Cases Cited: Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85
Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73
Attorney General v Kaddour & Turkmani [2001] NSWCCA 456
Attorney-General (SA) v Corporation of City of Adelaide (2013) 249 CLR 1; [2013] HCA 3
Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy (1992) 37 FCR 463
Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
Bennett v Northern Beaches Council [2022] NSWLEC 1720
Betfair Pty Ltd v Racing New South Wales and Anor (No 7) (2009) 181 FCR 66 at 75; [2009] FCA 1140
Caldera Environment Central Inc v Tweed Shire Council [1993] NSWLEC 102
Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102
Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210
Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83
Chandra v Webber (2010) 187 FCR 31; [2010] FCA 31
Churche v Australian Prudential Regulation Authority (2006) 153 FCR 373
Comcare v Lilley (2013) 216 FCR 214
Commonwealth v Northern Land Council (1993) 176 CLR 604; [1993] HCA 24
Commonwealth v Shenzhen Energy Transport Co Ltd (No 2) [2016] FCA 1607
Conway v Rimmer [1968] AC 910
David McElhone v Coordinated Logistics Pty Ltd [2023] NSWLEC 22
Deren v State of New South Wales (unreported, NSWSC, 28 April 1995, Levine J)
Donohue v Australian Fisheries Management Authority (2000) 60 ALD 137; [2000] FCA 901
DPP v Smith (1996) 86 A Crim R 308
Egan v Chadwick (1999) 46 NSWLR 563
Farley Environment Care Inc v HL Fry Properties Pty Ltd [2021] NSWLEC 77
Findex Group Ltd v iiNet Ltd [2017] NSWSC 853
Friends of King Edward Park Inc v Newcastle City Council (2012) 194 LGERA 226; [2012] NSWLEC 113
Gaudioso v Roads and Maritime Services (NSW) (No 2) [2020] NSWLEC 51
Gee v Stapleton & Ors (Land and Environment Court of NSW, Stein J, 19 September 1989, unreported)
Gibson v Perfect Square Design Pty Ltd [2023] NSWLEC 25
Grand Rozelle Pty Ltd v Transport for NSW (No 2) [2024] NSWLEC 83
Grand Rozelle Pty Ltd v Transport for NSW (No 3) [2024] NSWLEC 129
Haj-Ismail v Minister for Immigration and Ethnic Affairs (No 2) (1982) 64 FLR 112
Haughton v Minister for Planning and Macquarie Generation (2011) 185 LGERA 373; [2011] NSWLEC 217
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
Jam Land Pty Ltd v Minister for the Environment [2022] FCA 1058; (2022) 178 ALD 406
Jong Mi Hong v Blacktown City Council [2021] NSWLEC 38
Kamasee v Commonwealth (No 5) (2016) 52 VR 322
King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184
Ku-ring-gai Council v West (2017) 95 NSWLR 1; [2017] NSWCA 54
Lanyon Pty Ltd v The Commonwealth of Australia (1974) 129 CLR 650; [1974] HCA 11
Mackenzie v Head, Transport for Victoria [2021] VSCA 100
McElhone v Coordinated Logistics Pty Ltd [2023] NSWLEC 22
Mentink v Minister for Justice [2016] FCA 432
Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd & Anor [2021] NSWLEC 24
Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184
National Crime Authority v Gould (1989) 23 FCR 191; (1989) 90 ALR 489
National Tertiary Education Industry Union v Commonwealth (2001) 111 FCR 583
Nature Conservation Council of NSW Inc v Minister for Water, Property and Housing [2022] NSWLEC 69
New South Wales v Betfair Pty Ltd and Others (2009) 180 FCR 543; [2009] FCAFC 160
New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
R (on the application of Lynch) v General Dental Council [2003] EWHC 2987
R v Fandakis [2002] NSWCCA 5
R v Meissner (1994) 76 A Crim R 81
RMG Services Pty Ltd v South Australia [1993] SASC 4133
Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552
Rogers v Secretary of State for the Home Department [1973] AC 388
Rowan v Cornwall [1999] SASC 178
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43
Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348
South Australia v Tanner (1989) 166 CLR 161; [1989] HCA 3
Spencer v The Commonwealth (2012) 206 FCR 309; [2012] FCAFC 169
Sportsbet Pty Limited v State of New South Wales (No 3) (2009) 262 ALR 27 at 36; [2009] FCA 1283
State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60
The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34
Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185
Williams v Melbourne Corp (1933) 49 CLR 142; [1933] HCA 56
Work Health and Safety Act 2011 (NSW); AB (a pseudonym) v CD (a pseudonym) (2019) 364 ALR 202; [2019] HCA 6
Yoogen, Tait & Poompiriyapinte v R (1991) 57 A Crim R 226
Young v Quin (1985) 4 FCA 483
Zarro v Australian Securities Commission (1992) 36 FCR 40

Pearson v State of New South Wales [2025] NSWLEC 134 | Case summary | Zoe

NSWNSWLEC

Pearson v State of New South Wales

[2025] NSWLEC 134

Land and Environment Court (NSW)|2025-11-24|Before: Pritchard J

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-11-24

Before

Pritchard J

Catchwords

NOTICE OF MOTION – application to adduce expert evidence – r
31.19 of the Uniform Civil Procedure Rules 2005 (NSW) – application for
party to produce documents – ss 61 and 68 of the Civil Procedure Act 2005
(NSW) – application to excuse production – ss 130 and 131A of the

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Catchwords

NOTICE OF MOTION – application to adduce expert evidence – r31.19 of the Uniform Civil Procedure Rules 2005 (NSW) – application forparty to produce documents – ss 61 and 68 of the Civil Procedure Act 2005(NSW) – application to excuse production – ss 130 and 131A of theEvidence Act 1995 (NSW)

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Pearson v State of New South Wales [2025] NSWLEC 134

Hearing dates: 27 October 2025

Date of orders: 5 December 2025

Decision date: 24 November 2025

Jurisdiction: Class 4

Before: Pritchard J

Decision: See orders at [160] and [162].

Catchwords: NOTICE OF MOTION – application to adduce expert evidence – r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) – application for party to produce documents – ss 61 and 68 of the Civil Procedure Act 2005 (NSW) – application to excuse production – ss 130 and 131A of the Evidence Act 1995 (NSW)

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 61, 68
Environmental Planning and Assessment Act 1979 (NSW) ss 3.24, 3.29, 3.30
Evidence Act 1995 (NSW) ss 130, 131A
State Environmental Planning Policy (Housing) 2021 (NSW) ss 162, 163, sch 10
Uniform Civil Procedure Rules 2005 (NSW) rr 31.17 31.19

On 18 July 2025, the first respondent produced 24 documents (14 of which were redacted) (f****irst t****ranche), and the first NTP was otherwise stood over to 1 August 2025. The applicant’s representatives were advised that the first tranche was partial production in response to Categories 14, 15 and 16 in the first NTP.
By letter dated 22 July 2025, the applicant sought confirmation from the first respondent as to whether production in response to Categories 14, 15 and 16 in the first NTP was ongoing and, if so, when production would be completed. The correspondence also noted that certain documents in the first tranche were described as “extracts”, and requested production of the entirety of each email chain.
By letter dated 31 July 2025, the first respondent confirmed that all documents responsive to Categories 14 and 15 had been produced, and that production for Category 16 remained ongoing. The first respondent also informally produced a further 34 documents (13 of which were redacted) responsive to Categories 1, 2, 3, 4, 10, 11, 12, 13 and 16 in the first NTP (which were produced to Court on 1 August 2025) (s****econd t****ranche).
The first respondent otherwise foreshadowed a PII claim over a further tranche of documents, and the first NTP was further stood over to 15 August 2025.
On 14 August 2025, the first respondent indicated that it required a further three weeks to bring a claim of PII in respect of documents caught by the first NTP. By letter dated 14 August 2025, the first respondent also advised that production had been completed for Categories 1, 5, 6, 7, 14, 15 and 16 in the first NTP and that the remaining documents responsive to Categories 2, 3, 4, 8, 9, 10, 11, 12 and 13 in the first NTP were subject to possible claims for PII. Somewhat inconsistently, the letter went on to state that production had been completed for Categories 10 and 11 of the first NTP.
On 25 August 2025, the applicant issued a second notice to produce to the first respondent (the second NTP) in the following terms:

In relation to the motion for expert evidence, the applicant read the affidavit of Brian James Whittaker, partner, Webb Henderson, solicitor for the applicant, dated 11 July 2025 (the first Whittaker affidavit), and tendered exhibit BJW-1 thereto, read the affidavit of Brian James Whittaker dated 14 July 2025 (the second Whittaker affidavit), and read the affidavit of Brian James Whittaker dated 22 September 2025 (the fourth Whittaker affidavit), and tendered exhibit BJW-9 thereto.
In the first Whittaker affidavit, Mr Whittaker deposes that:
He expects that an “appropriately qualified and experienced town planner” will be able to give evidence concerning the methodology to be adopted in the identification of “points” from which a measurement is to be taken from a Town Centre or station, and the “point” “corresponding to affected properties, in seeking to ascertain the application of the LMR SEPP”, and the methodology to be adopted in ascertaining a route that may be safely walked by a pedestrian.
He expects that an “appropriately qualified and experienced surveyor” will be able to give evidence concerning the methodology to be adopted in the calculation of “walking distance” for “the purpose of determining the LMR SEPP” and the method to be adopted in ascertaining a route that may be safely walked by a pedestrian.
The applicant has concerns about the impact of the Housing SEPP for the proper assessment of taxes and duties on the land she owns in and around the areas “purportedly and potentially impacted by the Housing SEPP”.
He is of the view that an “appropriately qualified and experienced valuer” will be able to give evidence concerning the impact of the LMR SEPP on the value of the applicant’s properties, the implications for a valuation flowing from any uncertainty as to whether the LMR SEPP operates with respect to a particular parcel of land, and in relation to “the land tax implications flowing from the question whether the LMR SEPP applies to a particular property and / or any uncertainty as to the application of the LMR SEPP”.
Exhibit BJW-1 to the first Whittaker affidavit includes an undated screenshot of the “Town Centres Map” webpage which states that the Housing SEPP has adopted digital mapping for the transport oriented development site maps, the maps having been supplied by DPHI. Mr Whittaker deposes that he navigated to the Spit Junction (Military Road) Town Centre in the planning portal and took the following screenshot on 11 July 2025 (extracted in the second Whittaker affidavit):
Exhibit BJW-1 to the first Whittaker affidavit includes an (undated) extract from the DPHI website in relation to the LMR policy. The extract says that the LMR policy is part of SEPP (Housing). Stage 1 of the LMR policy, called “Permitting dual occupancies”, commenced on 1 July 2024 and permitted dual occupancies and semi-detached homes in the R2 low-density residential zone across all of NSW. Stage 2 of the LMR policy, called “Encouraging low and mid-rise housing”, commenced on 28 February 2025 and introduced new planning controls to encourage more dual occupancies, terraces, townhouses, apartments and shop top housing to be built in low and mid-rise housing areas located across Greater Sydney, Central Coast, Lower Hunter and Newcastle, and Illawarra-Shoalhaven. Low and mid-rise areas are residential zones within 800 metres walking distance from nominated Town Centres and nominated train/light rail stations.
In the fourth Whittaker affidavit, Mr Whittaker deposes that the following expert evidence would assist the Court’s adjudication of the grounds of review advanced by the applicant:
evidence from a traffic engineer, including concerning “how a traffic engineer may be involved in seeking to assess whether a route can be ‘safely walked by a pedestrian’” for the purpose of ascertaining the “walking distance” as defined in the Housing SEPP “for the purposes of determining the application of the LMR SEPP”; and
evidence from an independent expert with planning policy expertise to explain “the range of methodologies or approaches to planning policy” used to develop a policy such as the Housing SEPP and LMR SEPP and “the effect … those different methodologies or approaches may have on the ambiguity of the implementation of planning policy and issues such as development feasibility”.

It was likewise uncontroversial that both the common law and s 130 of the Evidence Act require two broad stages of analysis to determine a public interest immunity claim: first, the assessment of the character of the information or document (as Cabinet documents or as relating to a matter of state); and secondly, a weighing or balancing exercise to assess the public interest on whether disclosure would prejudice the proper functioning of the government. [19]
The first respondent submitted, and it was uncontroversial, that where Cabinet documents are concerned, different kinds of documents might attract a greater or lesser degree of protection (that is, the public interest in disclosure might more readily or less readily outweigh public interest in nondisclosure). In this regard, there was submitted to be a spectrum or continuum, the authorities recognising that:
“Cabinet documents” as a class includes documents submitted to and considered by Cabinet and “precursor” documents, including documents that were not considered by Cabinet or even submitted to Cabinet, but were prepared for that purpose. [20]
Documents recording decisions or deliberations of Cabinet have a "preeminent claim to confidentiality" [21] , and, the claim for immunity will be paramount "in all but quite exceptional circumstances." [22] Cabinet documents in the form of documents recording the matters put to Cabinet for discussion (such as minutes) have been held to be in the same position as records of the deliberations or decisions of Cabinet.
There is a broad equivalence between documents recording deliberations and decisions, and documents which reveal those deliberations. The public interest in preserving secrecy will ordinarily be given considerable weight, and disclosure ought not be ordered unless the judge is satisfied that the materials are crucial for the proper determination of the proceedings. [23]
Other documents including “papers brought into existence for the purpose of preparing a submission to Cabinet” and “documents and communications passing between a Minister and the head of his department relating to Cabinet proceedings and material prepared for Cabinet” are recognised classes prima facie entitled to protection on the grounds of public interest immunity. [24]
The extent to which the documents disclose or enable reliable inferences to be drawn about the content of Cabinet deliberations will ordinarily be given considerable weight in the balancing exercise. [25]
It was uncontroversial that pursuant to s 130(3) of the Evidence Act, a court "may inform itself in any way it thinks fit" when considering a claim for PII. In Attorney General v Kaddour & Turkmani [26] , the Court of Appeal (Sully J, Spigelman CJ and Adams J agreeing) noted at [20] that the terms of s 130(3) meant that the trial judge in that matter:

The expert evidence upon which the applicant seeks to rely was submitted to be relevant to three grounds of review in the amended summons: vitiating uncertainty (Ground 1) and legal unreasonableness (Grounds 2A and 2B). The applicant submitted the expert evidence that she seeks to adduce will “demonstrate the purported operation” of the LMR SEPP “in practice”. Such evidence would “assist the Court in determining the important questions of validity raised by these proceedings”.
Surveyor: This evidence is proposed to highlight the uncertainties attending the measurement of “walking distance” which was submitted to be “a central aspect of the context as to the way in which Ch 6 [of the Housing SEPP] is to operate”. For example, surveyors can measure both the horizontal distance (“as the crow flies”) or the slope distance which may produce two very different results with respect to the same route.
Traffic engineer: This evidence is proposed also to address the uncertainties attending the measurement of “walking distance” and, in particular, the notion of “safely walked”.
Town p****lanner: This evidence is proposed to go to the feasibility of planning measures being formulated on a cadastral boundary approach, that is, producing a statutory map. This was submitted to be relevant to the applicant’s argument as to legal unreasonableness, including her argument as to proportionality.
Valuer: This evidence is proposed to address the impact on the valuation of heritage items located in low and mid rise housing area as defined by s 163 of the Housing SEPP as amended by the LMR SEPP (set out above at [45]) (LMR Areas) which are carved out from the operation of Ch 6 of the Housing SEPP, but which are otherwise surrounded by land ripe for development. The applicant submitted that a heritage item cannot be developed under the LMR SEPP, but will otherwise be impacted by such development, “a capricious outworking of the design of the LMR SEPP” submitted to point to legal unreasonableness.
Given the early stage at which this direction was sought (by motion dated 11 July 2025) in accordance with r 31.19 of the UCPR which requires a party intending to adduce expert evidence at trial to promptly seek directions from the court and noting that in the third Whittaker affidavit, the first respondent conceded that the application was made by the applicant “promptly”, the applicant submitted that it was premature for the Court to rule out the probative nature of such evidence. The expert evidence she seeks to adduce falls within accepted categories of exceptions to adducing expert evidence in Class 4 proceedings. As Class 4 proceedings, and having regard to the operation of r 1.5 and Schedule 1 to the UCPR, r 31.19 applies in relation to expert evidence. This is reflected in the Practice Note for Class 4 proceedings which refers to r 31.19 and requires parties to identify: (i) the disciplines of proposed experts; (ii) the issues to which the proposed evidence will relate; and (iii) “the reasons why the proposed expert evidence is reasonably required to resolve the proceedings having regard to the just, quick and cheap requirement”.
The applicant also referred to r 31.17(b) of the UCPR which, amongst other things, provides that a main purpose of Division 2 of Part 31 of the UCPR is to “restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings”. [34] Indeed, the applicant submitted, in proceedings in which the validity of delegated legislation is challenged, it may in certain cases be appropriate for the Court to examine evidence of:
the operation of the delegated legislation “in the local circumstances to which it is intended to apply”, along with considering the “true nature and purpose” of the empowering provision, thus permitting an examination of the “true character of the by-law” and whether it “could not reasonably have been adopted as a means of attaining the ends of the power”; in short, whether it is a “real exercise of the power”: Williams v Melbourne Corp [35] at 154-155 (Dixon J). Evidence of the context in which delegated legislation operated was before the Court in South Australia v Tanner [36] in which the Court (Wilson, Dawson, Toohey and Gaudron JJ) held at 165 that such evidence permitted consideration as to whether the impugned regulation was “reasonably capable of being considered a measure ‘to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone’”; and
the impact of the delegated legislation on parties affected by it, so as to determine whether it produces absurd results: Austral Fisheries Pty Ltd v Minister for Primary Industries & Energy [37] (Austral Fisheries) at [477] (O'Loughlin J).
The applicant referred to a number of cases in which expert evidence has been admitted in Class 4 judicial review proceedings: for example, Friends of King Edward Park Inc v Newcastle City Council at [90] (Biscoe J); Arnold v Minister Administering the Water Management Act 2000 (No 6) [38] (Arnold No 6) at [120], [124] (Biscoe J); Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [39] (Muswellbrook) at [42], [44] (Preston CJ); and Farley at [22], [40]-[41] (Pain J). The Court in Arnold No 6 at [120], [124] (Biscoe J) and Muswellbrook at [42], [44] (Preston CJ) have permitted expert evidence where the ground of legal unreasonableness was advanced. The applicant submitted that expert evidence has been permitted in instances where the evidence sheds light on material that could have been available to the decision-maker, but which was unreasonably not sought out. [40] Expert evidence has also been permitted addressing technical terms or technical concepts underpinning the area of regulation or administration: for example, Caldera Environment Centra**l Inc v Tweed Shire Council [41] (Talbot J) (technical terms relating to impacts of development on endangered flora and fauna); Haughton v Minister for Planning and Macquarie Generation [42] at [196] (Craig J) (“ecologically sustainable development”); Muswellbrook at [25], [41] (“final landforms”, “natural micro-relief”) (Preston CJ); Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd & Anor [43] at [16]-[20] (Pain J) (“carbon budget approach”, “emissions reduction trajectories”, “production gap”, “scope 1, 2 and 3 greenhouse gas (GHG) emissions”, regional “accounting” of emissions, “hothouse earth”, “forest fire index”, “hydrological cycle”, “Earth System Feedbacks”, “Tipping Points”, lag between release of GHG emissions and related environmental impacts); R (on the application of Lynch) v General Dental Council [44] at [24] (Collins J) (technical terms relating to practice of orthodontics); Australian Retailers at [43] (Weinberg J) (expert economic opinion on terms “efficient” and “competitive”); Arnold No 6 at [124] (Biscoe J) (technical terms relating to management of groundwater); Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [45] (Annexure B, [5]) (Bond J) (technical concepts relating to economic theory, modelling and valuation).
Within the “reasonably required” framework of r 31.17 and having regard to the grounds of review, the applicant seeks to adduce expert evidence directed to:
assisting the Court with some of the technical aspects of the purported operation of Ch 6 of the Housing SEPP and issues with its operation in planning approvals, proposed to be given by a town planner, a surveyor and a traffic engineer;
demonstrating, in practical terms, the uncertainty occasioned by the drafting of the LMR SEPP by reference to the evidence of a town planner, a surveyor and a traffic engineer; and
addressing the implications flowing from the uncertain designation of land falling within the LMR SEPP, being land that may fall on the periphery of an LMR “Sub- Area”, or the periphery of the “inner” / “outer” delineation of that “Sub- Area”. The applicant anticipated that evidence of this kind would be adduced by a valuer (as to the impact on property valuations, including, for example in relation to the potential impact on the value of “heritage items” that fall within an LMR “Sub- Area”, but are carved out from the regime), as well as by a town planner and surveyor.
The applicant submitted that the fact that the scope of the expert evidence concerning the planning context extends to a town planner, surveyor and traffic engineer was consonant with such consultants ordinarily being involved in development applications of the nature and scale contemplated by the LMR SEPP, including in relation to “walking distance”. Consistent with this feature of the planning regime, such experts may be required to give evidence in Class 1 proceedings in this Court. Further, a single development application may require input from a planner, surveyor and traffic engineer. Likewise, the identification of a “point” on land “identified as a “Town Centre’” (or, in the case of a station, a “point” on a “public entrance” or “a platform”) will need to be construed in the context of usage in a planning context. The evidence sought to be adduced would inform the Court as to the operation of the LMR SEPP in the “local circumstances”, as contemplated in Williams v Melbourne Corp, including by addressing the technical aspects of the planning context in which the delegated legislation is to operate.
Further, the applicant submitted, the evidence of the town planner was proposed to extend to planning methodologies. It is an aspect of the applicant’s case that the LMR SEPP as made, and the Minister’s recommendation to the Governor to make the LMR SEPP, were legally unreasonable exercises of power (Ground 2A of the amended summons). As to the LMR SEPP, delegated legislation may be found to be legally unreasonable where the measure adopted is not reasonably proportionate to achieve the statutory objective, such that the delegated legislation does not represent a real exercise of the power conferred on Parliament’s delegate. In circumstances where the express objective of the policy is to “encourage the development of low and mid rise housing” in certain “well-located areas” and to have different planning requirements apply in those “areas” (s 162 of the Housing SEPP), an instrument that fails to definitively identify those “areas” is not reasonably proportionate to that objective. The LMR SEPP fails to identify, by way of a legislative map, the boundaries of the LMR Area and thereby fails to provide certainty to landowners, potential developers and the community at large.
This was submitted by the applicant to be inconsistent with the objective of encouraging development, and doing so in prescribed areas. The Court would be assisted by expert evidence in relation to the feasibility of a planning methodology that utilises cadastral maps, and the history of this methodology in planning regimes, in assessing the question of proportionality. The focus of such a challenge remains on the question of whether the legal limits of the power to make the delegated legislation, as conferred by the EPA Act, have been exceeded. This ground of unreasonableness, the applicant submitted, is closely related to the ground of vitiating uncertainty (Ground 1), and the proposed evidence is relevant in this regard also.
In order to understand Ground 1 as to vitiating uncertainty and Grounds 2A and 2B as to legal unreasonableness, the applicant submitted that:
The Court will be required to consider how a town planner is to address Ch 6 of the Housing SEPP in the context of a development application for a property on the periphery of an LMR “Sub- Area” (or on the periphery of an “inner”/ “outer” area) and instruct and obtain the assistance of a surveyor and/or traffic engineer. The Court will require evidence of the manner in which a surveyor and/or traffic engineer will provide a report as to the “walking distance”. The measurement of the route cannot appropriately be dealt with by way of submission alone.
The Court will require and be assisted by expert evidence concerning the implications for planning matters in respect of both landowners and prospective developers (intended to be adduced from each of the town planner, surveyor and traffic engineer), and the impact on the valuation of certain properties within the purported LMR Area, including heritage items, as set out at [68] above.
It was submitted to be relevant to Grounds 1, Grounds 2A and 2B of the amended summons for the Court to have before it evidence of the operation of the LMR SEPP “in the local circumstances to which it is intended to apply”, including for the purpose of assessing its “true character” and determining whether it constitutes a valid exercise of the empowering provisions, including s 3.29 of the EPA Act.
In relation to uncertainty, the applicant submitted that this case concerns the failure of the LMR SEPP, which amended the Housing SEPP by inserting Ch 6, to definitively mark out the boundaries of the land across the State that is the subject of significant planning reforms. It was submitted to be a feature of the scheme that the uncertainty engendered by the drafting of the delegated legislation was most pronounced in respect of land on the “margins”. The applicant referred to the first respondent’s acceptance that uncertainty attends the drafting of the LMR SEPP, having conceded the following matters:
There may be disagreement in relation to land on the margins as to whether the land is caught by the definitions in s 163 of the Housing SEPP, and this may have implications for development applications.
Expert evidence of differing specialities may be required in a contested development application involving the LMR SEPP.
Different experts may employ different methodologies and reach different conclusions in marginal cases.
In relation to the absence of a statutory map that designates the land in NSW that is the subject of Ch 6, the applicant submitted that the respondent had adopted a series of “nebulous definitions”, and “definitions within-definitions”, and that one will not find marked out on a map the land ostensibly captured by the definitions in s 163 of Ch 6, being the “low and mid rise housing area” which in each case in relation to an area around a designated Town Centre or station, comprises the “low and mid rise housing inner area”, together with the “low and mid rise housing outer area”. As a result, there will be a live question in many cases as to whether land falls within or outside these arising for landowners, developers and council. [46]
To highlight the uncertainty further, the applicant submitted, the “low and mid rise housing inner area” is defined by reference to land that is land within a 400-metre walking distance of various locations set out in the definition of “low and mid rise housing inner area” in s 163 of the Housing SEPP, as set out at [45] above.
The “low and mid rise housing outer area” is defined in a similar way, but by reference to land that is between 400 to 800 metres walking distance of those same locations (that is, between the internal and external boundary lines). The applicant submitted that this demonstrates that the degree of uncertainty is not trivial. For some of the light rail stations, for example, where there is “no public entrance”, the “platform” is to serve as the relevant measuring point without designation from which point on the platform any measurement is to be taken. When these issues are multiped across the 171 LMR “Sub-Areas” and for each “Sub-Area”, the “magnitude of the concern” was submitted to come “sharply into focus”. There were nominally 342 “boundary lines” (external and internal), involving an “untold number of properties”, where this uncertainty was submitted to arise.
Noting the first respondent’s “concessions” as to uncertainty, the applicant submitted that an appropriate alternative to adducing evidence from a surveyor and a traffic engineer may be for the parties to be provided with a short period to attempt to agree facts pursuant to s 191 of the Evidence Act 1995 addressing this agreed “baseline” uncertainty. The applicant would seek to have the “baseline” uncertainty aspect of the applicant’s motion for expert evidence stood over, and in the event that the parties were unable to reach agreement, the applicant would ask the Court to rule on the papers on this remaining aspect of the motion.

