Malek v Woollahra Municipal Council

The Applicant's claim that the motion should be allowed

1. The Applicant's claim that the motion should be allowed is predicated on her principal argument that the expert architectural evidence of Professor Tzannes is reasonably required for the Applicant to respond to three contentions in the Respondent Council's Statement of Facts and Contentions. These contentions are that the proposed building: is of an excessive height ('Contention 1'); is of an excessive bulk and scale ('Contention 2'); and is the subject of public interest concerns ('Contention 8'). More specifically, the Applicant referred to one particular for each of these contentions: Contention 1, Particular (d): "…It is considered that the approved height does [not] have any restrictions upon the amenity or useability of the dwelling"; Contention 2, Particular (a): "The bulk and scale of the development is inconsistent with the Desired Future Character of the Vaucluse West Precinct (B1.10.2 under [Woollahra Development Control Plan 2015]) …"; and Contention 8, Particular (b): "There is no justification for the increased height of the building."
2. With respect to the above identified particular for Contention 2, the Applicant referred to the following passage from B1.10.2 of the Woollahra Development Control Plan 2015: The Vaucluse West precinct is to maintain the evolution of low density residential development through the introduction of well-designed contemporary dwelling houses that retain views of the harbour from public spaces and provide for view sharing from private properties.
3. On this basis, the Applicant submitted that the above mentioned particulars concern architectural matters (that is, matters of design excellence, architectural integrity and internal amenity) rather than town planning matters. Consequently, it was said that these matters can only be properly addressed by expert architectural evidence, as demonstrated by Professor Tzannes's statement setting out the evidence that he would give in the proceedings. For this reason, the Applicant argued that this expert evidence is reasonably required.
4. Moreover, as with the Applicant's visual impact expert, Mr Richard Lamb, the Applicant submitted that Professor Tzannes would only give evidence on a narrow range of discrete issues (as identified above). Hence, the Applicant denied that the inclusion of Professor Tzannes would lead to duplication, practical issues at the hearing, or result in the proceedings becoming significantly lengthier or more expensive.

The Respondent Council's claim that the motion should be dismissed

1. In essence, the Respondent Council's position with respect to the Applicant's motion is that the Applicant has failed to establish that the expert evidence of Professor Tzannes is reasonably required for these proceedings. This was said to particularly be the case in circumstances where the motion, if granted, would likely cause unnecessary time delays and additional costs. Moreover, the Respondent Council also claimed that the Court ought to exercise its discretion not to make the orders sought because there is an unresolved awkwardness in the Applicant's architect giving expert evidence in these proceedings and in light of the delay of the Applicant in (re)applying to adduce such evidence.
2. First, the Respondent Council denied that the expert evidence of Professor Tzannes is reasonably required because: the relevant issues identified by the Applicant are matters of town planning (as a broad discipline of expertise) rather than architectural evidence; there would be inevitable (and undesirable) duplication between the evidence of the Applicant's town planner and Professor Tzannes; and the Class 1 Application already features a detailed architectural design statement authored by Professor Tzannes. Furthermore, the Respondent Council observed that, if architectural evidence is necessary, the Commissioner presiding over the substantive hearing is empowered to obtain assistance in this respect: s 38 of the Land and Environment Court Act 1979.
3. The Respondent Council amplified these submissions by arguing that the provision of such evidence would be unreasonable because it may require the Respondent Council to obtain its own urban design/architectural expert and would likely create practical problems for the conduct of the proceedings. Consequently, the Respondent Council said that it was likely that the proceedings would be marred by unnecessary costs and time delays.
4. Secondly, the Respondent Council submitted that the Court would be wary about granting the Applicant's motion in circumstances where the relevant expert has been the Applicant's ongoing project architect. Although Mr Cottom for the Respondent Council explained, in fairness, that the circumstances were not strictly apposite, he nevertheless submitted that there was some support to be found for his submission in the ruling of Lloyd J in Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238 at [11]: In my opinion, the report of Mrs de Carvalho should be rejected. She is not independent from a party but, on the contrary, is an employee of a party. Moreover, she appears to have been heavily involved in [the] proposal for the development of the land in question and so is not independent from the matter in dispute. Finally, as I have already noted, the report itself contains not only facts but also partisan opinions, which demonstrate that she has clearly adopted the role of an advocate for a party.
5. In this respect, the Respondent Council noted that the instructions provided to Professor Tzannes (to guide the preparation of his statement setting out the evidence that he would give in the proceedings) are unknown.
6. Finally, the Respondent Council submitted that, in exercising its discretion as to whether to make the orders sought in the Applicant's motion, the Court should take into account the delay of the Applicant in filing the motion. Relevantly, the Respondent Council noted that whilst the Respondent Council filed its Statement of Facts and Contentions on 7 August 2017, it was not until 8 September 2017 that the Applicant's motion was filed. Indeed, this was said to amplify the Respondent Council's argument that the motion, if granted, would likely cause unnecessary time delays and additional costs.

