The Applicant seeks compensation for the compulsory acquisition of part of its land by the Respondent pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act). The Applicant operates a childcare centre on its land. Its application to rely on expert architectural evidence pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to support its claim was refused by the Senior Deputy Registrar on 3 May 2024. The Applicant has filed a notice of motion dated 6 May 2024 seeking to set aside the decision of the Senior Deputy Registrar as provided by r 49.19 of the UCPR. Leave to rely on the architectural evidence of Mr Kwong is also sought. Consequential orders for the future conduct of the matter are also sought.
An affidavit of Ms Murray solicitor dated 16 April 2024 was read before the Senior Deputy Registrar which identified at par 12 that the Applicant had been advised by its town planning and valuation experts that evidence from an architectural expert is required to determine the precise impact of the public purpose on the Applicant's residue land and potential expansion of the childcare centre. A further affidavit of Ms Murray dated 10 May 2024 attaching a letter from a valuer Mr Hadley was read in support of the notice of motion dated 6 May 2024. Mr Hadley identifies why he considers he requires architectural evidence in order for him to undertake a valuation based on a 'rate per place' basis.
Proceedings were commenced on 26 April 2023. Orders permitting the filing and service of expert reports on bushfire, traffic, acoustics, quantity surveying, town planning and valuation reports inter alia were made in June, October and December 2023. Amended points of claim were filed on 16 November 2023. The transcript of the hearing before the Senior Deputy Registrar on 3 May 2024 was tendered by the Applicant as Ex A.
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), see also [52] (Basten JA). 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 making the case that setting aside the Senior Deputy Registrar's decision is in the interests of justice.
[3]
Applicant
The Applicant's valuer chose to adopt a method of valuation of 'rate per place' which necessitates the need for architectural evidence. The town planning evidence does not provide a sufficient basis to enable this to occur. It is in the interests of justice that this evidence be provided to enable the Applicant's valuer to undertake the valuation methodology he considers appropriate, relying on Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [52] (Kirk JA). The Applicant accepts that the valuation has also been prepared on a rate per sq metre basis as an alternative approach to valuation.
[4]
Respondent
The Respondent opposes the orders sought. First, the Applicant has not established that the Senior Deputy Registrar's decision will have a 'decisive impact' on its rights (nor does it finally determine those rights), Tomko (No 2) at [9]. The affidavit of Ms Murray dated 10 May 2024 affirms that town planning and valuation experts advise that architectural evidence is 'required' but does not identify which propositions in the amended points of claim require proof through architectural evidence. Mr Hadley's letter states that architectural evidence is necessary to clarify the 'potential lost yield' in the 'after' approach. While it may be accepted that the town planning and valuation experts cannot give evidence on building footprints, layouts and orientation, this fact does not establish of itself that such evidence is reasonably necessary to make out the Applicant's claim.
The Applicant's town planning evidence is that there is a net loss of 6,500m2 developable area as a consequence of the acquisition, town planning report of Vincent Hardy (prepared for the Applicant) filed 6 May 2024, p 43 (Hardy report) and that in the 'after' scenario, 'a 36% expansion of the existing CCC [child care centre] would allow a further 47 childcare spaces… without extensive interruption to the existing CCC operations', Hardy report p 45. This is said to be 'not a precise measure of future development', and that 'it is not possible to fully quantify the scale of any future CCC … without the preparation of architectural plans…', Hardy report p 45. Even accepting these provisos, it is not apparent why the Applicant's valuer is unable to proceed on the basis of the Applicant's town planning estimates.
Secondly, granting the Applicant leave to adduce architectural evidence would not be conducive to facilitating the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) (CPA). In support of its claim, the Applicant presently has leave to rely on several disciplines. Preparation of the evidence is well advanced, with individual reports filed in four of those disciplines and joint reports in three. The Applicant now seeks, some six months after the amended points of claim were filed, to add an additional discipline with consequential effects on the timetable for preparing the remaining evidence.
