Protect Penrith Action Group Inc v Penrith City Council and Ors

The litigation

1. Each of the two development consents for a place of public worship granted by the Council is subject to challenge in Class 4 of the Court's jurisdiction by the Protect Penrith Action Group Inc ("the Applicant"). The nature of these proceedings, being for judicial review of the Council's decision-making process (this potentially encompasses examining every step from validity of the originating application through to the Council's determination to grant consent and the terms of the conditions that have been attached thereto), do not involve or permit any examination of the merits of either decision of the Council.
2. The ability to launch such a challenge arises from the open standing provisions of s 123 of the Environmental Planning and Assessment Act 1979 ("the Planning Act"), the enactment within the framework of which (together with any other relevant statutory provisions that might be engaged, for example, the Contaminated Land Management Act 1997, if either site were to be contaminated) each application was required to be considered by the Council.
3. The objectives upon which the Applicant is founded, or the applicant's motives for bringing the proceedings, are irrelevant in such proceedings.
4. Equally (and of significance for reasons that will be explained subsequently), the fact that the nature of the place of worship in each instance is to be as a mosque is also a matter of complete irrelevance in each of these proceedings. Each development consent grants approval for a place of public worship as defined and only subject to such conditions as may be attached to the consent. Put simply (a theme to which I will return), such a consent is theistically neutral and non-specific.

These notices of motion

1. As part of the preliminaries before the Court proceeds to hear and determine each of the substantive Class 4 applications, a number of interlocutory applications have been required to be dealt with concerning each proposed place of public worship with this decision dealing with but one of them, an application made by Notice of Motion in each of the proceedings for leave to be given pursuant to rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 ("UCPR") for directions to permit the Applicant to rely on expert evidence in each of the proceedings.
2. The order sought, in each Notice of Motion, was in the following terms: 1 Directions pursuant to UCPR 31.19 and 31.20 for the plaintiff to adduce expert evidence at the trial as to town planning issues, traffic management issues and social impact issues as raised in the Amended Summons (Judicial Review) filed 20 March 2015 in these proceedings.
3. The proposals to seek such leave for town planning and traffic evidence have, in each instance, been abandoned by the Applicant.
4. In each instance, the application for leave to rely on expert social planning evidence is resisted, not only by the Council but by the relevant development proponent, the Second Respondent in each proceeding.

The nature of Class 4 proceedings

1. It is also well-established that proceedings such as these are confined to an examination of the validity or otherwise of the Council's decision-making process and do not permit a re-agitation of the merits of either application. As a consequence, if expert evidence were to be permitted, such evidence would, of foundational necessity, be required to be confined to matters relating to the process and not the merits of the application.

The approach to granting leave

1. It is clear from the authorities that applications seeking granting of leave to adduce expert evidence in proceedings such as these are not merely formalities.
2. The written and oral submissions in these interlocutory proceedings canvassed a wide range of those earlier decisions about the circumstances under which it might or might not be appropriate to exercise discretion to grant leave to adduce expert evidence in Class 4 proceedings.
3. The broad effect of those authorities (compendiously identified by Sheahan J in Botany Bay City Council v The Minister for Planning and Infrastructure [2014] NSWLEC 14) demonstrate that the path for such leave is narrow and the hurdles to be overcome are high.
4. However, given that I have concluded, for the reasons that are set out in detail below, that the approach taken by whoever instructed Dr Judith Stubbs (as to the questions to which she was requested to respond) posed questions leading to responses tainted in an entirely impermissible fashion so as to render that which she has written of no assistance to the Applicant, it is unnecessary for me to canvass any of those decisions in detail.