The first respondent did not accept that the exception for expert evidence to explain technical terms in judicial review proceedings was engaged in respect of the expert evidence sought to be adduced by the applicant in these proceedings.
First, s 163 of the Housing SEPP, together with the definition of “walking distance” in Schedule 10, does not contain technical terms. Phrases such as “the shortest distance between 2 points”, “safely walked” and “as far as reasonably practicable” contain words that can all be found in the Macquarie Dictionary and construed in accordance with their ordinary meaning. This was confirmed in Bennett v Northern Beaches Council [47] (at [48]-[49] (Gray C)), where the Commissioner noted that the words in the definition of “walking distance” were “unambiguous and must be given their ordinary meaning”. When the expression “walking distance” is construed in accordance with its ordinary meaning, the Court does not require the assistance of expert evidence.
Secondly, to the extent that phrases such as “safely walked” and “as far as reasonably practicable” involve matters of judgment and degree, they are concepts with which this Court and other cognate jurisdictions routinely grapple; for example, in the context of negligence and a range of statutory regimes: see, for example, the Work Health and Safety Act 2011 (NSW); AB (a pseudonym) v CD (a pseudonym) [48] at [15] (Nettle J). This Court was submitted to be familiar with the process by which to determine the meaning and application of such phrases, and does not need expert evidence to explain how that should occur. Relatedly, the UCPR and the Court’s Practice Note in relation to Class 4 proceedings emphasise that expert evidence must be confined to matters on which specialised knowledge is necessary for the resolution of factual questions, and that the use of expert evidence should be justified on the basis of whether it is reasonably required to resolve the proceedings. Here, no such factual issues arise. In Chandra v Webber at [40], Bromberg J reiterated that the “touchstone” for admissibility of evidence not before the decision-maker in judicial review proceedings is usually relevance.
Thirdly, the applicant seeks to adduce expert evidence not to elucidate the meaning of any technical terms, but rather to demonstrate uncertainty as to how “walking distance” might be calculated. Annexure A to the applicant’s motion for expert evidence demonstrates that the applicant seeks to adduce expert evidence to show that there may be different methodologies that could be used to calculate walking distance, not to establish that there is an accepted technical meaning amongst experts of a particular speciality as to how it should be calculated: see the first Whittaker affidavit at [23] above and the fourth Whittaker affidavit at [25] above. The exception for expert evidence of “technical terms” was not engaged on the present facts.
Fourthly, whilst the first respondent accepted that expert evidence regarding the integers of the definition of “walking distance” might be relied upon in a contested application before the Court concerning refusal of a development application which relies upon the LMR SEPP, that was not this application which does not involve a particular proposal, but rather review of the validity of the LMR SEPP more generally.
In short, the first respondent submitted there are no technical terms which arise for consideration by the Court in this application which concerns words and phrases in the LMR SEPP and Housing SEPP which the Court has previously construed in accordance with accepted principles of statutory construction.

The first respondent referred to the applicant’s claim that her proposed expert evidence demonstrates the “operation of the delegated legislation in the local circumstances to which it is intended to apply”.
The first respondent submitted that the “local circumstances” described in Williams v Melbourne Corp concerned the manner in which cattle could pass through the streets in the City of Melbourne, and the effects of a particular by-law upon such passage. There was no apparent reliance upon expert evidence to demonstrate the means by which the cattle could pass. The first respondent submitted that Dixon J’s observations in Williams provide no basis for leave to be granted to adduce expert evidence in the current proceedings.
First, Dixon J’s observations do not provide an established exception to the ordinary position that expert evidence is not admissible in judicial review proceedings. While lay evidence as to the particular circumstances in which an environmental instrument is likely to operate could potentially be of assistance to the Court, expert evidence must fall within an exception to the ordinary position as identified in the case law set out in paragraph [49] above.
Secondly, in order to establish that the definitions are uncertain, the Court is required to engage in a process of statutory interpretation. [49] Uncertainty will only invalidate because “one can derive from the text, context and purpose of the statute an intention by parliament that the power be confined in a way which requires a high level of certainty (or precision)”. [50] Whether Parliament intended that the power to make the LMR SEPP be confined in a way which requires a higher level of certainty or precision than what was achieved is a matter for the Court to determine on the construction of the EPA Act itself, and not by reference to the type of expert evidence that might be adduced in a disagreement over a particular development application: see, for example, Jam Land at [33]-[63] (Lee J).

In relation to the applicant’s contention that expert evidence is needed to demonstrate “the impact of the delegated legislation on parties affected by it so as to determine whether it produces absurd or arbitrary results”, relying upon the decision of Austral Fisheries, the first respondent submitted that the applicant provided limited explanation as to the likely content of this evidence. In the first Whittaker affidavit, Mr Whittaker deposes to the utility of expert valuation evidence in the proceedings. In fourth Whittaker affidavit, Mr Whittaker deposes to the utility of expert planning evidence. The first respondent submitted that this evidence does not satisfy the description of expert evidence adduced to demonstrate an absurd or arbitrary outcome.
First, in Austral Fisheries, expert evidence was adduced to demonstrate that a formula used to calculate the allocation of units in a fishery was flawed as it involved a statistical fallacy that produced an irrational result (at 470). This was submitted to be far removed from the present circumstances. Here, the arbitrary outcome is alleged to be the uncertainty caused by the definition of “walking distance” for properties on the margins of relevant areas affected by the LMR SEPP that may result in increased transaction costs due to the need to retain experts to advise on the issue. It is not unusual, the first respondent submitted, for environmental planning instruments to contain criteria that have a measure of uncertainty when applied to specific circumstances, requiring analysis by experts of differing specialties. There are mechanisms for the resolution of such uncertainty, and it is not apparent why expert evidence would need to be adduced to explain that such uncertainty exists. Furthermore, the applicant did not explain how expert evidence would establish that the impact of the LMR SEPP on the value of a particular parcel of land would be absurd or arbitrary. In the absence of such explanation, the Court would not grant leave for such evidence to be adduced.
Secondly, in relation to grounds alleging legal unreasonableness, the Court should be mindful of ensuring that the proposed experts will not give evidence in relation to the merits of the decision the subject of review: see, for example, Arnold *(*No 6) at [195] (Biscoe J). As currently framed, the applicant’s expert evidence would appear to traverse into the territory of merits review. The first respondent also referred to Gibson v Perfect Square Design Pty Ltd, where the Court considered whether leave should be granted to allow an applicant to adduce evidence of a visual impact expert’s views on whether a decision-maker correctly applied the “planning principles” set out in Tenacity Consulting v Warringah Council [51] in relation to view sharing. Such matters were said to be relevant to the alleged unreasonableness of the decision-maker’s decision. Citing the decision of Pain J in David McElhone v Coordinated Logistics Pty Ltd [52] , the Court concluded that the expert’s opinion on such a matter was not material to the Court’s own conclusion as to the reasonableness of the decision, and the views of the expert embarked on a merits-based review of the decision-maker’s decision (see [50]-[51], [61]).

In relation to the applicant’s submission that expert evidence will allow the parties to advance their respective arguments “fully” because expert evidence will assist in demonstrating how the LMR SEPP will operate “in practice”, the first respondent submitted that evidence of the practical effect of a legislative instrument is generally not admissible in an application for judicial review.
The first respondent referred to the applicant’s reliance upon South Australia v Tanner where the High Court was required to determine whether the impugned regulation fell within the scope of the principal legislation which permitted the Governor to make regulations “for regulating, controlling or prohibiting the use of any land within a watershed or within a watershed zone so as to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone” (at 163). Having regard to the specific nature of the regulation-making power, the Court was required to “form a view as to the existence and dimensions of the actual or threatened pollution or deterioration of the water in the Watershed”, which were “matters of fact upon which the Court must be instructed by appropriate evidence” (at 165). In this case, the first respondent submitted, the relevant power is set out in s 3.29 of the EPA Act which simply requires the environmental planning instrument to be “for the purpose of environmental planning by the State”, submitted to be a broad criterion unconstrained by any terms of a technical nature. No expert evidence is necessary to determine whether the LMR SEPP meets this criterion.
In relation to the applicant’s reliance upon South Australia v Tanner to support the proposition that “delegated legislation may be found to be legally unreasonable where the measure adopted is “not reasonably proportionate to achieve the statutory objective”, the first respondent submitted that the relevant inquiry is whether there is a rational relationship (or sufficient connection) between the purpose for which the power is conferred by the enabling legislation and the instrument made in furtherance of that purpose. [53] The Courts have referred to a challenge to the validity of a legislative instrument having to meet a “much sterner onus” than that applicable where an administrative decision is under review. [54] The applicant argues that a failure of the LMR SEPP – not to identify – but to “definitively identify” the areas within which the policy operates demonstrates that there is no reasonable proportionality between the objective of encouraging housing and the instrument by which that objective is sought to be achieved. The applicant appeared to be arguing that the only way the LMR SEPP could have identified areas for additional housing would be to have a bright line, on a map, delineating which land fell within the instrument. However, the purpose of using walking distance as a criterion was to ensure that “more people can live within walking distance of the places they need to go” which means that “there will be less need to drive and less sitting in congestion”.
The first respondent submitted that the applicant’s argument was not that a concept of “walking distance” lacks rational connection with the objective of providing new housing near transport and other facilities, but that there will be transaction costs associated in determining whether the test of “walking distance” is met. This argument, the first respondent submitted, strays squarely into the territory of seeking merits review, and the expert evidence she proposes to prepare will not assist the Court to determine whether the reasonable proportionality test has been met. The first respondent submitted that it can be accepted that whether particular land is within an LMR Area is a matter of significance; and likewise that in some cases (although not all cases) the considerations outlined by the applicant may apply and may need to be considered in considering the merits of a development application that relies on provisions of the LMR SEPP. However, the applicant did not suggest that these matters were incapable of being determined by the consent authority (or the Court) in an appropriate case, nor were they matters that fall for determination in these proceedings.

