Land and Environment Court New South Wales

• Medium Neutral Citation: Site Plus Pty Ltd v Wollongong City Council [2014] NSWLEC 125
• Hearing dates: 9, 10, 17 August 2012
• Decision date: 22 August 2014
• Jurisdiction: Class 1
• Before: Craig J

Decision

1. Appeal dismissed

2. The Applicant must pay the First Respondent's costs of the appeal.

3. Exhibits tendered on the appeal may be returned.

• Catchwords: APPEAL - s 56A of the Land and Environment Court Act 1979 - development application for development and operation of a resource recovery facility - appeal to Court pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 - s 97 appeal dismissed - necessity to characterise land use of both the site proposed for the facility and the private access road to the site proposed by the Applicant - whether Commissioner erred on a question of law when characterising the access road as use for the purpose of a resource recovery facility - permissibility of "road" purpose under Wollongong Local Environmental Plan 2009 - characterisation of development as a "question of law" under s 56A - no error of law; APPEAL - s 56A of the Land and Environment Court Act 1979 - development application for development and operation of a resource recovery facility - appeal to Court pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 -s 97 appeal dismissed - whether the Council failed to act as a model litigant - whether any failure occasioned a miscarriage of justice - "miscarriage of justice" as a question of law under s 56A - identification of decision of Commissioner occasioning "miscarriage of justice" - obligation of Council to have volunteered material directed to its use of the site when opposing the grant of consent on traffic grounds - Council use of the site and opinions of Council staff favourable to the application identified in evidence before the Court - no failure of Council to act as a model litigant - no error of law
• Legislation Cited: Civil Procedure Act 2005 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 2000 (NSW); Evidence Act 1995 (NSW); Land and Environment Court Act 1979 (NSW); Local Government Act 1993 (NSW); State Environmental Planning Policy (Major Development) 2005; Uniform Civil Procedure Rules 2005 (NSW); Wollongong Local Environmental Plan 1990; Wollongong Local Environmental Plan 2009
• Cases Cited: ACCC v Leahy Petroleum Pty Ltd [2007] FCA 1844; Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202; Balenzuela v De Gail [1959] HCA 1; 101 CLR 226; Brennan v NSW Land and Housing Corporation [2011] NSWCA 298; 83 NSWLR 23; Buzrio Pty Ltd v Consumer, Trader and Tenancy Tribunal (No 3) [2009] NSWSC 1132; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400; Coffs Harbour City Council v Arrawarra Beach Pty Ltd [2006] NSWLEC 365; 148 LGERA 11; Commonwealth Bank of Australia v Quade [1991] HCA 61; 178 CLR 134; Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; 74 NSWLR 523; Edyp v Brazbuild Pty Ltd [2011] NSWCA 218; Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; Goodwin v Commissioner of Police [2010] NSWCA 239; Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1; House v The King [1936] HCA 40; 55 CLR 499; ISPT Pty Ltd v Valuer-General [2009] NSWCA 31; 165 LGERA 25; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390; Lizzio v Ryde Municipal Council [1983] HCA 22; 155 CLR 211; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537; Mahenthirarasa v State Rail Authority (No 2) [2008] NSWCA 201; 72 NSWLR 273; Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379; P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366; Scott v Handley [1999] FCA 404; 58 ALD 373; Scott's Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191; Site Plus Pty Limited v Wollongong City Council and anor [2011] NSWLEC 1371; Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439; Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2008] NSWLEC 39
• Category: Principal judgment
• Parties: Site Plus Pty Ltd (Applicant); Wollongong City Council (First Respondent); Southern Region Joint Regional Planning Panel (Second Respondent)
• Representation: Mr P C Tomasetti SC with V A McWilliam (Applicant); Mr T F Robertson SC with R M O'Gorman-Hughes (First Respondent); Submitting appearance (Second Respondent); Bahlmann Burke Lawyers (Applicant); Jeff Reilly, Wollongong City Council (First Respondent); Submitting appearance (Second Respondent)
• File Number(s): 11104 of 2011

Judgment

1 Site Plus Pty Limited, the Applicant, sought development consent under the provisions of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) to develop and operate a resource recovery facility on land at Cringila, south of Wollongong. It did so as project manager for The Recyclers NSW Pty Ltd, the company intending to carry out that development. Although the development application was lodged with the First Respondent, Wollongong City Council (the Council), the development application was determined by the Southern Region Joint Regional Planning Panel (the JRPP). The JRPP refused the application.

2 Being dissatisfied with the refusal of its development application, the Applicant appealed to the Court pursuant to s 97(1) of the EPA Act. Its appeal was dismissed by the then Acting Senior Commissioner (the Commissioner), exercising the jurisdiction of the Court (Site Plus Pty Limited v Wollongong City Council and anor [2011] NSWLEC 1371).

3 The Applicant appeals from the decision of the Commissioner pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (the Court Act). Its appeal is limited by s 56A(1) to a decision of the Commissioner on a question of law. As expressed in its written outline of submissions, the grounds upon which the Applicant ultimately relied were stated as being:

"(a) Incorrect characterisation of Land Use (the use of the access way was characterised as a resource recycling facility rather than as a road);

(b) Miscarriage of Justice (on the basis that material evidence that should have been before the Commissioner was not supplied)".

A third ground directed to claimed impermissible exclusion of evidence was not pressed on the hearing of the appeal.

The application for development consent

4 The application for consent to conduct a resource recovery facility identified the land upon which that development was to take place as Lot 2 in DP 217590, known as 133-141 Five Island Road, Cringila (Lot 2). Lot 2 was owned by the Council. It was land that was irregular in shape and had an area of about 7.6 hectares. It is the site of a former latite quarry, the excavation for which is described in the Commissioner's judgment as "creating an amphitheatre type appearance with vertical excavated walls up to 15 to 20 m in height". Essentially, it was the excavated quarry area that the Applicant proposed to use for its resource recovery facility.

5 An area of about 4,000m² within Lot 2 was excluded from the area in which the Applicant proposed to carry out its development. The excluded area was to remain available for use by the Council. The balance of Lot 2 was the subject of an agreement for lease between the Council and a company apparently associated with the intended user.

6 Shortly stated, the facility proposed by the Applicant involved the processing of up to 70,000 tonnes per annum of construction and demolition waste into what was described as viable secondary materials that were able to be reused. Waste materials would be brought to Lot 2, processed and then sold or transported away so that no storage on, or filling of, that land was involved. Machinery and equipment necessary to operate the facility would be located on Lot 2 with limited building works involved, confined to the construction of an entrance weighbridge, an amenities building, site office accommodation and a structure for minor plant storage. Landscaping and environmental rehabilitation works were also proposed.

7 Although Lot 2 had frontage to a local road known as Jarvie Road, the Applicant did not intend to use that road for access. Rather, it intended to use an existing private road providing access directly from Lot 2 to a major traffic thoroughfare known as Five Islands Road. The private road passed from Lot 2 through contiguous lots, being Lots 41 and 42 in DP 841437 (Lots 41 and 42), with Lot 41 having frontage to Five Islands Road. In light of the manner in which the present grounds of appeal were argued, it is necessary to say something further about the use of the access road through Lots 41 and 42.

8 Development consent for the operation of the latite quarry on Lot 2 appears to have been granted in October 1957. The Commissioner's judgment records that quarry operations were subsequently carried out on Lot 2 for a period of approximately 20 years.

9 By 1993, Lot 2 had been acquired by the Council as had the adjoining lot, being Lot 42. In that year the Council submitted to itself a development application for consent to carry out development on Lot 2 for "Land rehabilitation for Passive Recreation Utilising Proposed Cringila Builders Waste Landfill Facility". Consent to that application was granted in 1995 for a two stage development. Stage 1 involved use of Lot 2 by the Council for "stockpiling, recycling and minor emplacement of council construction waste". Stage 2 contemplated "general builder's refuse emplacement" followed by rehabilitation. The Statement of Environmental Effects that accompanied the development application recorded that while Stage 1 works were being undertaken, they were likely to generate an average of 15 trucks per day travelling to Lot 2. There were likely to be 270 trucks together with 130 motor vehicles per day travelling to Lot 2 once Stage 2 of the development was undertaken.

10 As it happened, only Stage 1 of that consent has ever been implemented. At the time at which the Applicant's development application was lodged with the Council, the Council was continuing to use Lot 2 for the storage of recyclable construction materials, generally from civil works being carried out by or on behalf of the Council. Access by Council trucks or other vehicles associated with that use has been via the access road within a right of way across Lot 41 and through 42.

Relevant planning controls

11 When the Applicant's development application was lodged with the Council, the local environmental plan applicable to development on both Lot 2 and Lots 41 and 42 was Wollongong Local Environmental Plan 2009 (LEP 2009). Under the provisions of that instrument, all of the relevant Lots were zoned E3 Environmental Management. The Land Use Table for land so zoned stipulated that development for the purpose of "industries" was prohibited. As I understand the submissions of the parties, it is accepted by all, having regard to the definition of "industry" in the Dictionary to LEP 2009, that development for the purpose of a resource recovery facility would be prohibited. Use of land within that zone for the purpose of "roads" was permissible with the consent of the consent authority.

12 However, cl 2.5 of LEP 2009 made provision for additional uses on land identified in Sch 1 of that instrument. Clause 2.5 was expressed to have effect "despite anything to the contrary in the Land Use Table or other provision of this Plan." Clause 3 of Sch 1 identified Lot 2 and provided that development for the purpose of a resource recovery facility was permissible with consent on that land. The Schedule did not identify Lots 41 and 42 as being land on which the additional use of a resource recovery facility was permissible with consent.

13 LEP 2009 commenced when published in the Gazette in February 2010. The Applicant's development application had been lodged with the Council on 17 December 2009. As a consequence, cl 1.8A of LEP 2009 was engaged. That clause required that the development application be determined "as if this Plan had not commenced", being an application that had not been finally determined before the date on which LEP 2009 commenced.