The hearing of the Motions

1. The two Notices of Motion came before me as the List Judge on 28 August 2015 and have had one subsequent hearing with the final hearing on 8 October 2015. I have also dealt with other procedural elements in each of the proceedings, procedural aspects that do not need to be detailed for the purposes of my determination of each of these applications.
2. As the leave sought in each proceeding is the same, they have been heard together on the basis that evidence and submissions in one was to be taken as evidence and submissions in each to the extent relevant. The effect of that has been that the submissions by Mr James Loxton, counsel for the Applicant in each proceedings, and those by Ms Verity McWilliam, counsel for the Council in each proceedings, have been made as submissions in both proceedings whilst those of Mr Michael Wright, counsel for the development proponent in the first of the proceedings (matter 40129 of 2015), have been made submissions in those proceedings. The legal representative of the development proponent in the second proceedings (matter 40130 of 2015), however, chose to adopt, without additional submissions, the submissions advanced by Ms McWilliam and Mr Wright.
3. Although the reasons why the Applicant is unsuccessful on each motion arise for confined factual reasons as later explained, each of the three advocates who actively took part on the motions provided helpful written submissions in support of the position adopted by the party they were representing.

Leave for evidence on the Motions

1. To enable Mr Loxton to demonstrate the nature of the evidence that was proposed to be adduced, the Applicant was granted leave to rely, for the purposes of the motions, on evidence that would demonstrate the nature of the social planning evidence for which leave was being sought.

The basis of the applicant's social impact objections

1. Ms McWilliam said in her written submissions at [6]: It is inferred from these particulars [but being, I interpolate, the further particulars at Appendix B to Mr Robert Balzola's affidavit dated 25 September 2015] and the context of "Ground 1" that the Applicant's complaint is: (a) That a social impact assessment ought to have been carried out but was not carried out; or (b) That any assessment that was carried out was not a proper, genuine and realistic consideration of the matter.
2. Adopting those inferences, as I am satisfied that they are appropriate so to be adopted in the context of these motions, I then turn to consider whether the material written by Dr Stubbs (discussed below) provides a proper basis for the admission of evidence, on either or both of those complaints when the matter proceeds to be determined on a substantive basis.
3. In passing, I also record that Ms McWilliam observed, in her written submissions at [7]: It is noted that although Counsel for the applicant previously raised a complaint of Wednesbury unreasonableness in submissions, such a ground is not pleaded and following the provision of the particulars referred to above, it is assumed that any issue in that regard is not pressed.
4. Mr Loxton did not demur from this position in either his written or oral submissions.

The hearing

1. When the matter came before me for substantial hearing on 8 October 2015, Mr Loxton read a short affidavit attested by Mr Balzola, his instructing solicitor - to which was appended a report prepared by Dr Stubbs, a social planning expert who has given evidence on such matters in the Court on past occasions.
2. Although her report did not comply with the requirements of the UCPR for expert reports, that is not relevant in these proceedings as what was being here provided was expert evidence as to the scope of expert evidence, a step removed from the process on the substantial consideration of the Applicant's challenges to these development consents. As a consequence, despite this defect, I considered that it was appropriate to have regard to Dr Stubbs' report annexed to the affidavit and objections to my doing so were not strongly pressed.

The scope of leave if granted

1. During the course of the hearing on 8 October 2015, I indicated to Mr Loxton that I considered that the nature of leave sought was in far too general terms and that, if I were minded to grant leave, it would be, at its widest, of confined scope. I indicated to him a tentative maximum scope for such leave being granted pursuant to r 31.20(2)(d) of the UCPR as being confined to: Whether the Council failed to consider, with respect to the question of social impact, adequately or at all, either relevant elements of the relevant Penrith Development Control Plan (as required by s 79C(1)(a)(3) of the Planning Act) or matters of social impact in the locality (as required by s 79C(1)(b) of the Planning Act).
2. My consideration of whether or not leave should be granted is confined to my consideration of whether or not either of the elements foreshadowed within that potential limited leave should be responded to affirmatively.
3. The use of the expression, "the relevant Penrith Development Control Plan", rather than the nomination of a specific development control plan arises from the fact that the development control plan pleaded in each amended summons is the Penrith Development Control Plan 2010 ("the 2010 DCP"), whilst that which was handed up by Mr Loxton during the course of his submissions were extracts from the Penrith Development Control Plan 2014 ("the 2014 DCP") and the material provided to Dr Stubbs with her instructions to prepare a report was, as discussed in more detail later, material from the 2014 DCP and not from the 2010 DCP.