Absent a more fulsome explanation of precisely how the provision of architectural evidence is necessary to resolve the real issues in dispute, the relief sought by the Applicant cannot be said to facilitate the overriding purpose in s 56 CPA. The addition of this evidence at this late stage has the effect of increasing the time and cost of a matter which is already the subject of extensive expert evidence. In its most recent Class 3 Practice Note - Compensation Claims, the Court at par 39 encourages parties to consider whether there is a 'genuine need' to adduce expert evidence on any issue in dispute. This approach is consistent with the purposes in UCPR r 31.17(b)-(c).
[5]
Consideration
The Applicant accepts that it bears the onus of establishing that discretion should be exercised to overturn the Senior Deputy Registrar's determination. It argues that overturning the decision is in the interests of justice based on the advice of its valuer that the expert architectural report is necessary.
In this claim for compensation following the compulsory acquisition of land the Court will be considering a prudent fully informed hypothetical buyer and seller in the relevant market for land in order to determine market value as provided under the Just Terms Act. The extent to which those hypothetical parties are assumed to be informed including obtaining expert reports to assist them must be part of the consideration of the extent to which such reports ought be allowed to be adduced by the parties. A proliferation of expert reports in court proceedings beyond that which is likely to occur if at all in the assumed hypothetical market is an important consideration. Observations have been made in relation to particular evidence in cases such as Dibb v Transport for NSW [2023] NSWLEC 114 at [222], which considered that highly detailed hydrological expert evidence was highly unlikely to be obtained by a hypothetical purchaser. Such important considerations arise at this preliminary stage, mindful that the parties already have leave to rely on a large number of expert reports.
In the Class 3 Practice Note - Compensation Claims which commenced on 2 April 2024, the Court at par 39 encourages parties to consider whether there is a 'genuine need' to adduce expert evidence on any issue in dispute, noting that '[u]necessary expert evidence substantially increases the time and cost of Class 3 Compensation Claims'.
The overriding purpose in s 56 of the CPA identifies the just, quick and cheap resolution of matters. Parties seeking to rely on expert evidence must seek directions to do so under r 31.19 (1) in Pt 31 Div 2 of the UCPR. The purposes of Pt 31 Div 2 are identified in r 31.17(b)-(c) and include the restriction of expert evidence to that which is reasonably necessary in order to resolve the proceeding, and to avoid unnecessary costs associated with parties to proceedings retaining different experts. In Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 at [35] Giles JA in considering r 31.19 stated that evidence that is relevant and admissible is not a sufficient basis for it to be allowed.
In light of the Respondent's submissions above in [8] concerning the state of the town planning evidence, which does enable an assessment of lost floorspace, it is not apparent that the architectural evidence is reasonably necessary.
The progress of the proceeding to date is identified by the Respondent. Having been commenced in April 2023 the proceeding is well progressed including the preparation of reports in several expert disciplines already the subject of leave.
There has been no material change of circumstance between the Senior Deputy Registrar's decision on 3 May 2024 and the circumstances before the Court now. The substance of Mr Hadley's letter attached to Ms Murray's affidavit of 10 May 2024 was before the Senior Deputy Registrar when she made her determination. This case is unlike Bennett v Kuringai Council [2023] NSWLEC 6 (Bennett) at [15], [29] where there was a relevant material change in circumstance between the decision under review and the Court's determination that a registrar's decision ought be set aside on that occasion.
The Court 'does not lightly interfere with a considered decision of a registrar', Bennett at [27]. Weighing up all these matters, the Applicant has not established a sufficient reason to set aside the Senior Deputy Registrar's decision on 3 May 2024. To further draw on Tomko (No 2) at [8], the Applicant has not satisfied its onus of establishing that it is in the interests of justice for the Court to set aside the decision of the Senior Deputy Registrar. The Applicant has alleged no error of law, House v The King error, or material fresh evidence to support its application, as would normally be required.
The Applicant's notice of motion dated 6 May 2024 is dismissed.
[6]
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: 17 May 2024