14 The operative local environmental planning instrument immediately before the commencement of LEP 2009 was Wollongong Local Environmental Plan 1990 (LEP 1990). Under that instrument, all of Lots 2, 41 and 42 were zoned 7(b) Environmental Protection Conservation Zone. The land use table for land so zoned did not nominate either "industries" or "resource recovery facilities" as purposes of development that were permissible with consent. Other than nominated purposes of land use, all other development was prohibited.

15 However, like cl 2.5A of LEP 2009, cl 39 of LEP 1990 made provision for "additional development". Relevantly, it provided:

"Despite the other provisions of this Plan, a person may, with the consent of the Council, carry out development on land referred to in Column 1 of Schedule 2 for a purpose specified in Column 2 shown opposite that land, subject to any requirements or limitations specified in Column 3 shown opposite that land being met."

Column 1 of Sch 2 referred to Lot 2 while Column 2 of that Schedule specified a "resource recovery facility (recycling facility)" as the purpose of development on Lot 2. No "requirements or limitations" in respect of development of that kind were nominated in Column 3.

16 The provisions of these planning instruments had the following consequence for the determination of the Applicant's development application. LEP 1990 was the controlling instrument for development proposed on Lot 2 while LEP 2009 pertained to development on Lots 41 and 42. As a consequence, the use of Lot 2 for the purpose of a resource recovery facility was permissible with consent while that use was prohibited on Lots 41 and 42. However, use of Lots 41 and 42 for the purpose of a road was permissible with consent.

17 The final matter to be noticed as a consequence of the provisions of both the EPA Act and the relevant local environmental plans relates to the nature of the development application made by the Applicant. As a "resource recovery facility" the development proposed fell within the description of "waste management facilities or works" in cl 32 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 (NSW). It was therefore "designated development": cl 4 of that Regulation. As designated development, it was development to which the then provisions of cl 13B(1)(e) of State Environmental Planning Policy (Major Development) 2005 applied. By cl 13F of that Policy, the JRPP was able to exercise the functions of the Council to determine the application.

The s 97 appeal to the Court

18 By its application Class 1 commencing the appeal under s 97 of the EPA Act, the Applicant joined both the Council and the JRPP as Respondents. In accordance with the Court's practice requirements, the JRPP filed its Statement of Facts and Contentions, identifying in its contentions the grounds upon which it claimed that the development application should be refused. Those contentions included a claim that the use of the access road through Lots 41 and 42 was prohibited because development on all or any part of those Lots for the purpose of a resource recovery facility was prohibited by the relevant planning instrument. It was also contended by the JRPP that truck access via the right of way through Lots 41 and 42 from Five Islands Road was unsatisfactory on traffic grounds.

19 The JRPP retained expert witnesses for the purpose of the appeal. The statements of evidence or reports of those witnesses were served and joint conferences held with their counterpart experts retained by the Applicant. Expert joint reports were prepared as a consequence of those conferences.

20 As part of the Court supervised case preparation, the Council had filed its Statement of Facts but advanced no contentions in opposition to the grant of development consent. As a consequence, when the matter was fixed for hearing, it was anticipated that the only active protagonists before the Court would be the Applicant and the JRPP.

21 When the proceedings in this Court were commenced in June 2011, the functions of the Council were being exercised by an administrator appointed under Div 6, Pt 2 of Ch 9 of the Local Government Act 1993 (NSW). However, the term of the administrator came to an end in September 2011 when local government elections were held and new Councillors elected to the Council. Following that election, the elected Council resolved to engage in further community consultation concerning the Applicant's development application. As a consequence of this process, on 31 October 2011 the Council resolved to take an active role in the hearing of the s 97 appeal and in so doing to oppose the grant of development consent. It is accepted that shortly thereafter both the Applicant and the JRPP were advised by the Council's solicitor of the position to be taken by the Council when the appeal was heard.

22 The hearing of the appeal commenced on 7 November 2011 with a site inspection and on-site hearing of local lay evidence, essentially from objectors to the application. The Council was represented on that day by counsel and his instructing solicitor. The JRPP was separately represented by both senior counsel and his instructing solicitors. The Applicant had a similar level of legal representation.

23 The second day of hearing took place in court in Sydney. At the commencement of hearing on that day, counsel for the Council announced "on the record" that the Council opposed the grant of development consent and sought to file not only a copy of the Council's resolution of 31 October 2011 but also an Amended Statement of Facts and Contentions. The contentions adopted those stated by the JRPP in its equivalent document. The Council, through its counsel, also stated that it did not propose to adduce evidence additional to that to be tendered by the JRPP and proposed to rely upon the expert evidence to be called by the JRPP. Consistent with the terms of the Council's resolution of 31 October, the Council's counsel further indicated that he proposed to cross-examine witnesses called and to make submissions at the conclusion of the hearing although in so doing would only supplement, as thought necessary, both cross-examination and submissions following the lead taken in both respects by senior counsel appearing on behalf of the JRPP.

24 While the Applicant did not oppose the tender of the Council's resolution of 31 October and its Amended Statement of Facts and Contentions, it opposed the Council taking an active role in the proceedings. The Applicant contended that to allow the Council to take that position was "prejudicial" to it.

25 The Commissioner rejected the Applicant's claim of prejudice. He allowed the Council's documents to be tendered and permitted its active participation in the hearing, essentially on the basis that it was entitled to do so as a party and that it was not intending to raise any issue or adduce any evidence additional to that upon which the other parties had prepared for hearing.

26 I have recited these matters in some detail as the circumstances in which the Council came to participate in the hearing before the Commissioner are at the heart of the Applicant's second ground of appeal. Although not directly challenging the Commissioner's decision to allow the Council's active participation, as will be seen, the Applicant contends that the conduct of the Council in belatedly entering the contest did not accord with a requirement that it act as "a model litigant".

27 In the appeal before me, the JRPP filed a submitting appearance. It was the Council who was the active Respondent in this appeal.

The Commissioner's judgment

28 At the outset of his judgment, the Commissioner described the site, its environs and the development proposed by the Applicant. He identified the manner in which Lot 2 had first been used as a quarry and more recently by the Council. The relevant planning controls were identified as were the circumstances in which the Council came to be an active party in the proceedings. The contentions as contained in the Statement of Contentions filed by the JRPP were recited. They included issues that the Commissioner described as "the permissibility of the proposed development" and "inadequate traffic access". Each of the issues identified by the Commissioner was separately addressed. Those two issues that I have specifically identified from the Statement of Contentions were addressed first in the Commissioner's judgment. Having decided each of these issues adversely to the Applicant, the Commissioner concluded at [61] that the Applicant's development application should be refused, with the consequence that the remaining issues identified by the JRPP were addressed but briefly.

29 Consideration of what was described as the "permissibility" issue commenced at [26]. The issue was said to arise "from the proposed access to Lot 2". The Commissioner records [at 27] that there was agreement among the parties that development for the purpose of a resource recovery facility was prohibited on Lots 41 and 42. Although reference is made in that context to Sch 2 of LEP 1990, to the extent that Lots 41 and 42 were not identified as land to which the additional use of resource recovery facility applied, nothing turns on that reference rather than LEP 2009. As I have earlier indicated, use for that purpose on Lots 41 and 42 remains prohibited under LEP 2009, as the additional use of land for the purpose of a resource recovery facility did not extend to those Lots under Sch 1 of the latter LEP.

30 The critical finding of the Commissioner is at [35] where he states:

"35 In this case, I have little trouble in concluding that the purpose is for a resource recovery facility. The nature of the access over Lot 41 and 42 is to serve Lot 2 for the purposes of a resource recovery facility. The use of Lots 41 and 42 is to provide access to the resource recovery facility. The end to which part Lot 41 and part Lot 42 is to be put is not a road. In the words used in Chamwell (at 38), the resource recovery facility "constitutes one integrated and indivisible business or activity", and the separate characterisation of the access as a road is not appropriate in these circumstances. It follows that, as the access is part of the purpose of a resource recovery facility and this use is prohibited on Lots 41 and 42 (as it is not included in Sch 2), there is no permissible access to Lot 2, and as such, development consent must be refused because of the unsuitability of the site for the purposes of a resource recovery facility."

31 The Commissioner clearly recognised that Lots 41 and 42 were not lands identified in the development application as being part of it. Nonetheless, he recognised (and the Applicant did not contest) that it was appropriate to consider the permissibility of that access, not only because it was integral to the carrying out of the development but because conditions recommended by the traffic engineers, should consent be granted, required upgrading of the present road running through those Lots. Any work on that road would constitute development for which consent was required. Thus the Commissioner said at [37]:

"37 I also note that a future development application would be required for the access over Lots 41 and 42, contrary to the submission of Mr Tomasetti, because of the agreed evidence of the traffic engineers requiring the upgrade of the existing access to provide passing bays for trucks travelling in opposite directions along the access way."

32 The Commissioner then turned to consider the issue of traffic safety directed to truck movements at the intersection of Five Islands Road with the access road passing through Lots 41 and 42. Expert evidence directed to that issue was led from Mr G Pindar, who was retained by the Applicant, and from Mr T Rogers who was retained by the JRPP. The Commissioner recorded (at [38]) that in a joint report prepared by those experts, they identified "shortcomings" in truck access at the intersection. Mr Pindar's evidence is recorded as indicating that "any problems regarding access can be addressed through the proposed Truck Management Plan (the TMP) and a Driver Code of Conduct (DCC) ... ".

33 The competing evidence of Mr Pindar and Mr Rogers is discussed by the Commissioner not only as to the safety of truck movements approaching the intersection but also as to the practical reality of truck drivers adhering to an alternative route to the intersection proposed in the TMP. That alternative route was proposed because it would allow a movement into and out of the access road which both experts accepted as being safe. However, Mr Rogers is recorded in the judgment as indicating that the requirements in the TMP and DCC "are not feasible or practical" (at [38]).