Introduction

1. It is clear from the structure of Dr Stubbs' report that she has responded to the instructions given to her by answering three questions that were posed in her instructions and providing what might be regarded as a preliminary (and provisional) outline of the structure of a social assessment report such as might have been required to be undertaken for these two developments.
2. The first step to be taken in my consideration of her report is an examination of the introduction to her report followed by an examination of each of the questions that were posed for her consideration and her response to each of them. The questions to which she has responded were those which were put to her on behalf of the Applicant and their terms were not settled, in any sense at all, through any "in court" process in which I, or the legal representatives of the other parties to each of the proceedings, participated.
3. The fact that her instructions on behalf of the Applicant were the exclusive responsibility of those providing them is a matter of fundamental significance, given the comments that follow concerning not only the questions posed for her consideration but of her responses to them.
4. The three questions posed for her consideration were in the following terms: 1. What issues would a party seeking development consent for a place of worship in general, and a mosque in particular, have to consider as relevant to a social impact assessment for that development? 2. What issues would the parties then consider to determine whether a social impact assessment should be carried out or not? 3. If it is decided to carry out the social impact assessment, what issues would it consider and how would that be done?
5. In addition to being asked to answer the three questions set out above, Dr Stubbs also noted that: I have been provided with notices of determination for both developments and with parts F3 and F5 of Penrith DCP 2014.
6. I return, later, to the contextual relevance of this observation by Dr Stubbs.

The introduction to Dr Stubbs' report

1. Dr Stubbs noted in her introduction: Each of the questions is addressed below. This is followed by a preliminary assessment of the potential social impacts of the proposed mosques in their localities. This indicates whether a social impact assessment is likely to be required with respect to the application for the mosques. It is my opinion that it would be prudent to conduct such an assessment given the nature and likely perceptions of the proposed development, and the physical and social context within which the mosques are located. Given the size and nature of the proposed development, there is a reasonable risk of amenity impacts as discussed below, including those related to physical nature of the development, and related to community expectations, social cohesion, and the potential for intercultural conflict. The locality of the proposed development also indicates that there may be some adverse amenity impacts on the mosque itself that may need to be fully assessed and mitigated. There are also likely to be significant concerns from some sections of the community about safety and security issues associated with the mosque and its users, as discussed below, regardless of whether there is an evidence base to such community concerns.
2. Two matters warrant being noted with respect to these comments in Dr Stubbs' introduction.
3. First (going to the fundamental basis of the subsequent material she has written) is that these remarks make it clear that she has considered each proposed development on the basis that it is a mosque and not simply a place of public worship. This is entirely clear from the terms of that which I have quoted above.
4. Second, the observations that are set out in the fourth of the paragraphs quoted (suggesting that social impact assessment would be appropriate for a mosque arising from safety and security issues held by some sections of the community regardless of whether there is any evidentiary basis for such community concerns) is expressly contrary to the established legal position as summarised by Lloyd J, in New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154; 127 LGERA 303 at 316, where he said: A fear or concern without rational or justified foundation is not a matter, which, by itself, can be considered as an amenity or social impact pursuant to s79C(1) of the EP&A Act.
5. Dr Stubbs' introductory remarks continued, relevantly, saying: Finally, the likelihood of adverse public reaction to the proposed development is likely to be sufficient to warrant preparation of a social impact assessment, including to put in place positive mitigation strategies in the event of an approval, in order to reduce future conflict. This would include the opportunity for proactive community building and community education about the reasonable expectations of the operation of a mosque, and the Islamic community. If properly addressed through conditions of consent, this could lead to positive intercultural outcomes from a potentially conflictual situation.
6. It is clear that those aspects of that which could be expected, reasonably, to occur at either site or be feared, no matter how irrationally, to be expected to occur at the site are, in the context within which she has written, entirely and impermissibly coloured by the fact that the form of worship proposed for each of the places of public worship is to be as a mosque to serve the Islamic community.
7. However, it is also necessary, for these interlocutory purposes, to consider not only the terms of her responses to the questions but also, separately, the terms of the questions themselves.

