Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141
• Hearing dates: 30 April 2014
• Decision date: 30 April 2014
• Before: Beazley P; Ward JA; Gleeson JA

Decision

Leave to appeal refused with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: EVIDENCE - Reliance on Expert Evidence in Judicial Review Proceedings - Uniform Civil Procedure Rules 2005 r 31.19 - Whether evidence was "reasonably required" to resolve the proceedings - Whether Court erred in refusing to grant leave to rely upon evidence; PROCEDURE - Judgments and Orders - Statement of Reasons for Decision - Whether the primary Judge's reasons were inadequate
• Legislation Cited: Civil Procedure Act 2005 (NSW) s 56(3); Environmental Planning and Assessment Act 1979 Pt 3A; Land and Environment Court Act 1979 (NSW) s58(3)(b); Uniform Civil Procedure Rule 2005 r 31.17, 31.19
• Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Beale v GIO (1997) 48 NSWLR 430; Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWLEC 14; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Segal v Waverley Council (2005) 64 NSWLR 177; Shellharbour City Council v Minister for Planning [2011] NSWCA 195; Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181; Warragamba Winery Pty Ltd v State of NSW [2010] NSWCA 174
• Category: Principal judgment
• Parties: Botany Bay City Council (Applicant); Minister for Planning and Infrastructure (First Respondent); Stateland BKK Pty Ltd (Second Respondent); Prosha Pty Limited (Third Respondent); Statement East Pty Limited (Fourth Respondent); BKK JV Pty Limited (Fifth Respondent)
• Representation: Counsel: T S Hale SC with D Hume (Applicant); A Shearer (First Respondent); C Ireland (Second to Fifth Respondents); Solicitors: Houston Dearn O'Connor (Applicant); Department of Planning and Infrastructure (First Respondent); McCullough Robertson Lawyers (Second to Fifth Respondents)
• File Number(s): 2014/71255

Decision under appeal

• Citation: Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWLEC 14
• Date of Decision: 2014-02-27 00:00:00
• Before: Sheahan J
• File Number(s): LEC 13/40953

Judgment

1 THE COURT: The applicant, Botany Bay City Council (Council), seeks leave to appeal from a decision of Sheahan J on 27 February 2014 refusing leave pursuant to Uniform Civil Procedure Rule 2005 (NSW) (UCPR) r 31.19 to rely upon expert evidence in judicial review proceedings in the Land and Environment Court of New South Wales: Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWLEC 14. (As the decision is interlocutory, leave is required: s 58(3)(b) Land and Environment Court Act 1979 (NSW)).

2 The application was heard on 30 April 2014. At the conclusion of the oral argument on behalf of the Council the Court ordered that leave to appeal be refused with costs and reserved its reasons for doing so. These are those reasons.

Provisions of UCPR

3 UCPR r 31.19 relevantly provides as follows:

"Parties to seek directions before calling expert witnesses

(1) Any party:

(a) intending to adduce expert evidence at trial, or

(b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3) Unless the court otherwise orders, expert evidence may not be adduced at trial:

(a) unless directions have been sought in accordance with this rule, and

(b) if any such directions have been given by the court, otherwise than in accordance with those directions.

...".

4 The context to that rule is identified in UCPR r 31.17 which provides that the "main purposes" of the division in which r 31.19 appears are relevantly:

"(a) to ensure that the court has control over the giving of expert evidence,

(b) to restrict expert evidence in proceedings to that which is reasonably required to resolve proceedings ...".

5 In Shellharbour City Council v Minister for Planning [2011] NSWCA 195, Giles JA said at [35]:

"35 ... The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible."

Background

6 On 19 September 2013 the Minister for Planning and Infrastructure, by his delegate the Planning Assessment Commission of New South Wales, approved a major project for the redevelopment of the Eastlakes Shopping Centre subject to certain conditions. That approval was given (Project Approval) under the former Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Project Approval related to the construction of a mixed use development, generally between 2-6 storeys above podiums in height, and included a maximum of 405 residential apartments with a maximum gross floor area of 34,636 m2.

7 The Council instituted class 4 proceedings in the Land and Environment Court seeking declarations that the Project Approval was void and of no effect and consequential injunctive relief. The Minister is the first respondent. The second, third, and fourth respondents are the owners of the land on which the development is proposed to take place. The fourth and fifth respondents are the proponents of the development.