34 Ultimately, the Commissioner preferred the evidence of Mr Rogers (at [50]). He gave a number of reasons for expressing that preference. They included an acknowledgement by Mr Pindar in the course of his evidence that if the TMP was not successful, presumably in controlling the route followed by truck drivers in approaching the intersection, there were potential safety implications. In that context, the Commissioner said at [52]:

"52 Second, the right turn movement from Springhill Road and then into the site access was seen, at best as an unsafe movement by Mr Pindar, Mr Rogers and the Roads and Traffic Authority (RTA) in their correspondence with the council. Mr Pindar expressed concerns over the potential safety implications if the TPM [sic] was not successful."

35 The safety of truck movements at the Five Islands Road intersection was, as the Commissioner indicated, related to the likely number of truck movements associated with the proposed use of Lot 2. So also was the record of traffic accidents, a matter to which Mr Pindar referred as favouring the Applicant's position. On the topics of traffic volumes and accident history, the Commissioner said at [54]-[55]:

54 While it could not be said that Five Islands Road has a constant flow of traffic, it nonetheless has relatively short periods when there is no traffic to allow an unencumbered movement from Five Islands Road into the site. I note Mr Rogers unchallenged evidence that Five Islands Road has high traffic flows, between 600 and 500 vehicles in the weekday morning and afternoon peaks, and this is particularly a concern when combined with a 80 kilometre speed zone near the entrance to the site.

55 Third, I do not accept the conclusions of Mr Pindar that the absence of any poor accident history near the site is a sound basis for supporting the proposal. In my understanding, there was no conclusive evidence to indicate the extent of truck movements to and from the site during the time that the council has operated from the site. Any reliance on the 1995 consent that allows up to 400 vehicles per day must be considered to be unreliable in the absence of any specific traffic movement surveys."

The observations in [55] are identified by the Applicant as being relevant to its second ground of appeal, as it identifies an aspect of the evidence which, so it is contended, ought to have been addressed by the Council in volunteering evidence of truck movements by its vehicles in carrying out development authorised by the 1995 development consent that the Council had granted to itself. That contention will be considered further when I address the second ground of appeal.

36 In all, the Commissioner advanced five reasons for preferring the evidence of Mr Rogers over the conclusion expressed by Mr Pindar in his evidence. The Commissioner's conclusion is expressed at [58]:

"58 For the reasons mentioned in the preceding paragraphs, I agree with the expert evidence that the right turn movement from Springhill Road into Five Islands Road, and the weaving manoeuvre into the site, is potentially unsafe and dangerous, and is not satisfactorily addressed by the TPM, although I accept the later [sic] was not a conclusion reached by Mr Pindar."

The Commissioner then states that the conclusion so reached was a sufficient reason to refuse the Applicant's development application.

37 Having concluded that the use of the access road through Lots 41 and 42 constituted development for the purpose of a resource recovery facility which was prohibited under either relevant LEP and that, in any event, truck access to the site from Five Islands Road was "potentially unsafe and dangerous", the Commissioner stated that his determination in respect of those two grounds provided "substantive reasons" as to why the development application should be refused (at [61]). Nonetheless, he proceeded to discuss the other issues that had been agitated by the parties before proceeding to order that the appeal be dismissed. Having regard to the basis upon which the appeal before me was argued, it is unnecessary to recite the manner in which the Commissioner addressed issues other than those that I have identified.

Nature of the appeal under s 56A of the Court Act

38 The basis upon which the appeal was argued by the Applicant renders it necessary to make some preliminary observations as to the nature of its appeal. As I have previously recorded, the appeal available under s 56A(1) of the Court Act is "against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner". The subsection requires that there be an identified decision on a question of law. That decision may be explicit or implicit. The question must be one raised and determined by the Commissioner (Goodwin v Commissioner of Police [2010] NSWCA 239 at [10]). It is the decision of the Commissioner and not the appeal that must be "on a question of law" (ISPT Pty Ltd v Valuer-General [2009] NSWCA 31; 165 LGERA 25 at [3]; Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; 74 NSWLR 523 at [59]). So understood, it is necessary that the legal error in the decision be identified with some precision (Lambert at [70]). Neither ground of appeal articulated by the Applicant would appear to accord with this latter requirement.

39 The manner in which an appeal under s 56A(1) is circumscribed has two consequences of present relevance. First, the limited basis for appeal imposed by the subsection is jurisdictional. Second, the subsection both prevents the Court, on appeal, from reviewing the decision of a Commissioner on errors of fact and also prevents it from making findings of fact for itself (Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [34]). As the Council submitted, this has a further consequence, identified by Handley AJA in Brennan v NSW Land and Housing Corporation [2011] NSWCA 298; 83 NSWLR 23 where his Honour said at [127]:

"If the appellate court cannot make findings of fact for that purpose [determining whether there has been legal error] it cannot receive additional evidence for that purpose."

Ground 1: Characterisation of use of Lots 41 and 42

40 As my earlier reference to the applicable planning instrument indicates, development for the purpose of a resource recovery facility was permissible on Lot 2. However, development for that same purpose on Lots 41 and 42 was prohibited. That position was uncontroversial as is recorded in the Commissioner's judgment at [27].

41 My earlier description of the development proposal indicates that the only means of access to Lot 2 proposed in the Applicant's development application was along the existing private road through Lots 41 and 42. Although those Lots were not identified as the land that was the subject of the development application, it was accepted that the proper characterisation of that access road for land use planning was necessary. A determination to consent to development on Lot 2 served no purpose if the means of access identified by the Applicant could not be so utilised as a lawful form of land use.

42 The critical finding of the Commissioner is at [35] of his judgment, the content of which I have earlier set out in full. The essence of his determination includes, as the Applicant contends, that:

(a) access over Lots 41 and 42 is to serve Lot 2 for the purpose of a resource recovery facility;

(b) the use of those Lots was to provide access to the resource recovery facility;

(c) the end to which part of Lots 41 and 42 were to be put is not a road;

(d) the resource recovery facility "constitutes one integrated and indivisible business or activity";

(e) the separate characterisation of access as "a road" is not appropriate in the circumstances.

43 The Applicant submits that this determination is wrong. It is a determination involving a question of law because there was "a misapplication of the facts to the relevant law". The decision of the High Court in Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 per Mason J at 7 is cited for that proposition.

44 It is the Applicant's case that the Commissioner should have found that the purpose of use of the access across Lots 41 and 42 was as a road. The argument has these steps:

(a) use of land for the purpose of a road was permissible in the E3 Zone under LEP 2009;

(b) the access road was formed as a sealed carriageway and had served the purpose providing access "for many years";

(c) the access provided was not only to Lot 2 but also as access to a sportsfield and other industrial uses;

 

(d) at a general level and in a commonsense and practical way, that is sufficient to include the individual uses (Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 at [36] and [45]), the purpose of the access way being properly identified as a road (Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202);

(e) the function of the road is to permit land to be used for the purpose of the passing and re-passing of people and vehicles to adjoining land; that function and use of the road cannot "in any practical or actual sense", change with the destination of the vehicles passing along it.

45 I will turn to consider the legal contentions shortly. However, in articulating what the Commissioner "should have found", assuming for the present that to be a relevant contention in an appeal under s 56A, there are difficulties in accepting the findings for which the Applicant contends. In contending that the road had existed for many years and provided access to a sportsfield and other industrial uses, the Applicant makes reference to facts that, in terms, were not found by the Commissioner. He found that the existing road would need to be upgraded to accommodate trucks from the proposed facility (at [37]). He made no finding that the access road had been used to provide access for other purposes or that it could continue to be so used. No ground of appeal challenges the absence of any such findings. As the Council submits, the assertion by the Applicant of these facts invites fact finding by the Court on appeal, contrary to authority that I have earlier cited. The Applicant cannot rely upon those facts to assert error of a kind to which s 56A(1) of the Court Act is directed.

46 The summary of findings that the Applicant submits should have been made by the Commissioner suggests to me that its complaint is not so much directed to error of law but rather to disagree with the conclusion expressed by the Commissioner by reference to the facts found by him and, arguably, by asserting further facts that did not found the decision. Nonetheless, the Applicant seeks to sustain its appeal on this ground by asserting that characterisation of development involves a mixed question of fact and law as a consequence of which it is a question of law for the purpose of s 56A(1).

47 I do not accept that characterisation, involving a mixed question of fact and law, necessarily gives rise to a determination on a question of law within the meaning of s 56A(1). As the Council submits, most issues involve a combination of facts and law but that circumstance does not, of itself, convert a decision on a question of fact into one of law. No authority cited by the Applicant, when properly analysed, supports the proposition that it makes in this regard.

48 Where the application of a particular legal standard involves a mixture of both fact and law, a question of law alone arises if, on the facts found, only one conclusion is open (Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [27]). If, however, it was open to the Commissioner to characterise the proposed use of Lots 41 and 42 on the basis of facts addressed by him, then the constraints imposed by s 56A(1) on appellate fact finding operate to proscribe appellate intervention. As Kirby J observed in Vetter at [75], constraints of the kind imposed by s 56A(1):

" ... do not warrant the appellate court's simply substituting its own view of the facts and calling the substitution a correction of an erroneous statutory construction. The primacy accorded to the Compensation Court's factual decisions, by limiting appeals from its awards, relevantly, to the establishment of a grievance in point of law, must be respected so long as what is involved is a finding of fact. The giving of meaning to straightforward statutory language, according to the facts as found, is such a finding".

49 His Honour continued at [77]:

"Usually, a view of the facts taken by the primary decision-maker will not amount to an error of law. It will only do so if there is no evidence to support the conclusion, if the conclusion itself or the reasoning offered to support it betray a mistaken view of the applicable law, or if no reasonable decision-maker could have come to that view of the facts".