Consideration

1. In determining the appropriate course in response to the Applicant's motion, I have fully considered the evidence placed before the Court (none of which was before the Registrar on 8 August 2017), including the affidavit of Ms Vatala sworn 8 September 2017 and the annexures thereto (including the statement of proposed evidence prepared by Professor Tzannes) and a photo montage of the proposed dwelling (Exhibit A). I have also considered the Vaucluse West Precinct provisions in the Woollahra Development Control Plan 2015 and the submissions of both parties. Ultimately, I have decided to determine the application in favour of the Applicant, and make the orders sought, on the following basis.
2. In considering any interlocutory application, a fundamental general principle must be borne in mind: namely, "they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed…": Tomko v Palasty (No 2) at [10]. The qualifying words to that passage which follow are relevantly important: "unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence". In this case, although the Registrar considered the issues regarding evidence to be called, it was on the basis of the (limited) material then available. Importantly, the Registrar's orders, with the words "unless the Court otherwise orders", left an avenue open to come back to the Court regarding issues of expert evidence if the circumstances warranted it. Further, the usual liberty to restore was provided in the Registrar's Order 14.
3. Whilst the Applicant's motion seeks similar orders to those that the Registrar declined to make on 8 August 2017, the motion does not seek to challenge or attack the Registrar's decision of 8 August 2017. More specifically, the Applicant does not assert that the Registrar made anything but a correct decision (legally and on its merits) by, presumably, concluding that there were insufficient grounds - at that point in time - for the Court to be satisfied that the expert evidence of Professor Tzannes was reasonably necessary in the proceedings. In seeking to understand what material was before the Registrar and whether the issues regarding expert evidence were sufficiently canvassed in the documentation, it is noted that this decision was made (early in the morning) in the very relevant context that the Applicant and the Registrar had only received the Respondent Council's Statement of Facts and Contentions after the close of business the evening before.
4. In accordance with standard practice, a registrar generally does not provide written reasons for procedural orders such as those made on 8 August 2017. Therefore, in the case of a review of such a decision, the Court can only surmise as to the reasons for the decision. In circumstances such as those presently before the Court, where there is not a review as such but rather a referral by the Registrar on her own motion, a greater degree of flexibility is available to consider new material, particularly in circumstances where leave to come back to the Court to add to or vary orders already made is contemplated within the original orders. It is significant that the Registrar's orders, which flowed from her decision to decline to include Professor Tzannes's expert evidence, explicitly recognise that the Court might vary the orders with respect to expert evidence. Indeed, the relevant procedural rules and guidelines contemplate that a party may demonstrate to the Court that additional experts are reasonably necessary after directions for expert evidence have been made.
5. Hence, the question for the Court is whether, on this fresh motion referred to the Court, there is material now before the Court which justifies a variation of, or addition to, the original orders concerning expert evidence. As such, exercising its discretion effectively via the avenue created by the Registrar, the Court is not required to determine whether the Registrar was right or wrong in making the original orders. Rather, the Court is charged with the responsibility to examine the material now before it and determine whether an additional order with respect to expert evidence ought to be made.
6. The Registrar on 8 August 2017 did not have the benefit of the Applicant's Statement of Facts and Contentions in Reply nor have an opportunity, critically, to read the statement of proposed evidence prepared by Professor Tzannes. In this regard, although an architectural design statement prepared by Professor Tzannes (dated 23 January 2017) was part of the documentation accompanying the modification application, I consider that this is of a different nature to the statement of proposed evidence, which was prepared for the proceedings essentially in response to the Respondent Council's stance (as is apparent in its Statement of Facts and Contentions). Further, with respect to the Respondent Council's Statement of Facts and Contentions, in fairness to the Registrar, unless she truly "burnt the midnight oil", which should not be a reasonable expectation, she most probably had a limited opportunity to review that Statement before her 9.00 am directions hearing (given that it had been filed the evening before the hearing after the close of business, when the registry was closed). The Court has now had the opportunity to consider that document afresh in the context of the further material which I consider to be relevant.
