Solicitors:
Mark McDonald & Associates Lawyers Pty Ltd (First & Second Applicant)
Fishburn Watson O'Brien (First Respondent)
Pikes Lawyers (Second Respondent)
Marsdens Law Group (Third Respondent)
File Number(s): 2022/343322
[2]
JUDGMENT
The Applicants have commenced judicial review proceedings challenging a development consent granted by Kiama Municipal Council (the Council) the Third Respondent to the Second Respondent on 16 August 2022. The consent permits intensive plant agriculture (an orchard) and erection of netting structures on land in Jerrara Road, Jerrara next door to the Applicants' property also in Jerrara Road. The Second Respondent is taking an active role in the proceedings, the other two respondents having filed submitting appearances. The Applicants have filed a Notice of Motion dated 20 February 2023 seeking two orders, amendment of their summons and leave to rely on expert evidence.
The Second Respondent's land is zoned RU1 primary production, RU2 rural landscape and C2 environmental conservation.
The first order in the Notice of Motion is to enable reliance by the Applicants on an amended summons, which is not opposed. It is appropriate to make order one in the summons and I will do so. The amended summons provides a ground of appeal relevant to the second order sought in the Notice of Motion as follows:
Unreasonableness of the Decision because no site inspection
33. The Councillors in granting the Consent did not properly consider the heritage and view loss impact on Park Mount as no site view was conducted of Park Mount, by any Councillor forming part of the majority of Councillors (majority Councillors) who voted for the grant of the Consent, to assist them in fully understanding and assessing the view impacts of the Development.
34. All the Councillors were invited by the Applicants to conduct an inspection of Park Mount to enable a proper appreciation of the view impact on the Applicants.
35. No site inspection of Park Mount was conducted by the majority Councillors, and all the Councillors were on 20 June 2022 directed by the Director of Environmental Services, and by the Deputy Mayor not to carry out a site inspection before the Council's Assessment Report was available.
36. Nevertheless, one of the Councillors carried out a site inspection after the Council's Assessment Report was made available to her, and she voted against the grant of Consent.
37. Tenacity Consulting v Warringah Council [2004] NSWLEC 140 assumes a substantial level of detail and particularity in the assessment of views including, inter alia, identifying the types of views, their extent and the types of rooms and spatial positions from which they can be enjoyed. It was impossible for the Councillors who did not carry out a site inspection to have had a proper assessment of these matters through photographs alone, and through the limited number of photographs put before them in the Assessment Report (which, for example, contained no photograph taken from any internal room of Park Mount).
38. Without a site inspection, the majority Councillors could not have properly assessed the impact on Park Mount's views of Culwalla homestead and the surrounding landscape caused by the Development with the level of particularity that Tenacity assumes in the assessment of views.
39. An actual visual inspection and the observations available on such a visit were obviously and readily available material for the Decision.
40. The majority Councillors had a duty to inquire to the extent that once invited to inspect Park Mount and obtain this information by straightforward visual observation, it was unreasonable for them not to have taken that opportunity so as to enable them to consider that information in making the Decision.
41. All six of the Councillors who voted to approve the Development failed to carry out a site inspection of Park Mount.
42. As a result, and also by reason of the inadequate process as described above, the Councillors' decision to grant Consent was legally unreasonable.
The Notice of Motion seeks a second order that the Applicants be given leave to adduce an expert report of Ms Maze-Riley view loss expert pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 31.19 and is opposed.
UCPR r 31.19 is within Pt 31 Div 2. The purposes of the division are identified in r 31.17 and include ensuring that the court has control over the giving of expert evidence and restricting expert evidence to that which is reasonably required to resolve the proceedings inter alia.
UCPR r 31.19 states:
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 than in accordance with those directions.
(4) This rule does not apply to proceedings with respect to a professional negligence claim.
The development application was lodged on 2 February 2022 by Coordinated Logistics Pty Ltd the First Respondent on land owned by Enzo Developments Pty Ltd the Second Respondent for intensive agriculture (orchard) and netting of an area. The netting will be held up on steel poles of 4.5 m in height. The approximate size of the orchard is 19,500 sqm. A section 4.15 assessment report dated 24 June 2022 was prepared by a council officer. A report of the Director Environmental Services was prepared for the ordinary meeting of the Council on 16 August 2022. Development consent was granted for the development on 16 August 2022 at that ordinary meeting.