50 In the present case, the Commissioner correctly directed himself to the legal test to be applied when determining the issue of characterisation of the access road across Lots 41 and 42. He does so in [32], citing the judgment of Preston CJ in Chamwell at [27]-[28], [33]-[36] and [45]. Having extracted the principles articulated by the Chief Judge, the Commissioner correctly summarised those principles at [34]:

"The general thrust of the findings in Chamwell is that the characterisation must focus on the purpose of the land [sic]. This must be done at a level of generality and in a common sense and practical way that is sufficient to include the individual uses that make up the purpose. While there may be a number of different uses, these different uses may still serve the same purpose."

51 In light of that summary, the Commissioner proceeded to make the findings in [35] earlier quoted by me. However, additional findings recorded by him are relevant to the decision he made on this issue. He recorded at [26] that access was proposed over Lots 41 and 42, with Lot 42 being owned by the Council and forming part of the land proposed to be leased by it to the Applicant for development on Lot 2. He had earlier recorded at [2] that the development proposal for Lot 2 relied upon the private road for access to Five Islands Road. He further noted at [37] that to enable the access across Lots 41 and 42 to be used for the purpose of the proposed facility, upgrading would be needed to provide passing bays for trucks travelling in opposite directions. This had the consequence that a further development application would be required and consent granted before that upgrading could be undertaken.

 

52 Based upon all these findings, he concluded that as access was part of the purpose of the facility, the use of Lots 41 and 42 would be comprehended by that purpose and, as a consequence, prohibited in the E3 Zone. The development application did not therefore propose permissible access to Lot 2, with the consequence that the site was unsuitable for the resource recovery facility proposed [35].

53 There are two elements of the factual findings that the Commissioner made to which reference should be made. First, there are the primary facts that are found, essentially related to the physical aspects of the relevant Lots and the proposed facility, particularly the movement of trucks associated with the operation of that facility. Second, there is an evaluative judgment called for by the stated legal criterion for determining characterisation. As the Council submitted, matters of degree or an evaluative judgment are factual in nature. The determination by the Commissioner that the use of the access road was to "serve Lot 2 for the purposes of a resource recovery facility" was a determination able to be made without committing an error of law (Vetter at [24]-[27]). Where broad evaluative judgments are to be made according to the facts found, "[c]are must be taken not to allow disagreement with an outcome ... to be transformed into an inference, that despite accurately and correctly expressing the legal test, and identifying the facts, the [Commissioner] failed to apply the test as identified" (Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 at [204]).

54 The principal cases upon which the Applicant relied to sustain its case that a relevant question of law was identified were Hope v Bathurst City Council and Argyropoulos v Canterbury Municipal Council. By reference to Hope, reliance was placed upon the oft quoted statement of Mason J (at 7) to the effect that many authorities could be found "to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law." However, as was indicated by the judgments in Vetter, that statement is qualified when one reads the judgment of Mason J as a whole. I have earlier referred to the observations of Kirby J directed to the dichotomy between findings of fact and decisions directed to questions of law only. In directing attention to the judgment of Mason J in Hope, the plurality in Vetter observed at [27] that his Honour's judgment should be understood as indicating that a question of law "exclusively arises", as it must in the present case, "if on the facts found only one conclusion is open" (Hope at 9). That is not the present case.

55 The Applicant submitted that the Commissioner erred by not giving effect to the permissible use of land for a road in the E3 Zone of LEP 2009. This was required, so it was submitted, in accordance with the decision of Cripps J (as his Honour then was) in Argyropoulos.

56 In Argyropoulos the land owned by the applicant was a battle-axe lot. The access handle was within a residential zone while the "head" or primary area of the allotment was within a light industrial zone. The applicant sought development consent to use the Lot for a light industrial purpose. Use of the access handle within the residential zone for a light industrial purpose was an innominate prohibited use in that it did not fall within any of the nominated categories of development that were permitted or permissible with consent. Use of land for the purpose of a road within the residential zone was permissible with consent. Cripps J determined that development of the land was permissible with consent. In particular, his Honour considered that the use of the access handle, although confined to vehicles resorting to the site as a component of the industrial user, was use for a road.

57 The structure of the land use table in the planning instrument being considered in Argyropoulos clearly played an important role in the determination that was made. Relevantly, the fact that use of land as a road was nominated as a permissible use in the residential zone, while the prohibited industrial use was innominate in that zone assumed significance. His Honour stated (at 207) that the innominate prohibited light industrial use did not exclude "in the present case, the nominate permissible use". He continued in the same passage of the judgment:

"The use of the handle for a 'road' which is a nominate, permissive use under the relevant residential zoning does not become an innominate, prohibited use because the start and/or destination of vehicles passing over the road is light industrial land."

In so determining, his Honour sought to apply the reasoning of Sugarman J in Scott's Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 at 194-195 where, construing the relevant planning instrument, the latter judge had determined that a prohibited use did not extend to use of a character that was permissible and clearly severable from the prohibited use.

58 Having identified the need to construe the planning instrument in order to determine whether use of the access handle was permissible, Cripps J (at 208) addressed that issue by considering whether the nexus between the road use and the innominate prohibited use was sufficiently close such that the two uses were not separate. Not only did such an approach seem to address the issue by reference to function but it was an approach that required a determination of fact.

59 As is obvious, the determination of the issue being considered in Argyropoulos necessitated an exercise of characterisation of land use within each of the zones governing that use. However, that exercise does not appear to have been undertaken by reference to purpose. The paradigm for characterisation by reference to purpose where two or more uses are involved is found in the seminal judgment of Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161. It is a decision that is not cited in Argyropoulos. The approach to categorisation by reference to purpose as articulated by Glass JA in Foodbarn was cited with approval in Lizzio v Ryde Municipal Council [1983] HCA 22; 155 CLR 211 at [217]. As Gibbs CJ observed in that case, the determination of purpose where two or more uses are involved "is one of fact and degree".

 

60 In short, the decision in Argyropoulos does not assist the Applicant. It is, with respect, doubtful that the correct test for categorising development that involves two or more uses is articulated in that case. However, even if a function test is imposed, as appears to have been done in that case, requiring a determination of nexus between or among uses in order to categorise development, is a determination of fact. As such, it is not a determination or decision that is susceptible to appeal under s 56A.

61 There is a further matter to be noticed relevant to this issue in the present case. Unlike the position that pertained in Argyropoulos, the prohibited use of Lots 41 and 42 for the purpose of a resource recovery facility does not fall within a category of development that is innominate. The term "industry" is relevantly defined in the Dictionary to LEP 2009 to mean "general industry", "heavy industry", and "light industry". All three of those latter terms are defined by reference to a building or place that is used for the carrying out of "an industrial activity". The term "industrial activity" is relevantly defined in the Dictionary to mean:

" ... altering ... dismantling, transforming, processing, recycling, adapting ... any goods ... products or articles for commercial purposes, and includes any storage or transportation associated with any such activity." (Emphasis added.)

62 There can be no doubt that the use of land for the purpose of a resource recovery facility in the manner described at [7] of the Commissioner's judgment is comprehended by the definition of "industrial activity". As such, the nominate prohibited use on Lots 41 and 42 includes associated transportation. That circumstance militates against transportation over those Lots that are associated with the industrial activity on Lot 2 being considered as a severable or separate use for the purpose of a road, assuming the reasoning in Argyropoulos is to be applied.

63 Related to its reliance upon the decision in Argyropoulos, the Applicant submits that the Commissioner erred when he characterised the use of Lots 41 and 42 by reference to the use of Lot 2. According to the submission, this involved a failure to consider the present and permissible use of part of Lots 41 and 42 as a road.

64 That submission, so it seems to me, fails to take into account the relevant provisions of LEP 2009. By cl 2.3(3) it is provided that reference in the Land Use Table "to a type of building or other thing is a reference to development for the purposes of that type of building or other thing" (emphasis added). Further, while the Land Use Table for the E3 Zone nominates "roads" as being permissible with consent, it also nominates "industries" as a prohibited form of land use. Applying these provisions to the development being assessed necessitated consideration of both forms of land use in order to determine whether they were, in truth, independent purposes or, in the language of Foodbarn one subserved the other so that the dominant purpose became the purpose relevant to be considered in accordance with the Land Use Table.

65 It was the exercise mandated by the provisions of LEP 2009 that the Commissioner undertook. The fact that the access road across Lots 41 and 42 had been used in the past for access to Lot 2 was irrelevant to that exercise. The use of that road across those Lots was clearly identified by the Applicant as being integral to its use of Lot 2, in that it was the only means of access identified by it in its development application. It therefore became necessary to consider whether that access was lawful, a consideration that was in turn informed by the land use controls applicable to the land through which the road passed. This, in turn, necessitated consideration of the purpose for which the access road was used. The facts as found (rather than those for which the Applicant now wishes to contend) identify the use of the road associated only with the use of Lot 2.

66 By its submissions in reply, the Applicant contends that if the finding of the Commissioner is correct, then logically Five Islands Road is used for the purpose of a resource recovery facility, as trucks coming to and leaving from Lot 2 will also be required to use that road. That submission cannot be sustained. As a public road serving as a thoroughfare for pedestrians and traffic resorting to and leaving from multiple destinations for unspecified purposes, its use is very obviously to be distinguished from the use intended to be made by the access road across Lots 41 and 42 related solely to the activity being conducted on Lot 2.

67 The Applicant also submitted that the access road should be characterised as a road because Lot 2 was specifically identified in Sch 1 to LEP 2009 as a site upon which a resource recovery facility was permissible with development consent. The consequence of the Commissioner's decision, so it is submitted, is that the specific identification of Lot 2 for this purpose would be defeated because a new road would be required from Jarvie Road, necessitating that site traffic pass through a residential district. The Applicant contends that effect can only be given to the "spot rezoning" if the use of the road is categorised as a road purpose.

68 I do not accept this submission. Had it been the intention to maintain the existing access road as the only permissible access to a resource recovery facility on Lot 2, it would have been a simple matter to include reference to the road across Lots 41 and 42 in Sch 1 to the LEP.

