2024. In the interests of the just, quick and cheap resolution of this residential development appeal the alternative order will not be made.
No basis for setting aside the Senior Deputy Registrar decision of 21 June 2024 or making the alternative order having been demonstrated the notice of motion dated 9 July 2024 is dismissed.
The Council asked that costs be reserved.
[5]
Orders
The Court orders:
1. The Applicant's notice of motion dated 9 July 2024 is dismissed.
2. Costs reserved.
[6]
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Decision last updated: 30 July 2024