Ziatabari -V- Ku-Ring-Gai Council [1999] NSWLEC 139

Land and Environment Court (NSW)|1999-04-09|Before: Bignold J, Mr J

The Applicant's objection to the full extent of the relief claimed is based upon the terms of the Court's Practice Direction par 9 dealing with the making of consent orders. I have earlier recited passages from the Practice Direction par 9, being those portions that were added to the Practice Direction by further Practice Direction which commenced on 1 February 1998.

It is the general practice of the Court (as I would understand it) when the Court is asked to make consent orders disposing of development appeals and the like, where resident objectors wish to be heard, for the Court to hear them. This is in the context of the Court's consideration of the making of the consent orders that the parties have presented to the Court. I am told that generally speaking, the views of the residents are made known to the Court either by their direct participation or by being legally represented and generally, resident participation does not involve the filing of expert evidence or the cross-examination of expert witnesses called by the Applicant and the Respondent. The calling of expert witnesses by the parties in circumstances where the Court is being asked to make orders by consent is not readily appreciated by me. However I think the practice may have developed that the Court, when confronted by consent orders which are opposed by local residents whose views are made known to the Court has led the Court to embark upon some evaluation of the expert reports that may have been filed by the parties (generally prior to the draft consent orders being presented to the Court). Inevitably, such a practice converts the more formal procedure of the Court considering consent orders into some form of hearing on the merits of the case and I take it that it is in those circumstances, that the Court has had regard to expert evidence filed by the parties. This practice brings into sharp focus and relief, the present Motion, and in particular, whether the person seeking participation pursuant to the Act (s 38(2)) (but not as a party) should have the entitlement or the leave to call expert evidence.

Mr Hudson, on behalf of the Applicant has helpfully drawn my attention to a recent decision of Cowdroy AJ in a case where a Motion was before the Court, seeking leave be granted to neighbouring objectors to a development, that they be entitled to lead evidence, cross-examine witnesses and make submissions in an appeal which was pending in the Court and was fixed to be heard by a Commissioner of the Court in about two weeks' time from the date that the Motion was before the Court. The case referred to is Naylor Shaw Associates Pty Limited v Sutherland Shire Council (1999) NSWLEC 11. In the event, his Honour refused the application to call expert evidence and to cross-examine expert witnesses. The reasons for that decision are found in par 6 of his Honour's reasons for judgment where he said:

In addition to granting the objectors the right to attend the hearing, be represented by counsel, adduce evidence of lay witnesses and to make submissions, permission to call the expert evidence would be tantamount to rendering them parties. Such would defeat the object of s 38 of the Land and Environment Court Act and would also be contrary to the concept that only those cases in which designated development are concerned entitled third parties to appear.

No such privilege is granted in the case where the development is not designated development. Unless exceptional circumstances are shown to exist which could lead to an injustice, the Court should decline such request.

I should point out that in that particular case, the parties did not oppose what his Honour described as " intervention " by the neighbours on the basis that such intervention be limited to them being represented by counsel and by being permitted to adduce lay evidence and to make submissions. I should also add that in declining the application to call expert evidence, his Honour went on to say that it would be inappropriate to grant such an entitlement in the case where the intervenor had had extensive correspondence with the Council concerning the development, had had an opportunity to address the Council on two occasions previously. Moreover, his Honour's view was that the expert evidence was of a kind that could readily be dealt with by submissions by a legal practitioner before the Commissioner.

Those factual matters, to the extent to which they bore upon his Honour's discretionary decision, have not been demonstrated to exist in the present case. What the present case demonstrates (and the evidence is confined in the affidavit of Heather McRae sworn on 26 March) is that the residents who opposed the application had been informed by the Council in December that the developer had appealed to this Court against the Council's refusal of the application. A meeting was then arranged between affected residents and Council servants culminating in a meeting with the Mayor and senior servants on 15 February 1999, at which meeting the prospect of the Council settling the matter and leaving the case to be disposed of by the Court by consent orders appears to have been raised.

In the Naylor Shaw case Cowdroy AJ correctly, in my respectful opinion, pointed out that the overriding consideration in the exercise of the Court's discretion was the interests of justice. Those interests obviously encompass, potentially at least, the interests of resident objectors. Otherwise the Court's Practice Direction par 9 would not exist. The difficult question for the Court is to adjust or to hold in proper balance, the interests of all parties including resident objectors in a given case.