69 Moreover, Lot 2 does have street frontage to Jarvie Road (judgment at [26]). As Lot 2 is identified in Sch 1 as being the Lot to which the permissible activity of a resource recovery facility applies, no legal impediment would be encountered in providing access from the Jarvie Road frontage to the quarry area within Lot 2. Whether access involving the use of Jarvie Road is appropriate would require merit consideration. In this context it should be noted that the permissible uses in the E3 Zone include "community facilities", "dwelling houses", "home-based childcare" and "secondary dwellings". Given those forms of permissible development, I would not construe LEP 2009 as impliedly requiring maintenance of the existing access road as a preferred form of transport route over access using the existing public road to which Lot 2 has frontage because of differing amenity impacts between the two areas.

70 In summary, I do not find any decision of the Commissioner on a question of law directed to permissibility that engages the provisions of s 56A(1) of the Court Act. His decision to categorise the use of the access road across Lots 41 and 42 as serving the end of enabling the resource recovery facility to be carried out has been undertaken in a "commonsense" and "practical" way (Chamwell at [35] and [45]) such that it was a decision reasonably open to be made on the facts found.

71 Even if, contrary to the view earlier expressed, characterisation of development under LEP 2009 does give rise to a question of law, no error on the part of the Commissioner in undertaking that task has been demonstrated. The correct test has been identified and the facts found properly applied to that test.

72 I reject the first ground of appeal.

Ground 2: Miscarriage of justice

73 As I have earlier recorded when summarising the Commissioner's judgment, he accepted the expert evidence that the potentially unsafe and dangerous manoeuvre required by trucks entering the access road to Lot 2 from Five Islands Road was not "satisfactorily addressed by the TPM" [58] with the consequence that it was, in itself, "a sufficient reason to refuse the development application" [59]. It is that determination which underlies this ground of appeal.

74 The manner in which this ground was argued by the Applicant in its oral submissions did not entirely accord with the manner in which it was argued in its written submissions. An additional basis upon which this ground could be sustained was articulated orally as being that the Commissioner declined to direct the Council to produce unspecified documents when requested to do so by the Applicant. I will address that contention later in these reasons. It was a contention to which the Council was able to respond in the course of its oral submissions.

75 The Applicant contends that the Commissioner's decision miscarried "by reason of the Council's failure to adhere to its obligations as a model litigant." In so contending, the Applicant does not identify a decision of the Commissioner on a question of law (cf s 56A(1)). As the Council submits, the failure so to do would appear to deny the Applicant an entitlement to rely upon this ground of appeal.

76 The essential facts upon which the Applicant relied for the purpose of this submission seemed to be the following:

(a) the Council owned both Lot 2 and Lot 42;

(b) having granted development consent in 1957, it was aware of the use of Lot 2 as a quarry, vehicular access to which was gained via the access road across Lots 41 and 42;

(c) since about 1995, the Council itself had used Lot 2 pursuant to the development consent it had then granted in;

(d) in the course of using Lot 2 in accordance with that consent, truck and other vehicular access to and egress from that Lot had been via the access road across Lots 41 and 42, necessitating use of the intersection of that road with Five Islands Road; and

(e) the access road had been used in this manner by Council trucks for at least the past 15 years.

77 The Applicant then directs attention to the judgment of the Commissioner addressing the evidence by the traffic experts concerning the safety of truck movements utilising the Five Islands Road/access road intersection. The Commissioner recorded at [45] the evidence of Mr Pindar that the accident history for the intersection did not support the contention of Mr Rogers "that the movement to gain access to the site from Springhill Road is a dangerous manoeuvre." The submission also focuses upon the determination of the Commissioner at [55] in which the absence of a poor accident history is rejected as "a sound basis for supporting the proposal", indicating that "there was no conclusive evidence to indicate the extent of truck movements to and from the site during the time that the council [had] operated from the site." These are matters that, according to the submission, might have been considered differently had the Council acted as a "model litigant".

78 The next step in the Applicant's argument is to contend that at the hearing before the Commissioner the Council should neither have submitted that the use of the access road across Lots 41 and 42 was a prohibited use under LEP 2009 nor that trucks turning from Springhill Road into Five Islands Road and then onto the access road across Lots 41 and 42 would create an unacceptable safety issue. That submission was elaborated by a number of contentions that may be summarised as follows:

(a) Lot 2 had been "spot rezoned" to permit a resource recovery facility "on the basis that the only access to the site would be over the road on lot 41 and lot 42";

(b) the Applicant's development application had been assessed both by Council's town planning staff and also by its traffic engineering staff who were "satisfied that the proposed traffic movement would be lawfully permissible and otherwise safe";

(c) the proposed traffic movements, generally similar to those undertaken by or on behalf of Council, were "proven to be safe" over the years of use of Lot 2 by the Council;

(d) when it determined to become a contradictor in the hearing before the Commissioner, the Council refrained from "putting relevant evidence within its knowledge and possession before the Court (and the Applicant) to assist the Court to proper findings", that evidence including -

(i) the history of use of Lot 2 by Council trucks;

(ii) that such use had occurred "without observable incident or horrific consequences";

(iii) evidence from the Council traffic engineer assessing that the proposal was considered to be acceptable; and

(iv) the alternate truck route proposed by the Applicant was identified as being acceptable by Council staff;

(e) the Court was misled by the Council in "contending for a false issue, and contending for facts that it knew not to be true without a reasonable basis";

(f) in so doing, the Council failed to act in accordance with its model litigant obligations; and

(g) the failure to put the identified evidence before the Court "disadvantaged the appellant and materially affected the result."

79 Some of the matters asserted by way of fact in the Applicant's contentions are not the subject of any finding by the Commissioner. For reasons earlier stated, they could not therefore be used to found a determination of legal error.

80 However, contrary to the contentions of the Applicant, the essential evidence to which the Applicant refers was before the Commissioner and is reflected in his judgment. This can be illustrated by the following references:

(a) use of Lot 2 by the Council since 1995 is identified at [13]-[15];

(b) the manner in which Lot 2 would be used at each of Stage 1 and Stage 2 of the development that was the subject of the 1995 development consent was identified at [13];

(c) vehicle movements likely to be involved at each of the two stages of development were quoted at [14], including the prospect that upon implementation of Stage 2 of that consent 400 vehicle movements per day were likely to be generated;

(d) reference at [45] to the accident history at the intersection is founded upon evidence before the Commissioner that there was one non-casualty crash in the vicinity of the entrance to the access road on Five Islands Road in the period from 1 April 2006 to 31 March 2011 (Tcpt 172:22-37);

(e) an independent town planning report prepared for a meeting of the JRPP and tendered at the hearing before the Commissioner had recommended the approval of the application subject to conditions (judgment at [19]), that report containing detailed discussion of issues, including traffic issues, under which there is recorded support for the Applicant's development, subject to conditions, by the Council's traffic engineer; and

(f) while not identified in the judgment, a supplementary traffic report prepared for the Applicant and tendered at the hearing stated (Exhibit 102, Tab 2.2, p 4):

"Advice from the current operator of the site [The Council] is that the truck movements are cyclic depending on what projects are occurring at any given time around Wollongong. At some periods there may be several truck movements a day for several days and then nothing for a few days. On average there is approximately 5 to 10 truck movements during a typical peak morning period. In the afternoon peak period there are no movements and trucks normally cease after 3.30/4.00pm. The current operator of the site does not have accurate records of the current truck movements on the site."

These references demonstrate that evidence said by the Applicant to have been withheld by the Council "to assist the Court to proper findings" was, in fact, before the Court and considered by the Commissioner.

81 Despite the availability of the evidence identified, the contention of the Applicant seems to be that the Council was obliged to produce more evidence. The submission appears to be that documents supporting or demonstrating use of Lot 2 by the Council for a period of 15 years, particularly its records directed to truck movements to and from the site during that period ought to have been produced. Failure to produce this evidence, so it is submitted, gave rise to the finding at [55] of the judgment of the absence of "conclusive evidence" with the consequence that the Commissioner was potentially misled into making a wrong finding of fact.

82 I accept the submission made on behalf of the Council that when the finding identified in [55] is read in context, the Commissioner was seeking to rebut an approach to the assessment of traffic impact at the intersection of Five Islands Road and the access road by measuring that impact against an assumed traffic generation of 400 vehicles per day as a consequence of implementing Stage 2 of the 1995 development consent. The Commissioner had recorded at [15] that only Stage 1 of the Consent had been implemented. Traffic generation referable to Stage 2 had never occurred. It was the lack of relevance or "reliability" of the Stage 2 traffic generation for the purpose of assessing the Applicant's development application that was the essential thrust of the Commissioner's observations at [55].

83 Moreover, as I have earlier recorded, evidence of truck or other vehicle movements generated by the Council's use of Lot 2 was before the Court in the form of the supplementary traffic report tendered to the Commissioner. The "advice" from the Council as to truck movements associated with Lot 2 is recorded in that report. No basis is advanced as to why the advice provided to the Applicant's consultant would not have fairly reflected the information available to the Council.

84 Having addressed and found wanting a number of the factual submissions advanced by the Applicant, it is necessary to return to the matters of principle that are said to inform the present ground of appeal. In leaving those factual submissions, I do not overlook the Applicant's tender of documents that I rejected. I will address the rejection of that tender in due course.

85 The overriding contention that there has been a miscarriage of justice does not, in itself, identify any error of law. Rather, the concept states a conclusion that, as the Council submits, "masks the question of law" raised by the outcome that is described as a "miscarriage". In civil law, the concept of miscarriage of justice will generally arise before an appellate Court when, in the proceedings being reviewed, legal error has been demonstrated, evidence has been wrongfully rejected or admitted, or there has been an erroneous exercise of discretion (Balenzuela v De Gail [1959] HCA 1; 101 CLR 226 at 235-237).