For the following reasons, I have decided to dismiss the applicant’s motion for expert evidence.
As submitted by the first respondent, the applicant does not contend that a jurisdictional pre-condition to the making of the decision of the Minister for Planning and Public Spaces under or for the purposes of ss 3.24(11), 3.29 and/or 3.30 of the EPA Act to recommend the Governor make the LMR SEPP is unable to be established such as to put in issue the existence of a jurisdictional fact. Nor does she assert a failure on the part of the decision-maker to undertake a particular inquiry that ought reasonably to have been undertaken. Rather, the expert evidence upon which the applicant seeks to rely is submitted to be relevant to three grounds of review in the amended summons: vitiating uncertainty (Ground 1) and legal unreasonableness (Grounds 2A and 2B). Whilst it has been observed to be a “deeply entrenched” principle of our law that the courts may rule delegated legislation to be invalid (Pearce and Argument, Delegated Legislation in Australia, Lexis Nexis 2023 (Pearce and Argument) at [12.2]), including on grounds of uncertainty and unreasonableness/proportionality, it does not follow that the courts have permitted, as a matter of course, expert evidence to be adduced to establish those grounds of review. In the circumstances here, I have determined that the expert evidence sought to be adduced traverses into the territory of a merits-based assessment of the Minister’s decision and the LMR SEPP, and I decline to grant leave for the evidence to be adduced.
The evidence of a town planner was proposed to go to the feasibility of planning measures being formulated on a cadastral boundary approach, that is, producing a statutory map. Mr Whittaker deposed that an appropriately qualified and experienced town planner would be able to give evidence concerning “the methodology, or range of methodologies, to be adopted in the identification of ‘points’ from which a measurement is to be taken from a Town Centre or station, and the ‘point’ corresponding to affected properties, in seeking to ascertain the application of the LMR SEPP”. The town planner might also give evidence in relation to “the role of a surveyor in performing such a measurement”. This was identified as an issue arising in relation to each of Grounds 1, 2A and 2B, but submitted to be relevant to the applicant’s argument as to legal unreasonableness, including her argument as to proportionality.
The evidence of a surveyor was proposed to highlight the uncertainties attending the measurement of “walking distance” which was submitted to be “a central aspect of the context as to the way in which Ch 6 [of the Housing SEPP] is to operate”. For example, the applicant submitted, surveyors can measure both the horizontal distance (“as the crow flies”) or the slope distance which may produce two very different results with respect to the same route. Mr Whittaker also deposed that an appropriately qualified and experienced surveyor would be able to give evidence concerning the impact, if any, of the surface materials of the route that may be safely walked by a pedestrian, the width of the path, the gradient of the route and/or the need to accommodate those who have a physical impairment in ascertaining the “walking distance”. This was submitted to be relevant to the Court’s determination of each of Grounds 1, 2A and 2B.
The evidence of a traffic engineer/planner was proposed also to address the uncertainties attending the measurement of “walking distance” and, in particular, the assessment of whether a route can be “safely walked” by a pedestrian. The applicant referred to the involvement of traffic engineers in the preparation of a traffic impact assessment for a development application of the scale engaging the potential application of the LMR SEPP, as addressed in the fourth Whittaker affidavit. In that affidavit, Mr Whittaker said that an appropriately qualified traffic engineer/planner may be able to give evidence concerning, inter alia, “how a traffic engineer may be involved in seeking to assess whether a route can be ‘safely walked by a pedestrian’ using, as far as reasonably practicable public footpaths and pedestrian crossings (for the purposes of attempting to ascertain the ‘walking distance’ as defined in the Housing SEPP, for the purposes of determining the application of the LMR SEPP) within a low and mid-rise housing area, including the key considerations a traffic engineer would have regard to”. This evidence was also submitted to be relevant to the Court’s consideration of each of Grounds 1, 2A and 2B.
The evidence of a valuer was proposed to address the impact on the valuation of heritage items located in LMR Areas which are carved out from the operation of Ch 6 of the Housing SEPP, but which are otherwise surrounded by land submitted to be “ripe for development”. Under the LMR SEPP, a heritage item cannot be developed but will otherwise be impacted by such development, submitted to be “a capricious outworking of the design of the LMR SEPP” pointing to legal unreasonableness. Mr Whittaker deposed to the applicant’s concerns in relation to “the impact of the Housing SEPP for the proper assessment of taxes and duties on land she owns in and around the areas purportedly and potentially affected by the Housing SEPP”, and to his view that that “an appropriately qualified and experienced valuer would be able to give evidence concerning the land tax implications flowing from the question whether the LMR SEPP applies to a particular property and/or any uncertainty as to the application of the LMR SEPP”.
I am not satisfied that any of the cases in which expert evidence explaining technical terms or technical concepts has been permitted in judicial review proceedings (see above at [71]) are sufficiently proximate to the facts of these proceedings, or to the grounds of review advanced in these proceedings in challenging the validity of the LMR SEPP:
First, I do not consider the expression “walking distance” in s 163 of the Housing SEPP, defined in Schedule 10 as “walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings”, to be a technical term which would be construed otherwise than in accordance with its ordinary meaning. As Commissioner Gray observed in Bennett v Northern Beaches Council (at [48]-[49]), the words in the definition of “walking distance” in Schedule 10 are “unambiguous and must be given their ordinary meaning”:

As Pain J observed in Nature Conservation Council at [94]-[95], judicial review cases where evidence has been allowed in relation to technical terms are “relatively few”. In this case, the technical nature of the material is not such that it may not be readily understood by the Court without expert evidence. To the extent that the applicant seeks to adduce expert evidence not to elucidate the meaning of a defined term, but to demonstrate uncertainty as to methodologies for calculating “walking distance” (Annexure A to the applicant’s motion for expert evidence stating that the applicant seeks to adduce expert in relation to “[t]he methodology, or range of methodologies to be adopted in ascertaining a route to be safely walked by a pedestrian, and the extent to which it is reasonably practicable to use public footpaths and pedestrian crossings”), in light of the clear definition of “walking distance” in Schedule 10, evidence to show that there may be different methodologies that could be used and experts may have different views as to how to calculate walking distance is not relevant to any or all of Grounds 1, 2A or 2B; cf first Whittaker affidavit at [23(1)]-[23(2)] above; fourth Whittaker affidavit at [26(1)] above.
Whilst evidence of a traffic engineer/planner in relation to aspects of the definition of “walking distance” such as “may be safely walked” might be relevant in a contested application before the Court concerning the refusal of a development application which relies upon the LMR SEPP, that is no what the applicant seeks to achieve here. Her challenge is not to the merits of the refusal of a particular development application, but to the validity of the LMR SEPP more generally. This is not a case where the technical nature of the material before the decision-maker requiring review is such that it may not be fully understood by the Court without expert evidence.
Nor did the applicant explain how expert valuation evidence would be capable of demonstrating that the impact of the LMR SEPP on the value of a particular parcel of land would be absurd or arbitrary. Nor did she explain how expert evidence could establish that the effect upon land value of any uncertainty relating to the application of the LMR SEPP would be absurd or arbitrary.
Insofar the applicant seeks to adduce expert evidence to demonstrate the “operation of the delegated legislation in the local circumstances to which it is intended to apply”, in reliance upon the reasons of Dixon J in Williams v Melbourne Corp at 155, I do not consider that his Honour’s reasons would be taken as far as suggested by the applicant. There his Honour said:

His Honour was not suggesting that expert evidence is admissible in judicial review proceedings challenging the validity of delegated legislation to permit examination of circumstances pertaining to the locality in which the delegated legislation is intended to operate, in effect at large.
Rather, his Honour was concerned with the characterisation of the by-law in question, and the determination of the true nature and purpose of the power being exercised and the existence of sufficient connection between the subject of the power and that of the by-law. In such a case, as his Honour observed, the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power. His Honour was not suggesting that evidence in relation to “the local circumstances” extend to a contest of experts in relation to the manner in which cattle could pass through the streets in the City of Melbourne.
As to the applicant’s contention that expert evidence is needed to demonstrate “the impact of the delegated legislation on parties affected by it, so as to determine whether it produces absurd or arbitrary results”, relying upon the decision of O'Loughlin J in Austral Fisheries, in that case, expert evidence was adduced to demonstrate that a formula used to calculate the allocation of units in a fishery was flawed as it involved a statistical fallacy that produced an irrational result (at 470). This was, as submitted by the first respondent, far removed from the present circumstances where the arbitrary outcome is alleged to be the uncertainty caused by the definition of “walking distance” for properties on the margins of areas affected by the LMR SEPP that may result in increased transaction costs due to the need to retain experts to advise.
Again, as the first respondent submitted, it is not unusual for environmental planning instruments to contain criteria that have a measure of uncertainty when applied to specific circumstances requiring analysis by experts of differing areas of specialisation. It was not demonstrated how the Court would be assisted here by expert opinion in relation to the existence of such uncertainty. Nor was it demonstrated how the existence of this type of uncertainty is such as to produce an “absurd or arbitrary result” to be established by expert opinion in judicial review proceedings.
Nor in relation to the applicant’s submission that expert evidence will allow the parties to advance their respective arguments “fully” because expert evidence will assist in demonstrating how the LMR SEPP will operate “in practice”, have I been persuaded how the evidence of the practical effect of the legislative instrument sought to be challenged is relevant to the grounds of judicial review sought to be advanced by the applicant here.
In relation to the applicant’s reliance upon South Australia v Tanner where the High Court was required to determine whether the impugned regulation fell within the scope of the principal legislation which permitted the Governor to make regulations “for regulating, controlling or prohibiting the use of any land within a watershed or within a watershed zone so as to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone” (at 163), in that case having regard to the specific nature of the regulation-making power, the Court was required to “form a view as to the existence and dimensions of the actual or threatened pollution or deterioration of the water in the Watershed” which were “matters of fact upon which the Court must be instructed by appropriate evidence” (at 165). In this case, the relevant power is in s 3.29 of the EPA Act which requires the environmental planning instrument to be “for the purpose of environmental planning by the State”. I find, as submitted by the first respondent, that that is a broad criterion unconstrained by any terms of a technical nature. No expert evidence is necessary to determine whether the LMR SEPP meets this criterion.
Insofar as the applicant also relies upon South Australia v Tanner to support the proposition that “delegated legislation may be found to be legally unreasonable where the measure adopted is “not reasonably proportionate to achieve the statutory objective”, the test was expressed by the High Court in South Australia v Tanner as follows (at 167-8):