Question 1

1. As set out immediately above, the first question posed to Dr Stubbs was in the following terms: What issues would a party seeking development consent for a place of worship in general, and a mosque in particular, have to consider as relevant to a social impact assessment for that development? (emphasis added)
2. The emphasis that I have added demonstrates starkly the fact that the questions' author was conflating the nature of the proposed worship with the proposal for development consent for a place of public worship. This, as earlier observed, is simply impermissible.
3. To the extent that the incorporation of the emphasised words colours (as their inclusion self-evidently does) that which is subsequently set out in Dr Stubbs' discussion of the questions posed to her means that that discussion has no utility whatsoever in providing a foundation for exercising a discretion to permit the adducing of expert evidence - expert evidence which, if permitted, would be required to be confined to the process appropriate to be undertaken by the Council to the precise end of considering an application for a place of public worship simpliciter and not for an application for approval of a place of public worship that was to be a mosque.
4. The posing of this question to her in this form clearly demonstrates that whoever drafted it simply did not understand, or chose to ignore, the distinction well-known in planning law about the difference between use and purpose (as canvassed, comprehensively, by Preston CJ in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400).
5. In addition to the failure to deal with these proposed developments simply as places of public worship and setting aside the fact that the worship is as a mosque, the first question addresses solely what would be the appropriate consideration for a party seeking development consent.
6. This is a matter of irrelevance, as what is being examined in these proceedings has nothing to do with the actions or inactions of the development proponent for either place of public worship but with the processes of the Council in accepting, considering and determining to approve the development application for each place of public worship.
7. Question 1 and the response to it are irrelevant to the present proceedings and whatever might be said in response to it can be of no assistance to the Court in the consideration and determination of either Class 4 application.
8. It is, therefore, unnecessary to address the matters that are set out by Dr Stubbs in her response to this first question. It is pertinent to note, briefly, that a number of the matters to which she refers are matters properly, at least initially, falling within areas of expertise other than those of social impact assessment.
9. However, to the extent that noise or traffic/parking issues (or a combination of them), for example, might give rise to issues of social impact, the matters to be considered are confined to proper planning concerns.
10. As to acoustic impacts, it matters not whether the sounds summoning the faithful to prayer arise from the pealing of the Angelus bell or from the call of the muezzin, it is the technical attributes of the noise (its sound power, its tonality and the time at which it is proposed to be emitted being amongst them) that are relevant, not the motivation for its emission.
11. Similarly, it matters not whether parking/traffic concerns arise as a consequence of celebration of the festival of Eid al-Fitr at the end of Ramadan or because of celebrations of the birth of the baby Jesus at Christmas. It is the extent of and impacts from the traffic/parking that are relevant not the nature of the event giving rise to them.
12. Impacts of these types are theistically neutral and the nature of the religious activity giving rise to them is irrelevant.

Question 2

1. As earlier noted, the second question to which Dr Stubbs turned her attention was a question posed to her in the following terms: What issues would the parties then consider to determine whether a social impact assessment should be carried out or not?
2. This question, although using the words "the parties", deals with matters potentially germane to the activities of a consent authority rather than those of a development proponent or a development proponent and a consent authority conjointly. That which Dr Stubbs wrote in response to this question was in the following terms: The following types of considerations would determine whether a social impact assessment is required. A determination of whether an assessment would be required would not require all of these issues to be present. Rather, the presence of one or more of these issues may be sufficient to warrant prudent consideration of a social impact assessment. ●The significance or seriousness of potential adverse social impacts in the locality; ●The degree of risk associated with potential adverse social impacts in the locality; ●The 'impact history' of the proposed locality, including any social or cultural sensitivities that would make it more vulnerable to adverse social impacts; ●The nature and proximity of sensitive land uses in the locality; ●The cumulative impacts of the development, including other relevant approvals or developments that may intensify any adverse impacts of the approval of this mosque; and ●The nature, extent and quantum of community concerns and/or likely objections regarding the proposed mosque. It is likely that many of these issues would not be evidence without at least a preliminary assessment of the potential social impacts of the proposed development.
3. However, the defect in regarding this commentary as providing utility in a broad assessment process is the impermissible taint contained in the fifth and sixth dot points by suggesting that a consent authority should have any regard to the fact that each of these development proposals should not be treated solely on a theistically neutral basis but rather on the basis that the form of worship is to be as a mosque. Doing so imports a fundamentally impermissible flavour to the consideration and, in my assessment, removes any broader utility of these comments.