86 In the present case no jurisdictional error is advanced. While a ground alleging a denial of procedural fairness was included in the Applicant's summons commencing the appeal, that ground has been withdrawn. It therefore remains necessary to address the contention that the Council was under a legal duty to produce information that had the effect of filling any gaps in the Applicant's evidence and also that it had a duty not to put contentions in support of the evidence adduced at the hearing.

87 The substance of the submission is first a contention that the Council should not have made a submission that the use of the access road across Lots 41 and 42 was prohibited and second a contention that the "duty" of the Council militated against a submission that truck movements at the intersection of Five Islands Road and the access road were potentially unsafe and dangerous. It is convenient to deal with each of those contentions in order.

88 The Applicant contends that the Council should not have made the submissions that it did directed to the permissibility of use of Lots 41 and 42 because it had used the same access road in the course of undertaking its development activities on Lot 2. Whether the Council's use of Lots 41 and 42, having regard to the terms of grant and conditions of the 1995 development consent, was unlawful, as being in breach of the EPA Act, was not explored before the Commissioner. Even if the Council's use of that access road was unlawful, the realisation or recognition that this was the case rendered it appropriate for that unlawfulness to be disclosed and for it to contend that use for a similar purpose was not able to be sanctioned because it contravened the EPA Act: s 76B. There is no principle of law that estops the Council from challenging the validity of its own decisions (Coffs Harbour City Council v Arrawarra Beach Pty Ltd [2006] NSWLEC 365; 148 LGERA 11).

89 It is also to be remembered that the issue as to permissibility of use of Lots 41 and 42 was an issue raised and argued by the JRPP. It was an issue to be determined having regard to a proper analysis of the Applicant's development application, including the environmental impact statement supporting it, together with the relevant planning instruments in the form they took at the time of the hearing. How the fact that the Council had used the access road to Lot 2 pursuant to a consent granted n 1995 was relevant to the determination of this issue was not demonstrated. Nor was it demonstrated by the Applicant that the Commissioner's decision, determining that the use of the access road for the purpose intended by the Applicant was prohibited, resulted in a miscarriage of justice because some unidentified documents may have been held by the Council which provided details of truck use associated with implementation of the 1995 development consent.

90 The observations last made are equally appropriate to the Applicant's second contention directed to traffic safety. The effect of the contention is that although the expert evidence called at the hearing had identified a risk to public safety by reason of the manoeuvre required by truck drivers to enter the site from the surrounding public road system, the Council was obliged either to make submissions against the acceptance of that evidence or, at best, to refrain from making any submission in support of it. The essence of the argument seems to be that traffic generated by the Council's use of Lot 2 had occurred "and was occurring on a regular if not weekly and at times daily basis over many years" without record of any danger.

91 As already stated, the fact that the critical intersections and access road had been used for some years by trucks associated with the Council's use of Lot 2 was in evidence before the Commissioner as was the fact that the Council's traffic engineers supported the proposal. However, the finding at [52] of the Commissioner's judgment makes clear that the Applicant's expert, Mr Pindar, agreed in the evidence advanced by Mr Rogers and by the Roads and Traffic Authority that the traffic movement into the access road from Springhill Road and Five Islands Road was "at best an unsafe movement". Mr Pindar sought to address that unsafe movement by proposing that all truck drivers resorting to the site adhere to the protocol of a TMP, a protocol that Mr Rogers considered to be "not feasible or practical". For reasons stated at [50]-[58], the opinion expressed by Mr Rogers was accepted by the Commissioner. The lack of relevance of what might have occurred under the 1995 development consent is identified and endorsed by the Commissioner at [60].

92 As would be expected the Commissioner relied upon the evidence before him in order to determine the issue, raised by the JRPP and embraced by the Council, that there was a traffic safety issue associated with access to Lot 2 via the existing access road if the Applicant's proposed development was to be implemented. The past use of that access road and the position taken by Council's professional staff directed to its use were known to the Commissioner. No further material that the Council may have held relevant to its past use of Lot 2, could have had any material effect on the Commissioner's determination of the traffic safety issue.

93 The description of the Council as a "model litigant" is said to derive from the observations of Mahoney JA in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537. There, the Respondent council had exercised a power available under statute to sell land for overdue rates. Upon exercise of that power, the council had acquired the land being sold.

94 The plaintiff contended that the exercise of power was invalid and that the land should be reconveyed because the notice required by the statute to be given and published before exercising the power was defective. The contention was sustained at first instance. However, the Court of Appeal, by majority (Reynolds and Hutley JJA), upheld the council's appeal, determining that the defect in the notice was not such as to invalidate its actions in selling the plaintiff's land.

95 Mahoney JA was in the minority. Having identified the notice defect as being minor, his Honour was of the opinion that it was nonetheless significant in determining whether the consequence was one which "a court of conscience" should accept. He then continued (at 558F-559A):

"And, in this regard, it is proper to have in mind that the council is a corporation constituted by statute, and discharging public functions. It has acquired the property by a procedure which was invalid, and it may retain it only if it is to have the unfettered benefit of protection designed primarily for the protection of third parties. It is well settled that there is expected of the Crown the highest standards in dealing with its subjects: see Melbourne Steamship Co Ltd v Moorehead [citation omitted], per Griffith CJ. What might be accepted from others would not be seen as in full accord with the principles of equity and good conscience to be expected in the case of the Crown; see P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [citation omitted]. In my opinion, a standard of conduct not significantly different should be expected of a statutory corporation of the present kind; there being no competing interests, the council should be seen as holding the land subject to the appropriate rights in equity."

96 In P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366, Mahoney J (as his Honour then was) had referred to the duty of the executive branch of government in the conduct of litigation. His Honour there described the duty of the executive as being one "to assist the Court to arrive at the proper and just result."

97 In seeking to articulate the nature of the responsibilities imposed upon "a model litigant", the Applicant relied upon the decision of the Full Court of the Federal Court in Scott v Handley [1999] FCA 404; 58 ALD 373. The second respondent to the appeal in that case was an officer of the Commonwealth. In a joint judgment, the Court described the obligation of officers of the Commonwealth as requiring adherence to "those standards of fair dealing in the conduct of litigation that courts in this country have come to expect". They identify those standards as a current theme in judicial decisions "in relation to the conduct of litigation by all three tiers of government". A number of authorities are cited in support of that proposition, including Logue and Cantarella. Their honours then continue at [45]:

"As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body's obligation of "conscientious compliance with the procedures designed to minimise costs and delay": Kenny's case ... and of assisting 'the court to arrive at the proper and just result" [Cantarella]. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong's case, above, at 166; of not unfairly impairing the other party's capacity to defend itself: Saxon's case ... and of not taking advantage of its own default ... ".

98 Apart from referring to these authorities as a source of obligation, the Applicant also sought to tender and rely upon a document entitled "Model Litigant Policy for Civil Litigation". On its face, it was a document adopted by the New South Wales government and expressly intended to apply to the conduct of litigation in which State agencies of the Crown were parties. It did not purport to apply to councils constituted by reference to the provisions of the Local Government Act 1993. I rejected the tender of that Policy.

99 As the decision in Scott v Handley indicates, whether the "fair dealing standard" has been met must be decided on a case by case basis. In the present case, the obligation imposed was stated in various ways, some of those I have already recorded. It is submitted that there was a duty on the Council "to explain fully and frankly how its staff supported the traffic manoeuvre, how it used the road itself on a very regular basis in the same was as is proposed [sic], yet still maintained that it was unsafe" (Applicant's reply submission at [34]). No authority was cited by the Applicant to support an obligation upon the Council of such broad ambit.

100 Perhaps of greater significance is the fact that no authority was cited by the Applicant to support a contention that a decision determining legal proceedings would be infected with legal error if a party to those proceedings, upon whom model litigant obligations are imposed, fails to act in accordance with those obligations. In an article entitled "What cost to the Crown a failure to act as a model litigant?" (2010) 33 Australian Bar Review 239, the author suggests that in light of observations made in ACCC v Leahy Petroleum Pty Ltd [2007] FCA 1844 at [25] and the fact that none of the model litigant guidelines published by the Commonwealth and the States are given legislative force, "neither the model litigant principles recognised by the courts nor the guidelines issued by various jurisdictions confer responsibility on the courts for monitoring the Crown's compliance with its model litigant obligations ... ". Writing extra-judicially, Pagone J of the Victorian Supreme Court described the term "model litigant" as representing "an ethical, rather than a legal, standard

(Justice G T Pagone, "The Model Litigant and Law Clarification", 17 September 2008, http://www.supremecourt.vic.gov.au/home/contact+us/speeches/speech+-+the+model+litigant+and+law+clarification+%28pdf%29).

101 I would respectfully adopt his Honour's observations. A consideration of the cases to which the Applicant has referred indicates that the obligations imposed upon a model litigant are directed to the manner in which that litigant should behave procedurally rather than directed to the creation of a legal obligation. Certainly, the failure to act in a manner that accords with those obligations may be a factor considered when exercising a discretion available in the proceedings, such as the grant of an adjournment or the order for payment of costs. However, while the existence of those obligations may be a factor, other factors that would inform the exercise of discretion where model litigant obligations do not impinge are generally present.

102 The latter proposition is illustrated in both Mahenthirarasa v State Rail Authority (No 2) [2008] NSWCA 201; 72 NSWLR 273 and Scott v Handley. In Mahenthirarasa the State Rail Authority (SRA) had successfully opposed an applicant's appeal from the Registrar of the Workers Compensation Commission to that Commissions Appeal Panel. The applicant for compensation then appealed to the Supreme Court. His appeal at first instance was unsuccessful but an appeal to the Court of Appeal was successful. As a consequence he sought an order for costs of the proceedings against SRA.