In a case such as the present, the Court has before it a development application that has been refused by the Council and where the Applicant has appealed to the Court and the Court's duty is to determine the appeal. Where, as in the present case, the parties to the appeal ask the Court to dispose of the appeal by way of consent orders granting development consent, the Court's practice as reflected in the Practice Direction comes into play. Faced with such a situation the Court principally must determine whether or not it is appropriate to determine the case on the basis of the consent orders.

Generally speaking, where no resident objectors are involved, the Court will adopt the consent orders because there is a recognised public interest and policy in securing the early settlement of cases. However, the Court's practice from its inception, as reflected in the current Practice Direction par 9, has reserved to the Court ultimate responsibility for the disposal of cases including those where consent orders are presented to the Court with the invitation for the Court to make them and, whilever the appeal is pending in the Court, the Court must ultimately determine in the public interest, how the appeal should be finally disposed of. Where resident objectors oppose the consent orders they are conventionally heard by the Court.

In principle, I see no reason why in a given case residents are to be confined to giving lay evidence in opposing the development application. With great respect to Cowdroy AJ I do not consider that to allow residents to adduce expert evidence in addition to lay evidence is thereby to render them parties to the litigation. In my view, to grant leave pursuant to the Land and Environment Court Act (s 38) for the purposes sought in the present Motion, is not to render Mrs McRae a party to the litigation.

In the circumstances of the present case, the interests of justice would appear to support the case made by Mrs McRae that her participation should not be limited to that of calling lay evidence. Unlike the Shaw Naylor case where his Honour considered the Motion just two weeks before the case was fixed for hearing, in the present case the fresh hearing date is six weeks hence, and no problem with time is involved if leave is given to Mrs McRae to file expert evidence.

There is the risk that the one day allocated for the case may not be sufficient if there is to be a volume of expert evidence filed in the case and perhaps the parties will need to make some arrangement with the Registrar to provide against the risk of the case not being able to be disposed of in the one day. However, for the reasons given, I am satisfied that the relief claimed in par 2 of the Motion should be granted, that is that Mrs McRae be given leave to participate in the pending proceedings to the extent outlined in par 2.1, par 2.2, par 2.3 and par 2.4 of the Motion. Such entitlements are necessarily to be subject to any relevant direction given by the presiding Commissioner who hears the case.

Accordingly, I grant the relief claimed in par 2 of the Notice of Motion filed on 26 March 1999 by Heather McRae subject to any relevant direction made by the presiding Commissioner who hears the appeal. COUNSEL ADDRESSED HIS HONOUR: Within two weeks from today Mrs McRae will file and serve statement of issues and within three weeks of today Mrs McRae will file and serve any expert evidence. COUNSEL ADDRESSED HIS HONOUR: The statement of issues shall include a statement as to the areas of expertise that are to be dealt with in the expert evidence to be filed. COUNSEL ADDRESSED HIS HONOUR: Leave to approach the registrar if it is desired to secure any additional day. BLACKAH: Your Honour, there is some expert evidence on by the Applicant. Perhaps by three weeks prior to the hearing the Applicant file and serve all expert evidence upon which it relies upon my client.

HUDSON: Shouldn't we be entitled to see their evidence first?

HUDSON: Shouldn't it be in reply when you have got an allowance?

BLACKAH: Your Honour, no because the Applicant indicated at the last callover that there was a further statement of evidence to be filed which is in evidence in reply.

HUDSON: That's true, I beg your pardon, about the drainage.

BLACKAH: There was a further report and I don't want to be in a position where there is further reports in-chief. I have some of the reports, so if they could confirm that they are relying on those and certainly with any additional evidence in-chief three weeks prior.

HUDSON: Any further evidence-in-chief within three weeks.

HIS HONOUR: That's about three weeks, yes, we are almost exactly within three weeks. And then did you say, Mr Hudson, you may want to reply?

HUDSON: I would imagine that's probably going to make it a lot easier for the proceedings.

BLACKAH: A week before. So the Applicant to file any expert evidence in reply seven days before the hearing.

HIS HONOUR: Yes, I will adopt that as well, thank you. So I make those two additional directions.

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Land and Environment Court of New South Wales CITATION: Ziatabari -V- Ku-Ring-Gai Council [1999] NSWLEC 139

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