Question 3

1. As earlier set out, the third of the questions to which Dr Stubbs was requested to respond was in the following terms: If it is decided to carry out the social impact assessment, what issues would it consider and how would that be done?
2. Much of that which is set out in response to Question 3 could, at a level of generality, be considered to be a description of that which Dr Stubbs might be proposing should have been addressed through the Council's processes for each of these proposed developments.
3. However, that is not what her response, on its face, does. The preambular element to the question, "If it is decided to carry out the social impact assessment …", makes it clear that this question arises in a context of being necessarily conditional on a particular response (concluding that such a social impact assessment is necessary) to the first and second questions.
4. As the first and second questions are tainted, impermissibly, there is little utility in considering the detail of her response to this question even had it been relevant to determination of matters properly before the Court in these two Class 4 proceedings.
5. However, it is also appropriate to note that, in the eighth subsidiary dot point to her fifth primary dot point in response to this question, Dr Stubbs wrote: Safety or security issues that might potentially arise from the presence of more radical groups among the mosque users, and strategies for addressing this if required…
6. Such a suggestion is based on the identification of each of the proposed developments as a mosque. What is implied as potentially arising from that may well be a matter for consideration by other authorities (but I am not to be taken to be suggesting that it should be such a consideration in either of these instances) but is certainly entirely outside the scope of a proper assessment against the necessary mandatory criterion engaged by the leave sought pursuant to each of these motions - being of matters of "the likely impacts of that development, including … social … impacts in the locality" (as required by s 79C(1)(b) of the Planning Act) of a place of public worship.

Dr Stubbs' preliminary assessment

1. As earlier noted, in her introduction to her report relied upon for these motions, Dr Stubbs has provided what she describes as "a preliminary assessment of the social impacts of the proposed mosques in their localities". In her document, this follows the conclusion of her answer to Question 3 discussed above. Although described by Dr Stubbs in the terms set out, this element of her report is, in fact, entitled "Appendix A: Framing the Assessment of Social and Economic Impacts".
2. It is unnecessary to set out much of the content of this document as it does, in fact, almost exclusively deal with broad framework issues for such assessments. However, does so under the following broad headings: Overview Considerations under the EP&A Act Best practice in Social Impact Assessment Identification of 'Locality' Penrith DCP 2014
3. It is, to start, pertinent to set out the short paragraph that comprises the content under the heading "Overview". It is in the following terms: The assessment of relevant social and economic impacts is undertaken within the framework provided by the Environmental Planning and Assessment Act 1979 (NSW), relevant case law, Clause C of Appendix F5 Technical Information of Penrith Development Control Plan 2014, and good practice in impact assessment.
4. In addition, under the heading "Penrith DCP 2014", the concluding element of Appendix A, Dr Stubbs wrote: Table F5.1 in Appendix F5 Technical Information of Penrith Development Control Plan 2014 sets out possible social impacts to be considered when identifying the issues.
5. To the extent that Dr Stubbs sets out broad framework matters for social impact assessments, they are unexceptional, although they do not provide, in any functional way, any guidance of what might be the appropriate process or requirements of consideration by a consent authority of social impacts of a development proposal.
6. However, to the extent that this document might have been anticipated by the Applicant to provide the foundations for a document that might have been sought to be relied upon in the substantive proceedings, its identification of parts of the 2014 DCP as being amongst the foundational elements of such a document demonstrate that such a document was likely to be fundamentally flawed and of limited (if any) utility in the substantive proceedings, no matter what other defects might or might not have been apparent in such a finalised document. The reasons for this are set out below