The relevant inquiry is whether there is a rational relationship (or sufficient connection) between the purpose for which the power is conferred by the enabling legislation and the instrument made in furtherance of that purpose. [55] In Donohue v Australian Fisheries Management Authority [56] Heerey J referred to a challenge to the validity of a legislative instrument having to meet a “much sterner onus” than that applicable where an administrative decision is under review. Here, the applicant’s complaint is of a failure of the LMR SEPP to “definitively identify” the areas within which the policy operates such as to demonstrate that there is no reasonable proportionality between the objective of encouraging housing and the instrument by which that objective is sought to be achieved. As submitted by the first respondent, the applicant appeared to be arguing that the only way the LMR SEPP could have identified areas for additional housing would be to have a bright line, on a legislative map, delineating the land within the boundaries of the LMR area. Although ultimately to be addressed at trial, it appears that the applicant’s argument, as presently cast, is not that a concept of “walking distance” lacks rational connection with the objective of providing new housing near transport and other facilities, but strays into a complaint concerning the merits of the Minister’s decision to recommend to the Governor the making of the LMR SEPP, and the merits of a decision of a consent authority in relation to a development application that relies on provisions of the LMR SEPP. Contrary to the submission of the applicant, I do not consider it to be relevant to the grounds of challenge to the validity of the LMR SEPP that experts of the disciplines upon whose evidence she seeks to rely in these Class 4 proceedings may be required to give evidence in Class 1 proceedings in this Court. It is not to the point that opinions based on specialised knowledge may be required in determining a contested development application involving the SEPP.
Further, whilst by no means decisive of the applicant’s motion to adduce evidence from four experts, the disposition of the motion also raises case management considerations, and whether such an approach would conduce to the efficient conduct of the proceedings as mandated in s 56 of the CPA. I consider that it would not, notwithstanding the early stage of the proceedings at which the motion was brought (11 July 2025) and there being no suggestion that the application was not made “promptly”. I have concluded that a substantial contest of experts would be a waste of time and money given the unlikelihood that it would be of assistance: Shellharbour at [29] (Hodgson JA). As to the applicant’s suggestion that various matters proposed to be the subject of expert evidence might be dealt with by way of agreed facts, the first respondent did not engage with that suggestion, and I say nothing further about it.

The first respondent submitted that the documents over which it claims PII are draft Cabinet documents, contain the actual or proposed contents of the subject matter of Cabinet deliberations, or were prepared to inform Cabinet deliberations, and hence concern a “matter of state” for the purposes of s 130 of the Evidence Act, and that their disclosure would “prejudice the proper functioning of the government of the … State”: s 130(4)(f).
There was submitted to be a recognised public interest in maintaining the secrecy or confidentiality of the documents and the information contained in the documents set out in the motion. Ms Gibson, Deputy Secretary of DPHI, had reviewed the documents and gave evidence that each document (or the information contained in a document) over which a claim of public interest immunity was made was provided to Cabinet, or was a draft version of a document that was prepared or provided to Cabinet. The documents were prepared for the purposes of Cabinet deliberation or record information intended for Cabinet, or information about the contents of Cabinet submissions or decisions.
The documents that had been redacted to preserve claims of public interest immunity, if disclosed, would reveal the contents of Cabinet decisions or the proposed or actual contents of a Cabinet submission, and would disclose information intended for Cabinet, or information about the contents of Cabinet submissions or decisions. Further, the first respondent submitted, the balancing exercise that the Court must undertake under s 130 of the Evidence Act strongly favours the preservation of secrecy of the documents and information over which public interest immunity is claimed. The documents over which public interest immunity is claimed is a Cabinet document, or records information put before or prepared for the purpose of informing Cabinet deliberation. Each of the documents concern a policy initiative of the NSW Government to develop low to mid-rise housing. Exceptional circumstances - which the High Court doubted could ever be present in civil proceedings - would be required before these documents are disclosed. Moreover, the first respondent submitted, the documents over which public interest immunity is claimed are not crucial to the proper determination of the applicant's civil claim so as to establish the extraordinary circumstances necessary to warrant disclosure: s 130(5)(a) and (c) of the Evidence Act.

The applicant submitted that the Court’s inquiry pursuant to s 130 of the Evidence Act substantially mirrors the common law as to PII [57] and the familiar inquiry set out by the Courts. [58] Uncontroversially, this was submitted to involve considering first, whether the information or document of which production has been sought bears the character of relating to “a matter of State”; and second, the balancing between disclosure and prejudice to confidentiality in the administration of law, and the proper functioning of Government. [59] As to the first stage of the inquiry, whether a document relates to a “matter of state” is to be informed by the non-exhaustive considerations in s 130(4). The second stage of the inquiry requires the Court to consider the “scope, content and importance of” the public interest in admitting (or permitting disclosure of) the information or document, and of the public interest in preserving secrecy or confidentiality in relation to the information or document. [60]
The applicant submitted that in making a class claim, the first respondent bears a “heavy burden of proof” [61] , and accepted that documents recording the actual deliberations of Cabinet have a “pre-eminent claim to confidentiality”. [62] Other documents prepared to inform Cabinet or to develop policy at the level of DPHI fall into a different category and may engage a different rationale for protection. Generalised assertions that drafts are captured by the immunity will be insufficient for the State to discharge its burden. [63]
Insofar as the first respondent’s PII motion is said to relate to documents that are draft attachments to Cabinet submissions and other documents created to inform Cabinet’s deliberations, the applicant noted that the policy of the law that has seen PII extended to drafts [64] and the preparation for the framing of Government policy [65] was once framed in terms of preventing criticism of the inner working of Government, and the encouraging of “frank and candid” communications between public servants and Ministers by reason of, in effect, an immunity from embarrassment or contemporaneous scrutiny. [66] The applicant submitted that that justification has since been doubted, [67] referring to its justification by the Court in NLC ensuring that decision-making, in the sense of the iterative process by which different ideas are explored, is “uninhibited” [68] , and Chief Justice Spigelman in Egan v Chadwick [69] observing that protecting against the disclosure of documents recording actual Cabinet deliberations upholds the doctrine of collective responsibility and that, in contrast, documents “prepared outside of Cabinet for submission to Cabinet … may or may not” engage the same considerations.
The applicant referred to the Gibson affidavit dealing with the asserted harm to the public interest in “generalised terms”. First, in relation to (unspecified) documents the disclosure of which would “undermine[ ] the principle of collective responsibility”; and secondly, in relation to (unspecified) documents comprising material proposed to be put before Cabinet by the Minister, disclosure of which was said would “significantly inhibit the ability of Cabinet to be properly informed and make decisions. It was unclear whether all of the documents the subject of the PII motion fell into one or other of these categories.
Where a power that is not to be exercised lightly, if there are (i) doubts that a document falls within the class asserted (ii) concerns about the adequacy of the evidence or (iii) doubts as to the extent to which the documents would assist the applicant’s case, the Court is more likely to consider it necessary to inspect the documents and make an assessment for itself. [70] These factors, the applicant submitted, tend in favour of inspection in the present case.

In relation to the first respondent’s PII claim on a “class” basis in respect of the 44 documents identified in the MG-1 Index and exhibited in confidential exhibit MG-1, the applicant drew attention to the Gibson affidavit in which Ms Gibson deposed that the “final list of suitable town centres” was “ultimately annexed to a Cabinet submission, which was before the Strategy Committee of Cabinet in November 2024”. The applicant noted that it was curious that the Cabinet minute or submission that was before the Strategy Committee on 4 November 2024, together with its final annexures, was not the subject of the PII motion, and had not been identified as responsive to the notices to produce “even if it would inevitably have been the subject of a PII claim”.
Notwithstanding that these were “class” claims, the applicant noted that the extracts from 8 of the 44 documents had been previously produced in response to the first NTP. These are the documents at rows 1-8 of the MG-1 Index, being spreadsheets produced in “filtered form” to refer only to the Mosman Town Centre. It was unclear why some of this material could be disclosed if the documents were truly the subject of a PII class claim. While the applicant accepted that it is not possible to waive PII, [71] if information concerning the Mosman Town Centre does not attract a PII claim, the Court would more readily accept an inference that other parts of the same documents are equally not captured by PII and bear forensically on the conduct of the present matter. The very purpose of a class claim is to identify a category of documents which, even if they contain “no sensitive material” [72] and “whatever the contents”, [73] should be protected “because of their very nature”.
Further, the applicant submitted, while the documents at rows 1-8 in the MG-1 Index are described as having “unknown” dates, the dates in the electronic file names can at least be taken as an approximation of when the document was created. When this is considered, most of these documents were created well in advance of the submission to the Strategy Committee of Cabinet on 4 November 2024, as the below list demonstrates:
16 May 2024: “Document 2” (Row 2 of MG-1 concerning “Stations and Centres – hazards and issues exclusions tracking”), and “Document 6” (Row 6 of MG-1 concerning “Stations and Centres – hazards and issues exclusions tracking”);
23 May 2024: “Document 1” (Row 1 of MG-1 concerning “All Town Centres”);
29 May 2024: “Document 3” (Row 3 of MG-1 concerning “Stations and Centres – Hazards Combined”), and “Document 4” (Row 4 of MG-1 concerning “Stations and Centres – Hazards Criteria PMF coverage”);
24 June 2024: “Document 5” (Row 5 of MG-1 concerning “Recommended Precincts stats”);
11 October 2024: “Document 8” (Row 8 of MG-1 concerning “LMR town centres mapping”); and
14 October 2024: “Document 7” (Row 7 of MG-1 concerning “LMR town centres mapping”).
It was not clear which of these documents constituted a draft attachment to what became the final Cabinet submission, and which was otherwise a document in a different form prepared for the purpose of informing the deliberations of the Cabinet Committee. Further, the Gibson affidavit provided no explanation as to why material created several months before the Cabinet submission can fall within the scope of its class claim.
The applicant noted that the Court has previously considered the effluxion of time more generally to be relevant to the balancing of the competing public interests. In relation to stages of a project, subject matter that had “passed into history” or which had been “superseded by later developments” has been held to be less likely to prejudice the current functioning of the State of New South Wales. [74] Here, the less proximate draft papers are to the final Cabinet submission, prima facie the less bearing they have on the actual deliberations of Cabinet and the more remote is any prospect of disclosing those Cabinet discussions or inhibiting Cabinet decision-making. Additionally, it could not be accepted that the relevant decision-making process the subject of challenge in these proceedings is “ongoing”. Given that the LMR SEPP has been made by the Governor so as to amend the Housing SEPP, the process of making the delegated legislation is “finished” [75] and “complete”. [76]
As to the balance of the documents listed in the MG-1 Index in relation to which there is a PII claim over the entirety of the document, it assists, the applicant submitted, to consider these in chronological order (taking the date in the electronic title as the approximate date on which the document was created):
16 April 2024: “240416_Initial List of Identified Stations and Centres for Council Engagement” (being Row 25 in the MG-1 Index). In relation to this document, the applicant noted that DPHI released its “Refinement Paper” about a week later, on 29 April 2024;
10 May 2024: “240510_AS_Centre and Station Refinement” (Row 26 in the MG-1 Index), and “240510_AS_Centre and Station Refinement- PF2AJB3N” (Row 27 of the MG-1 Index);
23 May 2024: “240523_All Town Centre E1 E2 MU1 SP5 Identification” (Row 28 in the MG-1 Index);
30 May 2024: “240530_HR_LMR Recommended Locations” (Row 29 in the MG-1 Index), and “240530_HR_Locations” (Row 30 in the MG-1 Index);
7 June 2024 (each of the below being said to relate to Category 2 of the first NTP, and it also being noted that the DPHI issued its “Station and Centre Precinct – Selection Method” paper and compiled precinct statistics on 7 June 2024):