[3]
Applicants' Evidence
The affidavit of Mark McDonald solicitor dated 20 February 2023 was read. The Applicants tendered several exhibits referred to in the affidavit of Mr McDonald. Exhibit "MGM-1" contains the council assessment report and council officer's section 4.15 assessment report (Ex A) inter alia. In the section 4.15 assessment report dated 24 June 2022 view loss is considered in relation to the Applicants' property next door from the Second Respondent's land and includes photographs taken from the verandah and terrace of the Applicants' home, many of which appear to have been taken from the report of Ms Maze-Riley which was provided to the Council as part of an objection sent to the Council by the Applicants in relation to the DA. The four Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 (Tenacity) principles are expressly set out and response provided on each of these. The report of the Director Environmental Services was prepared for the ordinary meeting of Kiama Municipal Council on 16 August 2022. A section discusses view loss/heritage impacts to the Applicant's property and includes photographs taken from the Applicants' property or close by across the Second Respondent's land. It identifies that staff assessed the proposal in light of the Tenacity view sharing principles and states that it considered the proposal has minor view impacts as these were obtained over side boundaries, were distant and not unreasonably obstructed.
Exhibit "MGM-2" (Ex B) was the affidavit of Mr McElhone dated 6 February 2023. Mr McElhone attests that his property in Jerrara road has a house known at Park Mount located on it which is identified as a heritage item on Part 1 of Sch 5 of the Kiama Local Environment Plan 2011. The property enjoys views to Culwalla Homestead at Jamberoo and over the Jamberoo Valley and the Illawarra Escarpment. In his opinion the views are best appreciated from the rooms on the western side of Park Mount and the outside terrace and verandah of the house. Annexed to the affidavit is a letter of objection from Mr and Mrs McElhone to the Council in response to the proposed development. In correspondence with the Council, Mr McElhone invited the councillors to attend a site inspection on his property. An email from the Deputy Mayor of the Council explains it would be inappropriate for the Councillors to visit the site due to possible undue influence on staff assessing the proposal. She also states 'I will seek to ensure we visit the site when the DA has been assessed and is tabled in a future business paper.' In an email on 11 August 2022 another councillor stated she would complete a drive by of the site.
Ex C MGM 3 (Ex C) includes a report of Ms Maze-Riley dated 3 February 2023 the object of this Notice of Motion. The instructions given to Ms Maze-Riley are contained in a letter dated 20 January 2023 and state:
Could you kindly attend the Site for the purpose of preparing a succinct report to be filed in the proceedings addressing the following:
1. Having regard to the decision of the LEG in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 (Tenacity) and given that it assumes a substantial level of detail and particularity in the assessment of views, including, inter alia, identifying the types of views, their extent and the types of rooms and spatial positions from which they can be enjoyed was it possible, in your opinion, for the councillors to have a proper assessment of those matters through photographs alone, and through the limited number of photographs available and referred to in the Council Report (which for example, contained no photograph taken from any internal room of Park Mount)?
2. Was it possible for the councillors to properly assess the impact on views from Park Mount of the Culwalla homestead and the surrounding landscape caused by the development the subject of the DA (Development) with the level of particularity that Tenacity assumes in the assessment of views without a site inspection, in your opinion? Could you, as an expert, properly consider and apply Steps 1, 2 and 4 of Tenacity in respect of the views affected by the Development without an inspection of the Site?
3. What is the level of view impact resulting from the Development to the Site and Park Mount assessed in accordance with Step 3 of Tenacity and is it an impact that is so unreasonable in your experience that no competent consent authority acting reasonably would have found it acceptable, assuming the application of the principles in Tenacity?
Your report should also include a view loss analysis from the locations not actually seen or depicted in the photographs contained in the Council Report.
Ms Maze-Riley's report dated 24 February 2022 which supported the Applicant's objection to the DA was included in the exhibits.
[4]
Applicants' submissions
The Applicants submit that the expert report addresses three matters that are pleaded in the summons and is therefore reasonably required to resolve pleaded issues.
Firstly whether there was a duty to inquire as identified in Prasad v Minister for Immigration & Ethnic Affairs (1985) 65 ALR 549 (Prasad) by Wilcox J at 562-563 in relation to the actual observed view loss impact by the councillors taking a site inspection, which they failed to do. Ms Maze-Riley's evidence demonstrates what they would have seen had they attended a site inspection and considered view loss from within the Applicants' house.