7. The Court has had the advantage of both considering all the material now before it which concerns architectural design issues and hearing the submissions of counsel for the Applicant, Mr Ireland, setting that material in context, specifically the above mentioned relevant provisions of the Woollhara Development Control Plan 2015. The Court is satisfied that the integrity of the architectural design, especially with respect to the internal design objectives of the proposed dwelling in the context of its interrelationship with its external setting, will be an important consideration in this case. Accordingly, the Court agrees with Mr Ireland that if such issues were subsumed into a more general town planning analysis, it would probably deprive the commissioner who will hear and determine the matter of evidence that will likely be material.
8. The Applicant, via its motion, comes to the Court with a new application regarding expert evidence and has satisfied the Court that there is now a sufficient basis for the Court to decide that the expert evidence of Professor Tzannes is reasonably necessary for a proper consideration of the issues when the Class 1 appeal is heard. The Applicant does not have to satisfy the Court that the architectural evidence is critical to its case, nor even that it would be persuasive. Rather, in the circumstances of such an interlocutory application, it is sufficient that this evidence will likely be reasonably necessary to resolve the issues in dispute. It is the commissioner hearing the Class 1 appeal who will determine whether the architectural evidence is persuasive. The Applicant's motion is not a review of the Registrar's decision in disguise or a collateral attack of that decision, rather the motion represents a new and persuasive application to the Court, which has clearly been developed after a more careful deliberation of what evidence is necessary to properly respond to the Respondent Council's facts and contentions.
9. As has already been indicated, the Court is satisfied that the architectural design statement by Professor Tzannes, which appears in the Class 1 Application bundle of documents, does not and cannot fulfil the need for an analysis of, and targeted response to, the Respondent Council's contentions pertaining to architectural matters. Given my assessment of this new material and the question that I must resolve regarding the required expert evidence, I do not accept that the Applicant's motion gives rise to issue estoppel as suggested by the Respondent Council.
10. In deciding to allow the Applicant to call evidence from Professor Tzannes, I do not believe that the Respondent Council will be prejudiced, nor do I believe that the requirement for the just, quick and cheap resolution of the issues in dispute will be frustrated. The orders that I will make set the limited parameters within which the Professor will give evidence and will ensure that the risk of duplication of expert evidence does not materialise. Further, there is sufficient time (without needing to alter the hearing timetable) for the Respondent Council, should it wish, to arrange its own urban design/architectural expert evidence to address Professor Tzannes's evidence. In short, there are no practical issues which would preclude the making of the proposed orders.

Costs

1. Given the outcome of this motion and after considering all of the relevant circumstances, I have decided that it is not appropriate to make an order as to costs.

Orders

1. The Court: 1. Orders that Professor Alec Tzannes is permitted to give evidence in the proceedings in relation to contentions 1, 2 and 8 of the Statement of Facts and Contentions filed by Woollahra Municipal Council on 7 August 2017; 2. Notes that the expert evidence of Professor Alec Tzannes will be primarily directed at particular (d) of Contention 1, particular (a) of Contention 2, and particular (b) of Contention 8 of the Statement of Facts and Contentions filed by Woollahra Municipal Council on 7 August 2017; 3. Grants leave for Woollahra Municipal Council to, by way of Online Court, apply to adduce urban design or architectural expert evidence by 29 September 2017; 4. Directs the parties to, on 3 October 2017, submit to the Court, by way of Online Court, proposed consent orders (or competing orders) with respect to the consequential directions for Professor Alec Tzannes and the Respondent Council's corresponding expert (if any) to give their expert evidence; and 5. Directs the Applicant to, on 3 October 2017, serve and file an amended Schedule D form that includes a new column for the "area of expertise" of "architecture and/or urban design".

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: 16 April 2018