The 2014 DCP

1. The development consent that is the subject of matter 40129 of 2015 was granted by notice of development consent operating from 11 November 2014. The notice of development consent in matter 40130 of 2015 operated from 9 December 2014.
2. During the course of his submissions, Mr Loxton handed up extracts from the 2014 DCP. The extracts handed up comprised at least parts (if not all) of the material with which Dr Stubbs had been briefed, as earlier set out.
3. They also comprise part (if not all) of the material adverted to in particulars 5 to 8 of the further particulars earlier referred to as having been attached, as Annexure B, to Mr Balzola's affidavit, attested 25 September 2015.
4. The summons commencing each of these proceedings specifically pleads (in [3] and [4] under the heading "Planning controls", in the first matter, and in [5] and [6] under the heading "Planning controls", in the second matter) that the relevant development control plan applicable at the time of determination of each development consent was the 2010 DCP.
5. The 2014 DCP, at s 1.5, repealed the 2010 DCP but only did so on and from the date of coming into effect of the 2014 DCP. At s 1.8 of the 2014 DCP it is recorded that that 2014 DCP was adopted by the Council on 23 March 2015 and came into effect on 17 April 2015.
6. Therefore, at least to the extent that I need to consider it (and the question of whether, in light of the further particulars provided as Attachment B to the affidavit cited above, the 2014 DCP might subsequently be engaged in the substantive proceedings, will be a matter for the Court as then constituted), it is clear that whatever might be the terms of the 2014 DCP, they can play no role in my consideration of this application.
7. Whoever briefed Dr Stubbs with the material from the 2014 DCP, in doing so, provided her with material that has no utility, at the very least, in this stage of these proceedings.

Costs

1. The proceedings extended beyond the time that they might have otherwise taken as a consequence of the fact that the first social planner approached by the Applicant was not considered appropriate by the Applicant (for reasons that are unknown to me but which, in any event, would be irrelevant to these motions) and further time was permitted for the obtaining of this evidence. The Applicant agreed to pay the costs thrown away by the other parties as a consequence of being permitted this further time.
2. During the course of this interlocutory hearing, the Applicant gave a number of undertakings as to costs incurred in these interlocutory proceedings to the parties to each of these proceedings. Those undertakings differed from party to party and between the two proceedings. Those costs undertakings extinguished any entitlement of a benefiting party to further costs for the element so encompassed.
3. As a consequence, although it is customary for the unsuccessful party on a motion such as this to be subject to orders for costs, those orders in these interlocutory proceedings need to encompass the fact that significant elements of the costs associated with the motion, in each instance, have earlier been dealt with by undertakings given on behalf of the Applicant.

Conclusion

1. I have concluded that, in each instance, the motion to adduce expert social impact evidence should be dismissed. I have reached this conclusion for two primary reasons applicable in each instance. First, the questions that were put to Dr Stubbs, by their inclusion of the words "and particularly as a mosque" in Question 1 caused Dr Stubbs to write her report on the assumption that the fact that the place of public worship, in each instance, was proposed to be a mosque was a matter of relevant consideration when it is not. The development consent, in each instance, has been given to a place of public worship, a theistically neutral concept.
2. Second, however, having proceeded down the path along which she was impermissibly invited, Dr Stubbs herself elected to deal with several matters in a fashion that, in themselves, were impermissible in any proper planning context (whether a planning context concerning a place of public worship or some other form of development).
3. The nature of the material prepared by Dr Stubbs, being impermissibly tainted for the reasons earlier set out in detail, provides no valid basis to support the proposition that such social impact evidence was necessary and appropriate to enable a proper exploration of the Council's assessment processes for each of these development proposals.
4. As a consequence, both motions must be dismissed and, although the relevant costs orders must be crafted to take account of costs undertakings already given in each motion, the applicant must bear such additional costs as are appropriate and bear them on an "as agreed or assessed basis".

Orders

1. It therefore follows that the orders of the Court must be:

In Matter No 40129 of 2015: 1. The Applicant's application for leave to adduce expert social planning evidence is refused; and 2. The Applicant is to pay those costs, as agreed or assessed, of the Respondents on the motion where those costs were for elements of the hearing on the motion not otherwise encompassed by earlier costs undertakings given on behalf of the Applicant.

1. It therefore follows that the orders of the Court must be:

In Matter No 40130 of 2015: 1. The Applicant's application for leave to adduce expert social planning evidence is refused; and 2. The Applicant is to pay those costs, as agreed or assessed, of the Respondents ​on the motion where those costs were for elements of the hearing on the motion not otherwise encompassed by earlier costs undertakings given on behalf of the Applicant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2015