26 June 2024: “240626_LMR Recommended Precincts for councils (Row 22 in the MG-1 Index), and “240626_LMR Recommended Precincts for Minister” (Row 23 in the MG-1 Index);
17 September 2024: “240917_LMR locations_Trip times and MO responses_v.01” (Row 41 in the MG-1 Index);
29 September 2024: “240929_LMR locations with comments_v0.2” (Row 42 in the MG-1 Index);
11 October 2024: “241011_LMR centres and stations_v0.9” (Row 44 in the MG-1 Index), “241011_LMR centres and stations_v0.10” (Row 24 in the MG-1 Index), “241011_CR_LMR centres - final v.1_JA responses” (Row 43 in the MG-1 Index);
11 February 2025: “250211_LMR centres and stations_final v.1 (MO version)” (Row 20 in the MG-1 Index);
13 February 2025: “250213_LMR centres and stations_v1.0_Final” (Row 19 in the MG-1 Index); and
Undated: “LMR centres and stations for engagement with councils” (Row 21 in the MG-1 Index), and GIS Files (Row 9 in the MG-1 Index, the applicant querying whether the GIS Files are addressed in the Gibson affidavit).
The applicant made a number of observations in relation to the above list. First, each of these documents is said to relate to Category 2 of the first NTP (which primarily relates to Ground 2B of the amended summons), save for the GIS files which are said to relate to Categories 10 and 11 of the first NTP (which categories primarily relate to Grounds 2A and 2B of the amended summons). There was a paucity of material that had been disclosed about the decision-making process, and limited information disclosed in the Gibson affidavit, especially concerning the making, publication and amendment of the Town Centres Map which is central to the operation of the LMR SEPP and which gives the regime its content. As such, the applicant could “only surmise that the documents will further inform and bear upon the challenges that are brought on the ground of legal unreasonableness, which ultimately manifests in the uncertain operation of ch 6 of the Housing SEPP”.
Secondly, many of the documents the subject of class claims which are described by the first respondent in the MG-1 Index as a “Draft Attachment to a Cabinet Submission” were created in April to September 2024, some months before the submission went to the Strategy Committee of Cabinet on 4 November 2024.
Thirdly, the documents referred to at subparagraphs [139(7)] and [139(8)] above did not appear to be documents that were intended to be attachments to a Cabinet submission, given that they refer to “MO Responses” (taken to mean responses from the Minister’s Office), and “comments” more generally, and thus appear to be communications between DPHI and the office of the Minister for Planning and Public Spaces. Likewise, the document at [139(1)] appears to have been prepared for the purpose of engaging with Councils, not briefing Cabinet. The document referred to at [139(6)], being “240626_LMR Recommended Precincts for Minister”, also appears to relate to the briefing of the Minister, not a submission prepared for Cabinet. The applicant submitted that these documents may also be able to be the subject of a claim for PII on that basis, but as such an objection is neither particularised nor supported by the evidence, the applicant was unable to address any claim put on that basis. The applicant submitted that the Court should infer that in circumstances where the objection had not been taken, the first respondent formed the view that such an objection was not open.
Fourthly, two of the documents appear to post-date the meeting of the Strategy Committee of Cabinet held on 4 November 2024: sub-paragraphs [139(10)] and [139(11)] above. If this is the case, the class claim based on the documents each comprising a “Draft Attachment to a Cabinet Submission” cannot be sustained as only one Cabinet Strategy Committee meeting is expressly addressed in the Gibson affidavit. It thus could not be said that these documents, created in February 2025, were “prepared for the express purpose of informing a Cabinet Committee deliberation”. The Gibson affidavit did not support the contention that the documents in issue were the subject of “ongoing” decision-making processes before Cabinet.

The applicant also referred to the PII claims advanced by the first respondent in respect of the 7 documents listed in the MG-2 Index. Those documents are described as documents “disclosing the contents of submissions or decisions of Cabinet”. The applicant submitted that an assessment of the documents in exhibit MG-2 reveals that only one of the seven documents in part post-dated the Cabinet Committee meeting on 4 November 2024, and thus only one document is capable of revealing the actual content of those Cabinet deliberations.
Row 6 of MG-2 Index (18 July 2024): The document in Row 6 in the MG-2 Index (“Sensitive - NSW Cabinet - LMR Spatial Mapping”) is dated 18 July 2024. The first respondent describes this document in the following terms: “Email correspondence discussing inclusion of town centres for LMR Policy.” The PII claim is made in respect of the entire contents of this email correspondence. The applicant submitted that the first respondent must assert that the entirety of the document reveals “the contents of Cabinet discussions, or the proposed or actual contents of Cabinet discussions”. Given that this document pre-dates the November meeting, it must reveal proposed Cabinet discussions. Further, the first respondent has indicated that this email correspondence is responsive to Categories 3, 4, 12 and 13 in the first NTP. In broad terms, Categories 3 and 4 call for briefing documents associated with the Minister’s decision to approve the Town Centres Map and the records of that decision. Categories 12 and 13 call for briefing documents associated with the Minister’s decision to recommend the making of the LMR SEPP to the Governor of NSW and the records of that decision. Prima facie, the applicant submitted, these documents are “centrally relevant” to her challenges to that decision (Grounds 2A and 2B of the amended summons).
Row 7 of MG-2 Index (20 August 2024): The date of the document in Row 7 of the MG-2 Index (“240820_JA_LMR Centres selection explanatory note_v0.3.pdf”) is said to be “unknown”, but the applicant noted that the electronic file name suggests a date of 20 August 2024. The first respondent described this document as “Internal explanatory memorandum re LMR Policy”. The PII claim is made in respect of the entire contents of this document. Again, the applicant submitted, the first respondent must assert that the entirety of the document reveals “the contents of Cabinet discussions, or the proposed or actual contents of Cabinet discussions”. Given that this document pre-dates the November meeting, it must reveal proposed Cabinet discussions. The first respondent had indicated that this “explanatory note” is responsive to Category 2 in the first NTP which calls for “documents recording the consideration, discussion or determination of the ‘Spit Junction town centre (Military Road and Spit Road)’ as one of the final 171 low and mid-rise housing areas as published by NSW Government's Planning website at https://www.planning.nsw.gov.au/policy-and-legislation/housing/low-and-mid-rise-housing-policy/site-selection and included as a ‘town centre’ in the Town Centres Map in the Relevant Period”. This material was submitted to relate to Ground 2B of the amended summons.
Row 4 of MG-2 Index (22 August 2024): The document in Row 4 in the MG-2 Index (“240823_JA_Response to MO comments on centres v0.6”) is dated 22 August 2024. The PII claim is made in respect of the entire contents of this document. Again, the applicant submitted, the first respondent must assert that the entirety of the document reveals “the contents of Cabinet discussions, or the proposed … contents of Cabinet discussions”. Given that this document pre-dates the November meeting, it must reveal proposed Cabinet discussions. The first respondent has indicated that this document is responsive to Category 2 of the first NTP. This material was submitted primarily to relate to Ground 2B of the amended summons.
Row 2 of MG-2 Index (16 September 2024): The document in Row 2 in the MG-2 Index (“240916_JA_Response to MO queries on particular centres”) is dated 16 September 2024. The PII claim is made in respect of the part of this document which has been produced “in a partially redacted form”. Again, the applicant submitted, the first respondent must assert that the relevant part(s) of the document reveal(s) “the contents of Cabinet discussions, or the proposed or actual contents of Cabinet discussions”. Given that this document pre-dates the November meeting, it must reveal proposed Cabinet discussions. The applicant also noted that the first respondent had indicated that this document is responsive to Category 14 in the first NTP. That category concerns documents “evidencing or recording meetings held between the responsible Minister (or staff in the responsible Minister's office) with the Planning Secretary, DPHI and/or other persons, at which the designation of the Spit Junction area in Mosman as a ‘town centre’ under what became the Town Centres Map was discussed in the Relevant Period”. This material was submitted primarily to relate to Ground 2B of the amended summons.
Row 5 of MG-2 Index (30 September 2024): The document in Row 5 of the MG-2 Index (“240930_CR_MO preliminary approved centres(1)”) is dated 30 September 2024. The first respondent describes this document in the following terms (i) email correspondence discussing inclusion of Town Centres for LMR policy; and (ii) draft Annexure to Cabinet submission. The PII claim is made in respect of the entire contents of this document. The applicant submitted that this claim appears to be both a contents claim and a class claim (the latter, in respect of the draft attachment to a cabinet submission). The applicant submitted that the “footing” of the claim needed to be clarified by the first respondent, and that the first respondent must assert that the entirety of the email and attachment reveals “the contents of Cabinet discussions, or the proposed or actual contents of Cabinet discussions”. Given that this document pre-dates the November meeting, it must reveal proposed Cabinet discussions. The applicant also noted that the first respondent had indicated that this document is responsive to Category 2 of the first NTP. This material was submitted primarily to relate to Ground 2B of the amended summons.
Row 3 of MG-2 Index (20 August 2024 to 29 October 2024): The document in Row 3 of the MG-2 Index (“Re_Low and mid rise centres – questions from today’s meeting_complete email chain+redactions”) is dated 20 August 2024 to 29 October 2024. The PII claim is made in respect of part of this document, the applicant submitted that the first respondent must assert that the relevant part(s) of the document reveal(s) “the contents of Cabinet discussions, or the proposed or actual contents of Cabinet discussions”. Given that this document pre-dates the November meeting, it must reveal proposed Cabinet discussions. This document comprises email correspondence discussing the inclusion of Town Centres for the LMR policy. The applicant also noted that the first respondent had indicated that this email correspondence is responsive to Category 14 of the first NTP. This material was again submitted primarily to relate to Ground 2B of the amended summons.
Row 1 of MG-2 Index (30 October 2024 to 13 February 2025): The document in Row 1 of the MG-2 Index (“RE_LMR - instructions to update TOD Sites Map (1)”) is dated 30 October 2024 to 13 February 2025. The document is described as email correspondence discussing the inclusion of Town Centres for the LMR policy. The PII claim is made in respect of part of this document. The applicant submitted that it must be asserted that the relevant part(s) of the document reveal(s) “the contents of Cabinet discussions, or the proposed or actual contents of Cabinet discussions”. The applicant has a redacted version (Document 31) and the redactions for PII appear to be contained in the emails dated 30, 31 October 2024, 6, 8, 11, and 15 November 2024; and 5, 11, and 12 February 2025. The redactions reinforce that the claim must be brought on the basis of the contents of the email correspondence. The applicant submitted that it is for the first respondent to clarify the basis on which it brings the PII claim. The first respondent had indicated that this email chain is responsive to Categories 10 and 11 of the first NTP which in broad terms concern the publication and amendment of the Town Centres Map. This material was submitted primarily to relate to Grounds 2A and 2B of the amended summons.