8 The first return date for the proceedings was 20 December 2013. Directions were made for the filing of evidence by 31 January 2014. The Council filed and served affidavits from two experts without obtaining the prior leave of the Court, as required by r 31.19. The Council subsequently sought leave to adduce expert evidence at trial from Mr Bewsher, a flooding and stormwater drainage expert, and Mr Tayler, an architect, in the form of the affidavits which had been already filed and served. The Council contended that the affidavits were relevant to two of the five claims advanced against the Project Approval in Points of Claim filed on 3 February 2014.

9 The Council contended that Mr Bewsher's affidavit was directed to the topic of stormwater, drainage, and flooding - in support of the Council's Claim 3 that the Minister failed to consider, or failed to adequately consider, drainage/flooding/stormwater issues associated with the subject development, in particular the matters in key issue 13 of the Director-General's environmental assessment requirements pursuant to s 75F of the EPA Act.

10 The Council contended that Mr Tayler's affidavit was directed to the topic of design modifications - in support of the Council's Claim 4 that the extent of modifications referred to in condition B2 of the Project Approval, relating to unit sizes being amended to meet the minimum requirements of the Residential Flat Design Code (Code), was such that the Project Approval was not an approval authorised by s 75J(4) of the EPA Act (because of the absence of finality and certainty) and the Planning Assessment Commission had not considered the impacts of the project.

11 The respondents objected to leave being granted to the Council to rely upon the affidavits. They contended that it was clear from the instructions given to each of the expert witnesses that the affidavits addressed the merits of the Minister's decision in granting the Project Approval and otherwise added nothing of use to the Court in resolving the real issues before the Court on judicial review.

12 Sheahan J declined to examine the affidavits in detail but noted at [16] and [17] that his attention had been drawn to the instructions recorded in those affidavits. The Bewsher affidavit recorded:

"4. My instructions were, from a hydrological and stormwater drainage perspective, to:

(a) review the information provided by the Applicant in relation to the stormwater drainage aspects of the development;

(b) review the assessments of this information that were undertaken by the Department of Planning and Infrastructure (DP&I) and the Planning Assessment Commission (PAC), and determine whether the assessments were appropriate and took account of the relevant stormwater drainage considerations, having regard to normal practice in NSW; and

(c) identify any shortcomings in the stormwater drainage assessment process.

6. My instructions were to focus on the stormwater issues related to water quantity rather than water quality."

and the Tayler affidavit recorded:

"5. I have received instructions from the applicant to determine the number of units in the approved plans that are less than the internal areas as shown in the table on the top of p 69 of the Residential Flat Design Code which are unit internal and external area figures for the different types of apartments as shown on pp 67 and 68 of the RFDC."

13 Sheahan J accepted the respondents' submissions that, having regard to the instructions given to the experts, their affidavits addressed only the merits of the Minister's decision to grant Project Approval: at [46], that the Bewsher affidavit transgressed into a criticism of the Environmental Assessment Report and the material prepared by the proponent with respect to the project: at [47], and that the Tayler affidavit identified only a possibility flowing from condition B2(a) concerning design modifications, and that as the condition contemplated a redesign of the built form Mr Tayler's views on internal unit sizes added nothing of use to the Court: at [48]. His Honour concluded that the Council had failed to establish that the evidence of Mr Bewsher and Mr Tayler is "reasonably required" to resolve the real issues before the Court: at [52]. His Honour refused leave to rely upon the expert evidence which had already been filed: at [53].

Relevant principles

14 It is well established that parties who seek to challenge a discretionary interlocutory decision on a matter of practice and procedure, such as that of Sheahan J, face a difficult task: Warragamba Winery Pty Ltd v State of NSW [2010] NSWCA 174 at [6]. In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], Heydon JA accepted that, to succeed, it was necessary for an applicant challenging such a decision to establish that the decision maker:

(a) made an error of legal principle;

(b) made a material error of fact;

(c) took into account some irrelevant consideration;

(d) failed to take into account, or to give sufficient weight to, some relevant matter; or

(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

15 Further, ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is not sufficient merely to show that the trial judge was arguably wrong: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].

Disposition of the application

16 Here there is clearly no issue of principle or question of general importance raised by Sheahan J's decision. Nor has the Council demonstrated that there is any basis that conforms with established principles on which this Court could, or should, intervene. The matters that the Council relied upon were as follows.

