Murlan Consulting Pty Ltd v Ku-ring-gai Council and Anor

Murlan Consulting Pty Ltd v Ku-ring-gai Council and Anor - [2007] NSWLEC 704 - NSWLEC 2007 case summary — Zoe

[17]

Overall submissions of the Council 5 The Council argued that: (i) Grounds 1, 2, 3, 4 and 5 were not challenges which raised errors of law. The challenges are to findings of fact which are not open to a challenge of failing to take into account a relevant consideration. (ii) The procedural fairness grounds (8, 9, 10) are baseless. There is no obligation on the Court to disclose its deliberative processes in the course of selecting between competing evidence, see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, approved in SZBEL v Minister for Immigration (2006) 227 CLR 152 at [29] - [32]. (iii) Overall the appeal is an unfair analysis of the Commissioners' reasons, which must be considered in their entirety. 6 The Second Respondent made submissions on grounds 4 and 5 concerning the BGHF only. Grounds 1, 2 and 3 - Conservation plan 7 At the time of the sale of the property, a draft heritage conservation plan had been prepared by Rod Howard Heritage Conservation Pty Limited. That draft plan became exhibit L. 8 Subsequent to the sale of the land, the draft conservation plan was amended and became the final Conservation Management Plan. That final plan (exhibit F) had altered recommendations concerning the ability to redevelop land in and around the curtilage on Rippon Grange. It allowed more development within the curtilage than the draft plan. 9 The draft and final conservation plans were in evidence before the Commissioners and there was cross examination of the author Mr Lumby about them. Reference to the two plans and the cross-examination is set out in the judgment at [38] - [61] and the Commissioners' conclusions about his evidence are at [62]. They also consider evidence from the Heritage Office and draw their final conclusion at [68] as follows: Despite the reservations of some of the witnesses we are satisfied that the original heritage curtilage in the Conservation Plan 2001 should not be abandoned and should be considered along with later versions as it is based on the definition set out in the Heritage Office publication 'Heritage Curtilages' (1996) and focuses on the heritage significance of 'Rippon Grange' and its gardens. Within the original curtilage some building is permitted. The proposed 'Heritage Curtilage and Significant View Corridors Plan' in the Conservation Management Plan of July 2006 has no such provenance, and appears to have been generated by other factors than the importance of the place, [Note: Exhibit F, Annexure 15, p 136]. The 'Recommended Development Constraints' plan also appears to bear little relationship to the original 2001 heritage curtilage or the modified 2006 version.

[20]

Finding on grounds 1, 2 and 3 15 I intend to largely adopt the Council's submissions and do not therefore set these out separately. I agree with the submissions of the Council that there was no error of law demonstrated in the Commissioner's reasons in relation to grounds 1 and 2. Those grounds allege a failure to take into account a relevant consideration. On the assumption that the matters raised are mandatory relevant considerations (which is disputed) they were clearly considered in the judgment as part of the Commissioner's reasoning process as set out at par [38] - [70]. The Commissioners decided to accord the 2001 plan more weight than the later 2006 plan. Attribution of weight to particular evidence does not give rise to a question of law in the absence of a ground based on Wednesbury unreasonableness. Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 per Clarke JA (McHugh and Hope JJA concurring) at 333-334, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA (Samuels JA concurring, Kirby P agreeing on the result) at 155-156. 16 The judicial review ground of failing to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a mandatory consideration as required by statute, see Minister for Aboriginal Affairs v Peko-Wallsend (1985) 162 CLR 24, per Mason J at 39. The Applicant is seeking to attack a fact finding exercise by the Commissioners and there is no error of law disclosed on that basis in relation to this process; see St Helen's Landcare and Coastcare Group Inc v Break O'Day Council (2007) 151 LGERA 421 at [55] - [56], Azzopardi at 155-156. 17 Ground 3 (rejecting the draft conservation plan, without evidence, without notice to the parties and without sufficient reason) must also fail firstly because it is debatable that it raises any question of law as the Council submitted. If it does, the evidence before the Commissioners is identified in their judgment (see par 9) and the reasons for their conclusions are also outlined at [62] and [68]. The reasons provided are based on evidence and are clearly sufficient to demonstrate the basis for the Commissioners' findings. 18 There is no legal error raised by the particulars of that ground alleging that the Commissioners were obliged to advise the parties of their intention to make the finding of fact that they did. The judgment discloses the Commissioners' reasoning on the basis of the evidence before them. There is no further obligation to disclose to the parties their deliberative processes. As set out above in par 5(ii), the Council made a general submission that there is no obligation on a tribunal to disclose before final judgment its deliberative processes when selecting between competing evidence, relying on Alphaone which was adopted by the High Court in SZBEL at [29] - [32]. I adopt that submission also.