103 The latter order was opposed by SRA, essentially because it had filed a submitting appearance in the Supreme Court, both at first instance and on appeal to the Court of Appeal. The Court of Appeal held that the SRA was liable for the applicant's costs. As the SRA had been successful before the Commission, the Court considered that the SRA was responsible for the position in which the applicant/appellant was placed in prosecuting the Supreme Court proceedings. While acknowledging that the SRA had filed a submitting appearance, it had not made any admission or concession that avoided the need for the appellant to "spend time persuading the Court as to the correctness of his position" [at 13] in circumstances where it had not sought to sustain the basis of its success before the Commission. Indeed, the Court of Appeal had invited the SRA to provide assistance to the Court but the former had declined to do so. These factors seem to reflect the essential matters upon which the decision of the Court of Appeal turned (see particularly [11]-[13]).

104 The reasoning in that case discloses that the role of the SRA as a model litigant was not the basis upon which the order for costs was made. While its position, as such, focused attention upon the procedural steps open to it so as to have avoided some, at least, of the costs occasioned by the successful appellant, a fair reading of the judgment indicates that the decision was not based upon the SRA's obligations as a model litigant. That accords with the analysis of that decision by Davies J in Buzrio Pty Ltd v Consumer, Trader and Tenancy Tribunal (No 3) [2009] NSWSC 1132 at [10]-[12].

105 In Scott v Handley, the applicant was a self-represented litigant. As I have earlier indicated, the respondent was an officer of the Commonwealth. An appeal from the Administrative Appeals Tribunal had been fixed for hearing before a judge of the Federal Court. Directions had been given for the preparation of the matter, including directions as to the filing and service of affidavit evidence. On the day fixed for hearing, the applicant applied for an adjournment on the basis that she was not then ready to proceed as she had not understood that the final hearing was fixed for that day. Once satisfied that the applicant had been correctly informed as to the nature of the hearing that day, the trial judge acceded to the respondent's application that the proceedings be dismissed. However, the respondent did not disclose that only six days prior to the hearing he had served upon the applicant three affidavits with a substantial number of annexures. Those affidavits were served almost three months after the date upon which they were directed to be filed in accordance with pre-trial directions made by the trial judge.

106 On appeal to the Full Court of the Federal Court, the trial judge's orders were set aside on the basis that there had been a miscarriage of justice. In a joint judgment, the Court said at [46]:

"46 In the present instance the second respondent (i) was in a position of obvious advantage in relation to unrepresented litigants; (ii) was significantly in default in complying with procedures designed to secure the fair and orderly preparation of the matter for hearing; (iii) served the affidavits on the appellants at an extremely late date with the consequential likely impairment of their capacity to prepare properly for a final hearing; (iv) did not inform his Honour of the default and of its possible consequences; and (v) took advantage of the inability of the appellants to articulate properly the basis for, and to secure, an adjournment."

While the position of the respondent as a model litigant was discussed by the Court, those factors identified in [46] are the factors that appeared to found the Court's decision. They are factors that would weigh heavily on the exercise of discretion to grant an adjournment even in the case of a respondent who was not subject to model litigant obligations.

107 Factors of the kind considered relevant in Scott v Handley do not arise in the present case. The Council was not in default of compliance with procedures directed to the fair and orderly preparation of the matter for hearing nor did it seek to serve any late evidence or raise issues that were not squarely before the Court and the Applicant prior to commencement of the hearing. Furthermore, there was no question of the Council seeking to take some advantage of the Applicant at the hearing who, at all times, was represented by solicitors and by senior counsel. Although the Applicant was aware some days prior to commencement of the hearing that the Council would actively support the case of the JRPP in opposing the grant of development consent, no application for adjournment was made.

108 The Applicant acknowledges that information of the kind it now claims ought to have been volunteered by the Council, providing details of its use of Lot 2 together with its access to and across Lots 41 and 42, was not sought from the Council prior to the hearing. Notwithstanding the issues raised by the JRPP, the Applicant indicates that it refrained from doing so as it intended to rely upon the absence of opposition by the Council to the grant of development consent as a basis upon which to meet the evidence and foreshadowed submissions of the JRPP. This, so it seems to me, manifests a forensic decision by the Applicant's legal advisors which bears significantly upon its capacity now to complain that material required by it was not made available to it or the Court.

109 Once the Applicant became aware that the Council would support the case of the JRPP, it did not sit idly by. I am informed that in the course of the proceedings it issued some five notices to produce to the Council. The Council submits that it responded to these notices in a "timely fashion". I do not understand the Applicant to contest this contention. As the Respondent submits, if, with hindsight, the Applicant believes that it failed to take some step that was open to be taken to have the material made available, the failure to take that step "cannot be laid at the Council's feet."

110 Related to the matter just discussed is the submission made by the Applicant that the Commissioner erred by not acceding to the Applicant's request "to direct the Council to put the parties and the Court in a position where it was fully appraised of the relevant facts" (Applicant's reply submissions at [43]). The Applicant also contended that the Commissioner "stopped counsel for the Appellant" by indicating that the Commissioner had no power "to require Council to proper disclosure [sic]" (submissions at [45]). These latter submissions must be considered having regard to the context in which the relevant "request" was made.

111 Early on the third day of hearing (referred to in the transcript as the "second day"), counsel for the Council sought to tender an aerial photograph and locational maps of Lot 2 and its environs (Tcpt 93:8). The Applicant objected to the tender of those documents (Tcpt 93:31). In addressing the objection, the Applicant's counsel commenced by taking the Commissioner to the independent town planning report that had been provided to the JRPP and which had been tendered at the hearing. Reference was made to those parts of the report in which use of the access road was considered, particularly the fact that the Council's "traffic division" regarded the use of the access road across Lots 41 and 42 to be satisfactory and, according to the report, the fact that the alternate truck route proposed by the Applicant was acceptable to the Council's engineer. When the Commissioner enquired as to how reference to that material was relevant to the objection to the tender of the aerial photograph and maps, the Applicant's counsel indicated that if allowed to continue he would make those references relevant to the objection. Submissions in support of the objection continued.

112 After completing reference to other passages of the independent report in which traffic "issues" are recorded as having been addressed favourably by staff of the Council, the Applicant's counsel continued (Tcpt 94:38-95:12):

"Commissioner, my concern on behalf of my client is that [counsel for the Council] has been permitted to cross-examine Mr Pindar about traffic safety, particularly in this intersection which is the subject of this latest tender in circumstances where his own client has its own expert officers and indeed internal division to whom this application has been referred as well as was the rezoning application and which department and which officers have given expert advice to the council that the proposal is entirely satisfactory. The council doesn't call any traffic evidence whatsoever but cross-examines Mr Pindar to make good propositions ultimately which are inconsistent with its own professional officers' advice ... I did indicate yesterday that there was unfairness and the unfairness is compounding now because it appears that the council has actual advice from its officers, its expert department on traffic ... . At the very least the council should be under an obligation to produce that material to the court if it's to be allowed to cross-examine, otherwise there is serious unfairness ... ". (Emphasis added.)

113 Following that passage, the Commissioner observed that the matters raised were not directed to the admissibility of the documents sought to be tendered by the Council. Counsel for the Applicant responded by indicating that documents were being tendered "in the face of evidence which the Council knows exists in its department that this route is in fact on expert advice quite satisfactory" (Tcpt 95:18). The response of the Commissioner to the latter proposition was "not according to Mr Pindar" (Tcpt 95:22), indicating that the traffic engineering advice from Council staff did not accord with the evidence given before the Court on the previous day by the Applicant's retained traffic expert. After some brief discussion of Mr Pindar's evidence, it was submitted on behalf of the Applicant that the staff members of the Council who had provided advice to the Council were more familiar with the movement of trucks utilising Lot 2 and the operation of the intersection than was Mr Pindar. At the conclusion of that submission, the transcript records the following (Tcpt 96:8):

"COMMISSIONER: Okay I don't think it goes to the question of whether the document should be tendered but you can make those submissions again if you want."

Thereafter the aerial photograph and maps were admitted as Exhibit 4.

114 Immediately following the admission of that Exhibit the following exchange took place between counsel for the Applicant and the Commissioner (Tcpt 96:15-23):

"TOMASETTI: What I am asking you to do Commissioner is assist us, direct the ...

COMMISSIONER: I can't do that Mr Tomasetti.

TOMASETTI: I say that you can Commissioner, but I've made ...

COMMISSIONER: I've noted your concerns and what you've said. Now here are some plans ... ".

115 The context of this exchange, albeit framed as an objection to the aerial photographs and maps sought to be tendered, was that the Council's right to further participate in the proceedings, including cross-examination of witnesses, should be conditional upon it producing the "actual advice from its officers, its expert department on traffic" (Tcpt 94:50). The substance of that advice was contained in the independent report tendered before the Commissioner and emphasised in the course of the submission then being made. The Council did not challenge the accuracy of the report in recording the advice that had been given by its traffic engineering staff.

116 Relevantly, the only decision then made by the Commissioner was to admit the aerial photograph and maps that had been tendered. That decision is not identified in the Applicant's grounds of appeal as one that is challenged. Importantly, it is not a decision that gives rise to a question of law. The Commissioner was called upon to exercise a discretion to admit evidence in circumstances where he was not bound by the rules of evidence: s 38(2) of the Court Act. As the Council submits, it could not possibly be argued that acceptance of the tender of aerial photographs and maps depicting the site being considered and its environs, was a decision infected by legal error.

117 However, the challenge seems to be predicated upon a decision of the Commissioner to refrain from ordering the Council to produce some document or documents, presumably those to which generic reference was made in the submissions of the Applicant's counsel when objecting to the tender of the aerial photograph and maps. However, the observation of the Commissioner in response to the Applicant's request for a direction to "assist us", immediately following the admission of the tendered documents into evidence, must be considered in context. That context was a submission, occupying some pages of transcript, that the Council should be required to produce the "material" as a condition of its further participation in the proceedings (Tcpt 95:4-6).