17 First, the Council contended that his Honour's reasons were inadequate and evidenced a failure to consider the Council's arguments. In our view there is no substance to this complaint. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Beale v GIO (1997) 48 NSWLR 430 at 433 per Meagher JA; Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181 at 215 [56]. The decision which is challenged in the present case was interlocutory and concerned a matter of practice and procedure. Accordingly, his Honour's reasons did not need to be necessarily lengthy or elaborate. The relevant question is whether his Honour dealt with the matters critical for the decision arrived at: Segal v Waverley Council (2005) 64 NSWLR 177 at [93] per Tobias JA (Beazley JA and Basten JA agreeing). In our view he did so.

18 Secondly, the Council contended that it was denied procedural fairness because the primary judge took into account the contents of the affidavits of the experts when he said that he would not read that material. However, this submission ignores the reasons of Sheahan J at [16]. There his Honour noted that he declined to examine the affidavits "in detail", but that his attention had been drawn to sections detailing the instructions which had been given to the experts. (The Council had notice of the respondents' written and oral submissions before Sheahan J relating to the experts' instructions and had the opportunity to deal with those submissions.) There was no error in his Honour taking those instructions into account when considering the proposition or propositions which the expert evidence was said to support and whether expert evidence directed to those matters was reasonably required.

19 Thirdly, the Council contended that his Honour's refusal of leave to adduce expert evidence was manifestly unreasonable and constituted an injustice because the evidence was required to establish certain of the particulars of its Claim 3 and Claim 4, without which the particulars could not be established, and those claims would have to be either withdrawn or possibly repleaded. However it is tolerably clear from the instructions given to Mr Bewsher that he was asked to address matters relating to the merits of the assessment process undertaken by the Minister's delegate in relation to stormwater drainage. The Council did not suggest that evidence relating to the merits of the assessment process would have been admissible in judicial review proceedings. In oral argument the Council accepted that Mr Bewsher's instructions were broader than the particulars (v), (vi) and (vii) to [24] of its Points of Claim, to which his evidence was said to be directed. No such concession was made before the primary judge. It was appropriate for the primary judge to deal with the application on the basis that Mr Bewsher's affidavit complied with the instructions he had been given, as recorded in his affidavit.

20 As to the Tayler affidavit, the Council contended that this was directed to the two issues raised by the particulars (i) and (ii) to [27] of the Points of Claim: (a) the number of units which did not comply with the minimum sizes in the Code; and (b) the large number of ways of redesigning the proposed units to ensure that they were compliant with the Code, as required by condition B2(a) of the Project Approval. However, the first matter did not require the expertise of an architect. It involved looking at various plans and related documents to determine the number of non-compliant units. Expert evidence is not required to prove matters which can be readily discerned from documents. Surprisingly, having undertaken this exercise, the Council had not asked the respondents to make an admission as to the number of non-compliant units. (It should be emphasised that all parties are under a duty to assist the Court to facilitate the just, cheap and quick resolution of the real issues in proceedings: s 56(3) Civil Procedure Act 2005 (NSW). This includes making appropriate admissions of facts not bona fide in dispute.) The second matter was a self-evident proposition, not requiring expert evidence, that so far as the non-compliant units needed to be redesigned to meet the minimum unit sizes in the Code this might be achieved in a number and variety of ways.

21 Fourthly, the Council complained that the primary judge did not deal with its alternative application to grant leave to adduce expert evidence directed to certain particulars of Claim 3 and Claim 4 in its Points of Claim. It was argued that the question of whether the expert evidence transgressed into the merits of the assessment process by the Minister's delegate should have been deferred to a time closer to, or at the hearing of, the judicial review proceedings. There are number of difficulties with this submission.

22 The first is that it is clear from the transcript of oral argument before the primary judge that the Council did not resile from its reliance upon the two affidavits, which it had already filed and served. Having regard to the instructions given to those experts, there was no error in the primary judge concluding that such evidence was not reasonably required.

23 The second difficulty is that the course suggested by the Council as being the appropriate one for the primary judge to have permitted would undermine the central purpose of the "filtering process" which UCPR r 31.19 is directed to achieving - that is, to ensure that only expert evidence which is "reasonably required" may be adduced.

24 For these reasons we concluded that the application for leave to appeal should be refused with costs.

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Decision last updated: 08 May 2014