[21]

Blue Gum High Forest Ground 4 - failure to take into account BGHF on site as part of wider cluster 19 Ground 4 alleges that the Commissioners erred in law as failing to take into account a relevant consideration, that BGHF was part of a wider cluster. The initial issue raised by the evidence was whether there was critically endangered BGHF on the site, as defined under the TSC Act. The court appointed ecological expert Dr Smith found that there was evidence of endangered BGHF in a report provided to the parties about two weeks before the hearing. He had previously found that there was no BGHF as defined under the Environment Protection And Biodiversity Conservation Act 1999 (the EPBC Act) (Cth). The Commissioners accepted his opinion that there was such a community on the site, see [71] - [80] of the judgment. At [81] the Commissioners concluded that the development application was inadequate because: (a) it did not assess the impacts of the development on the BGHF adequately as required by s 5A of the EP&A Act (the seven part test); (b) did not address the effects of a key threatening process, the clearing of native vegetation BGHF at the site as required by Sch 3 of the TSC Act; (c) it did not address s 79B(3) of the EP&A Act. 20 The evidence of Dr Smith concerning the amount of BGHF likely to be lost if the development were approved was identified in the judgment at some length. The cross-examination of Dr Smith was considered at [82] - [86]. In the cross-examination it was suggested that in determining impact, the fact that the trees on the site were part of a wider cluster of BGHF beyond the site meant that the impact of the loss of BGHF trees on the site was less This approach, submitted by the Applicant, was rejected by the Commissioners who considered at [84] that the loss of the trees could not and should not be offset or lessened by the fact that there were other trees on neighbouring properties which were part of the same BGHF community. 21 The Applicant argued that the Commissioners rejected the correct approach in considering the effect of the subject development upon the endangered ecological community comprising not only the community on the subject land but also ancillary parts of that community as forming part of the cluster; [83]-[84]. Even more erroneously, the Commissioners constrained consideration of the community for the purposes of the assessment of the threshold question to the cadastral boundary of the subject site, an approach which is contrary to the proper interpretation of the question posed by s 78A of the EP&A Act, [84]. This error is compounded by rejecting the proper interpretation by reference to emotive concepts such as "death by a thousand cuts", [85].

[35]

Finding on Ground 5 30 It is clear from reading the judgment that [87] is obiter and does not form part of the ratio of the Commissioners' decision. The Commissioners had already concluded at [86] that development consent ought not be granted. It therefore has no binding legal effect on any future decision made by this Court. It is unlike the situation in Bonim Stanmore v Marrickville Council [2007] NSWLEC 286, where the finding found to be in error was "crucial and determinative" in the Commissioners' decision (nor is there an error of law as was found in that case). 31 Paragraph [87] reflects the Commissioners' views of the evidence and their findings about the BGHF on the site. It should not be criticised as an unnecessary and improper imposition of the Commissioners' personal views. It is responsive to the issues and the evidence before the Commissioners, as identified in the Second Respondent's written submissions at [23]-[25] and in the table at [26]. In making these findings I have adopted the submissions made by the Council and the Second Respondent and do not need to set these out separately in this judgment. 32 It also reflects basic ecological knowledge which those appearing before the Court as legal and expert representatives should be familiar with and contains no "surprises" on my reading. Rather, the matters are self-evident in the context of ecological issues concerning a critically endangered vegetation population. The matters referred to are matters which commissioners of this Court are familiar with. 33 In relation to the arguments raised by the Applicant for both grounds 4 and 5, reliance was placed by the Applicant's counsel on Brewarranna Pty Limited v Commissioner of Highways (No 2) (1973) 6 SASR 540 at 544 where the role of the judge in fact finding involving expert opinion was considered. Wells J stated: I have always taken the view, and shall continue to do so unless directed by a superior Court to do otherwise, that the creation of a special Division in a Court to deal with a particular class of case is not intended to turn the presiding judge into an independent expert in the very field in which testimony will be tendered to him that he will be called on to evaluate. It would never occur to a trial judge who, for example, had heard many cases in which expert medical knowledge had been tendered, to choose between the conflicting testimony of two medical witnesses by applying to it his own medical knowledge. That knowledge would, no doubt, have been of inestimable value in understanding the testimony; in suggesting questions; in comparing one set of opinions with another. But it would be quite contrary to principle, I apprehend, for the judge to bring a third set of opinions into the arena, and to supplement or condemn testimony properly adduced before him in reliance on his own theoretical grasp of principles and precepts of medicine. 34 That passage does not reflect the role of expert commissioners in this Court sitting in a merit appeal where they are expected to exercise their professional judgment in undertaking a merits assessment. This is a specialist court established by statute to consider a wide range of environmental legal and merit matters. The commissioners appointed under s 12 of the Court Act are required to have expertise in areas relevant to the Court. Ecological/environmental science expertise is one of those areas. Commissioners sit as the Court when exercising their functions in Class 1 merit appeal proceedings under s 33(1) of the Court Act. Under s 38(2) of the Court Act the rules of evidence are dispensed with and allow commissioners to inform themselves as they see fit, which includes drawing on their own experience. Under s 39(2) the commissioners "stand in the shoes" of the council as the administrative decision-maker when making their decisions. Such bodies have their own knowledge and expertise which they apply. The quotation relied on above by the Applicant, which is from an older decision of a single judge exercising different functions in another jurisdiction to those of this Court in Class 1 proceedings, is not relevant to the task commissioners undertake in Class 1 proceedings. 35 In this case one of the Commissioners has extensive academic and practical experience as an ecologist/environmental scientist. He is expected to apply that expertise in the cases that he hears, that being one of the reasons for his appointment as a commissioner under the Court Act. It is not appropriate to describe what the Commissioners did as simply applying their personal opinions in par [87], as the Applicant sought to characterise their evidence. They have done what is required of them, namely formed a view based on their own expertise and the expert material and opinion before them. They are not required to adopt that opinion. The matters the Applicant complained of are within the scope of the issues before the Commissioners and generally canvassed in the evidence heard by them. No error of law is disclosed in the judgment. The Applicant fails on this ground.

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