The first respondent submitted that the fact that there is a convention in favour of confidentiality and against disclosure of Cabinet information is properly to be viewed as a matter relevant to the Executive government's consideration of whether to assert a claim for public interest immunity, but does not create any obligation or duty on the part of the government to assert such claims. Further, the first respondent submitted, notwithstanding that public interest immunity cannot be waived, it was open to the Executive government to produce, in redacted (or filtered) form, the spreadsheets on the basis that it was in the public interest for the proper administration of justice to produce material which was relevant to a key issue in the substantive proceedings, namely, material relating to Mosman Town Centre. And as such, it was also open to maintain a claim of public interest immunity in respect of the balance of the material which does not relate to Mosman Town Centre.
In relation to the applicant’s submission that "the Gibson Affidavit gives no explanation as to why material created several months before the Cabinet submission can fall within the scope of its class claim", the first respondent submitted that the spreadsheets the subject of MG-1 are spreadsheets created by the DPHI for the purpose of assessing and ultimately recommending suitable Town Centres and stations for the LMR policy which was ultimately annexed to a Cabinet submission. Further, each of the spreadsheets was a different iteration of the lists of the Town Centres and stations created to assess each Town Centre against set criteria. Notwithstanding the approximate dates of the creation of the spreadsheets, they nonetheless constitute draft versions of the annexure which was submitted to Cabinet, each version of each spreadsheet being used in order to create the "final list" which was annexed to a Cabinet submission.
In relation to the applicant’s contention that some documents were not intended to be attachments to a Cabinet submission given the file names (including "MO Responses", "comments" and "for Minister"), the first respondent submitted that whilst it is correct to say that some documents were for the attention of the "Ministers Office" or contained the "Minister's Responses" or were prepared for the purpose of engaging with local councils, the spreadsheets outline the iterative process which was undertaken by DPHI in formulating the "final list" which was annexed to a Cabinet submission.
In relation to the material contained in confidential exhibit MG-2, the first respondent submitted that that material falls within a class of documents which were created for the purpose of formulating a submission to Cabinet, and referred to the decision of Menzies J in Lanyon Pty Ltd v The Commonwealth of Australia [79] where his Honour upheld a claim for privilege for documents of a particular class which were described at 653 as:

Since the publication of my decision on 24 November 2025 (the 24 November 2025 decision), it has been brought to the Court’s attention that at the hearing on 27 October 2025, the respondent read the affidavit of Thomas Loomes, Executive Director, Strategic Planning and Policy at the Department of Planning Housing and Infrastructure dated 27 October 2025. Mr Loomes deposes that the documents described in paragraphs 17(a)-(b) of the Gibson affidavit and set out in rows [19]-[20] of the table attached to the 24 November 2025 decision titled “Court’s rulings in relation to the first respondent’s PII claims” concerning confidential exhibit MG-1 were created exclusively for the purpose of informing Cabinet in their decisions in respect of the LMR SEPP and LMR Policy at a proposed February 2025 meeting of Cabinet, which was later cancelled. But for the proposed February 2025 Cabinet meeting, Mr Loomes says the documents would not have been created. I am satisfied that the whole email train described in paragraph 15(l) of the Gibson affidavit and set out in row [1] of the table attached to the 24 November 2025 decision titled “Court’s rulings in relation to the first respondent’s PII claims” concerning confidential exhibit MG-2 was created for the purpose of informing Cabinet, and is subject to public interest immunity.
In the circumstances deposed to by Mr Loomes, the Court makes the following orders pursuant to r 36.16(3B) of the Uniform Civil Procedure Rules 2005 (NSW):
In relation to the documents in rows [19]-[20] of the table attached to the 24 November 2025 decision titled "Court's rulings in relation to the first respondent's PII claims" concerning confidential exhibit MG-1 to the affidavit of Monica Gibson dated 22 September 2025, the first respondent's claim for public interest immunity is upheld.
In relation to the whole document in row [1] of the table attached to this decision titled "Court's rulings in relation to the first respondent's PII claims" concerning confidential exhibit MG-2 to the affidavit of Monica Gibson dated 22 September 2025, the first respondent's claim for public interest immunity is upheld.

Pearson v State of New South Wales

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English brief of this case

Catchwords

Judgment

JUDGMENT

Introduction

Relevant procedural background

Evidence

Applicant’s evidence in relation to the motion for expert evidence

Applicant’s evidence in relation to the motion for production

First respondent’s evidence in relation to the applicant’s motion for expert evidence

First respondent’s evidence in relation to the applicant’s motion for production

First respondent’s evidence in relation to its PII motion

Relevant legislative provisions

Evidence Act 1995 (NSW)

Civil Procedure Act 2005

Uniform Civil Procedure Rules 2005

Environmental Planning and Assessment Act 1979

Housing SEPP as amended by the LMR SEPP

Principles in relation to expert evidence in judicial review proceedings

Principles in relation to public interest immunity

Applicant’s motion for expert evidence

Applicant’s submissions in relation to her motion for expert evidence

First respondent’s submissions in relation to the applicant’s motion for expert evidence

Expert evidence in respect of technical terms

Expert evidence in respect of the local circumstances

Expert evidence to demonstrate an absurd or arbitrary result

The operation of the LMR SEPP “in practice”

Case management considerations

Consideration and decision in relation to the applicant’s motion for expert evidence

The first respondent’s PII motion

First respondent’s submissions in relation to the PII motion

Draft attachments to Cabinet submissions and documents prepared to inform Cabinet

Documents disclosing the contents of submissions or decisions of Cabinet

240820 JA LMR Centres selection explanatory note v 0.3

Applicant’s submissions in relation to the first respondent’s PII motion

PII “class” claims (confidential exhibit MG-1)

PII “content” or “class” claims (confidential exhibit MG-2)

First respondent’s submissions in reply in relation to the PII motion

Consideration and decision in relation to the first respondent’s PII motion

Costs

Orders

Addendum made on 5 December 2025

Endnotes

Amendments

24 November 2025

05 December 2025

Parties

Legislation Cited (9)

Cases Cited (36)