118 If the application and response of the Commissioner be understood in that context, that is an application to prevent the Council from participating in the proceedings unless material, generically so described, is first produced to the Applicant or the Court, no error is, to my mind, demonstrated. The Council was a proper and necessary party to the proceedings. To have prevented the Council's participation or further participation in the proceedings from the time the request was made would have been to deny it procedural fairness. No authority is identified and there is none of which I am aware that would deny a party to proceedings the right to participate in those proceedings, subject to compliance with procedural directions giving effect to the overriding purpose expressed in s 56 of the Civil Procedure Act 2005 (NSW). No procedural direction of that kind is identified by the Applicant as founding its submission.

119 The only other way to address the Applicant's present submission is to consider the direction sought by the Applicant divorced from the context in which it was sought. When seeking the direction, the Applicant did not identify the source of power available to the Commissioner to found such a direction. That is an unsatisfactory position. In its submissions before me, the Applicant relied upon s 38(2) of the Court Act as the relevant source of power.

120 I do not accept that submission. When addressing the jurisdiction of the Court in Class 1 proceedings, being the Class of proceedings determined by the Commissioner, s 38(2) enables the Court to "inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits." The subsection says nothing of the power available to order the production of documents: it is directed only to the course that may be followed by the Court in such proceedings, unconstrained by the need to adhere to the rules of evidence. That is what the subsection provides.

121 There were procedures available to the Applicant under both the Uniform Civil Procedure Rules 2005 (NSW) and the Evidence Act 1995 (NSW) by which the production of documents could be obtained. The Applicant did not avail itself of those procedures.

122 The repost of the Applicant to the proposition that procedures were available to compel production of documents that it considered relevant was that it ought not to have been required to resort to such procedures because of the "model litigant" obligation imposed upon the Council. For reasons earlier stated, I do not accept that model litigant obligations extended to require the Council, in the course of the hearing, to volunteer "the material" believed to inform advice, the substance of which was in evidence and was not in contest.

123 Relevantly, even if, contrary to the position that I consider to be correct, the general context of the submissions made in opposing the tender of the aerial photographs and plans is to be ignored, what cannot be ignored is the fact that, in terms, the Commissioner left open to the Applicant the entitlement to renew its application. For its own forensic reasons, the Applicant chose not to do so.

124 In this circumstance, the Applicant cannot complain of legal error in the decision made by the Commissioner to refuse to make the directions sought at that stage of the proceedings. This must be so, not only because of the Applicant's failure to take up the position left open by the Commissioner but also because the decision of the Commissioner involved the exercise of a discretion. No error of law of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 at (505) has been identified in exercising that discretion.

125 For these reasons, no error of law on the part of the Commissioner has been identified by reason of his refusal to direct the Council to produce "the material" sought by the Applicant. Moreover, for reasons earlier expressed none of the bases upon which the Applicant submits that a miscarriage of justice has occurred have been made good. The second ground of appeal is therefore rejected.

Reasons for rejecting the tender of MFI 1 and MFI 2

126 I have earlier stated that I rejected two bundles of documents, marked MFI 1 and MFI 2 respectively, that the Applicant sought to tender on the hearing of the appeal before me. Briefly stated, what follows are my reasons for rejecting the tender of those documents.

127 Upon commencement of the present appeal, the Applicant issued a notice to produce to the Council, seeking documents of the kind that it claims ought to have been provided by the Council without the need for any process requiring it so to do, consistent with its obligations as a model litigant. The Council produced a number of documents in response to that notice.

128 Broadly described, MFI 1 contained a collection of diary records relating to individual truck movements between February 2003 and November 2011 associated with the Council's use of Lot 2. Also included in MFI 1 were documents containing an expression of interest for removal of surplus asphalt millings from Lot 2, together with correspondence concerning a proposed minor works contract at that site. Documents in MFI 2 relate to the agreement for lease between the Applicant and the Council and its termination. Also included in that bundle was an affidavit prepared by the Applicant's solicitor.

129 The Applicant stated that it did not seek to tender the documents "to revisit a single finding of fact by the Commissioner". Rather, the purpose of the tender was to demonstrate that, had the documents been available to the Commissioner, it was "clearly arguable that a different result would have followed". An entitlement to tender the documents on this basis was said to be demonstrated by the decision of the High Court in Commonwealth Bank of Australia v Quade [1991] HCA 61; 178 CLR 134. In proceedings instituted in the Federal Court, Mr Quade had sued the Commonwealth Bank (CBA) on several causes of action seeking damages for financial loss incurred on a foreign currency loan made to him. An order for discovery had been made before the trial of those proceedings. Mr Quade's claim was dismissed at first instance.

130 After judgment, CBA made available to Mr Quade documents that had been wrongly omitted from the affidavit of discovery that it had filed prior to the hearing. The Full Court of the Federal Court allowed an appeal and ordered a new trial on the basis of the "fresh evidence" that CBA had failed to discover. CBA appealed to the High Court from that decision.

131 The matter for determination by the High Court was the approach to be adopted by an appellate court for determining whether a new trial should be ordered when the successful party in the proceedings admits that it had failed to give proper discovery prior to judgment at first instance. In a joint judgment, the Court declined to enunciate a "general rule" to be applied "mechanically" by an appellate court in the circumstances that there pertained. However, the Court did embrace, as appropriate in that case, the approach of Burchett J who had delivered the leading judgment in the Full Court of the Federal Court. His Honour is recorded as having examined the newly discovered documents which led him to conclude that the result of the trial "might" have been different if the CBA had not failed to produce those documents on discovery.

132 While agreeing with the approach taken by Burchett J, the High Court identified a number of factors to be considered by an appellate Court before determining whether a new trial should be ordered. One such factor was expressed as being "the extent of any likelihood that the result would have been different if the [discovery] order had been complied with and the non-disclosed material had been made available" (at 143).

133 In the circumstances applying in Quade, it is apparent that material, unknown to an unsuccessful party at trial by reason of failure of the successful party to comply with pre-trial order, may be considered by an appellate Court when determining whether, had the material been produced, there is "at least a real possibility" that an opposite result to that reached would have occurred (at [143]). That is not the position that pertains in the present case.

134 First, for reasons already determined, this is not a case where the substance of the material, said to be relevant to the determination of traffic issues, was unknown to the Applicant. Being aware of the substance, the Applicant chose not to pursue available procedures to obtain such further material as might have been available to elaborate the substance. Even if the late change of position on the part of the Council did cause the Applicant to reconsider its earlier determined forensic decision not to seek the information that it now seeks, the opportunity to obtain that information was clearly available prior to the conclusion of the hearing before the Commissioner. At least one notice to produce had been issued by the Applicant after the Council's changed position was known (Tcpt 243:19-29). By so doing, the Applicant demonstrated that it did not depend upon its 'model litigant' contention for all of its forensic purposes. There is no evidence to suggest that, had a further notice or notices to produce been issued to the Council, it would not have complied with those notices.

135 Second, the circumstances just described demonstrate that the Applicant's use of MFI 1 and MFI 2 is really an attempt to introduce a "fresh evidence" argument as a basis for its appeal. So understood, there are serious obstacles to the tender of documents for such a purpose.

136 A right of appeal is a creature of statute, not the common law. As such, the terms of the statutory provisions creating the right must be considered when determining whether fresh evidence may be received on the hearing of the appeal. I have earlier discussed the authorities that confine the powers of this Court on an appeal under s 56A of the Court Act. Moreover, authority in this Court makes clear that fresh evidence cannot be received for the purpose of reviewing the decision of a Commissioner, at least for the purpose of making findings of fact (Vis Visitor Investment Services Pty Ltd v Hawkesbury City Council [2008] NSWLEC 39 at [37]-[39] and the authorities there cited).

137 The present case is not one where a question of law is raised which asserts either a decision or finding for which there was no evidence (Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390) or a decision of the Commissioner to reject the tender of evidence said to be material to the ultimate determination that was made. It is conceivable that documents additional to those tendered at first instance might be considered on appeal in support of either such ground. However, as I have said, neither of those grounds is raised in this appeal.

138 Even if one was to assume that a "fresh evidence" ground of appeal was available under s 56A(1), the foundation for that ground is not present in this case. It cannot be contended by the Applicant that reasonable diligence on its part failed to procure the material for tender before the Commissioner (Quade at 140).

139 Essentially for these reasons, I rejected the tender of MFI 1 and MFI 2.

Notice of contention

140 The Council filed a Notice of Contention. However, the matters to which the Notice is directed does not contend for a basis to sustain the decision on grounds other than those relied upon by the Commissioner (cf Uniform Civil Procedure Rules r 50.11). Rather, it seeks to direct attention to an additional matter that should be considered by the Commissioner in the event that the appeal is sustained and the proceedings remitted to the Commissioner for further determination.

141 As I have rejected each ground upon which the Applicant argued its appeal, it is unnecessary to consider the notice of contention further.

Conclusion

142 For the reasons I have stated, the appeal must be dismissed. No error on any question of law that has been determined by the Commissioner has been demonstrated.

143 The issues upon which the case before the Commissioner was argued and determined were issues identified and argued by the JRPP which, as the determining authority, had refused the Applicant's development application. The Applicant made forensic decisions as to the manner in which it would conduct its case. It is bound by those decisions. The manner in which the Council conducted its case before the Commissioner in supporting the issues agitated by the JRPP has not been shown to have caused the decision of the Commissioner to miscarry. In supporting the JRPP, the Council did no more than focus upon the evidence led by both the Applicant and the JRPP. More particularly, the Applicant has failed to demonstrate that by not volunteering the production of "material" to which the Applicant has referred it failed to conduct itself as a model litigant.

144 Finally, it must be borne in mind that in order to succeed in its appeal, it was necessary for the Applicant to succeed on each of the grounds of appeal argued by it. Neither ground has succeeded.

Orders

145 I make the following orders:

1. Appeal dismissed

2. The Applicant must pay the First Respondent's costs of the appeal.

3. Exhibits tendered on the appeal may be returned.

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Decision last updated: 22 August 2014