The results of undertaking the enquiry are relevant. The deputy mayor promised that she would seek to ensure a site inspection yet none occurred. The Applicants' request for a site inspection was reasonable and necessary in order to get material to assess the DA, in accordance with Prasad.
Further some of the poles were already installed on the Second Respondent's land and had the councillors attended they would have seen the poles in place and been better able to appreciate their impact.
The expert report of Ms Maze-Riley gives direct evidence of what the councillors would have been informed of and drawn conclusions about if they had complied with their Prasad duty to inquire.
Secondly the application of the principles in Tenacity required that a site inspection be carried out by all six councillors. A technical matter arises due to the level of detail and particularity required under the Tenacity principles so that a site inspection was necessary for those principles to be applied.
The Council's assessment of view loss was inadequate as no photographs from inside the Applicants' house were before the councillors when they assessed the DA. [I note that the Applicants accepts that photographs from the verandah and garden of the Applicants' house were before the Council as is clear from the council officer's s 415 assessment report.]
Thirdly the decision to grant consent was legally unreasonable. Evidence not before the decision-maker in judicial review proceedings is admissible to demonstrate what a council acting reasonably ought to have done, e.g. Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 inter alia.
The direction under r 31.19 requires a lesser gateway, the evidence is required to address real issues in dispute and is tied to the pleading. The trial judge will determine the admissibility of particular paragraphs of the evidence.
In reply, the Respondent's submissions do not engage with the case pleaded in the amended summons which relies on failure of the duty to enquire per Prasad, to support a finding of Wednesbury unreasonableness. Pigeon holing the Applicant's case as a failure to take into account mandatory matters does not reflect the Applicants case. The court needs to be able to understand the impact of the failure to inspect the site appropriately from inside the Applicants' house.
In the absence of any other evidence the Court will be asked to accept that Ms Maze-Riley's conclusions are what the councillors would have to come to had they visited.
[5]
Respondent's submissions
None of the alleged aspects of the Wednesbury ground in the amended summons require resolution by the admission of Ms Maze-Riley's report. The Applicants must first establish that a 'duty to inquire' exists based on a failure to comply with the relevant statutory framework such as a Development Control Plan. No argument is made that the level of particularity identified in the Maze-Riley report is the level of enquiry that the statute expressly or impliedly requires. Even if a duty to inquire was established the failure of the enquiry would be evident from the Council officers' reports as to what was done or not done and ultimately considered, not from contentions in an expert's report.
The alleged failure of councillors to inspect the Applicants' home to enable views from inside to be considered the Applicants must establish that as identified in Walsh v Parramatta Council [2007] NSWLEC 255 at [60] that there was an express or implied duty to enquire arising from s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). No attempt is made to do this in establishing why expert evidence is needed.
The four Tenacity principles were expressly considered in the council officer's section 4.15 assessment report and illustrated with photographs taken from the objection report of Ms Maze-Riley. The additional report now sought to be relied on is an attempt to disagree impermissibly with the merits assessment of the Council.
The Applicants have not demonstrated why an expert report is needed where material on the matter of view loss relevant to the Applicants' property was before the Council. It is a matter for the Council whether material before it is sufficient to enable a decision to be made.
[6]
Consideration
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. In Shellharbour City Council v Minister for Planning [2011] NSWCA 195 the Court of Appeal stated:
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.
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.
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.
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.
Somewhat curiously given the arguments made now by the Applicants Ms Maze-Riley did not provide photographs from within the Applicants' house as part of her report dated 24 February 2022 used to support the Applicants' objection to the DA. She did provide photographs from the verandah and the terrace of the Applicants' house and these were referred to in the council officers' assessment reports in evidence.
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.
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.
I conclude the expert evidence of Ms Maze-Riley has not been established to be necessary for the resolution of the issues in this case. Order 2 of the Notice of Motion will not be made.
Costs generally follow the event in Class 4 proceedings including interlocutory matters such as this. No basis for making an order that costs be costs in the cause as stated in the Notice of Motion has been established. As the successful party the Second Respondent should have its costs paid by the Applicant.
[7]
Orders
The court orders:
1. Applicants have leave to rely on the amended summons annexed to the Notice of Motion dated 20 February 2023.
2. The Second Respondent's costs as agreed or assessed in relation to prayer 2 of the Notice of Motion dated 20 February 2023 must be paid by the Applicants.
[8]
Amendments
15 March 2023 - Clerical correction in accordance with the 'slip rule' 36.17 UCPR
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Decision last updated: 21 June 2024