Azzopardi and (3) Ors v Gosford City Council

[2001] NSWLEC 49

Land and Environment Court

of New South Wales

CITATION:

Azzopardi & (3) Ors v Gosford City Council & Anor [2001] NSWLEC 49

PARTIES:

APPLICANTS:
Victor Azzopardi & (3) Ors

FIRST RESPONDENT:
Gosford City Council

SECOND RESPONDENT:
Parit Pty Limited

FILE NUMBER(S):

40093 of 2000

CORAM:

Lloyd J

KEY ISSUES:

Practice & Procedure :- order to inspect property

LEGISLATION CITED:

Foreshores Improvement Act 1948 s 2, s 22
Supreme Court Rules Pt 25 r 8

CASES CITED:

Fletchers International Exports Pty Limited v Hodges [2000] NSWCA 285;
Pecar v National Australia Trustees Limited (The Estate of Ivan Urlich Deceased) Supreme Court of NSW, Bryson J, 27 November 1996, unreported;
Reid v Frost Developments Pty Limited [1964-5] NSWR 1683

DATES OF HEARING:

21/11/2000

DATE OF JUDGMENT:

03/28/2001

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr J F Kildea (Barrister)
SOLICITORS:
Thompson Norrie

FIRST RESPONDENT:
Mr M Fraser (Barrister)
SOLICITORS:
P J Donnellan & Co

SECOND RESPONDENT:
Mr P C Tomasetti (Barrister)
SOLICITORS:
Gregory J Halpin

JUDGMENT:

1

Victor Azzopardi, Jane Azzopardi,

Michael John Azzopardi,

and Kim Leanne Azzopardi

Applicants

v

Gosford City Council

First Respondent

Parit Pty Limited

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek orders pursuant to Part 25 Rule 8 of the Supreme Court Rules 1970 (which applies to this Court), to authorise their surveyor and his assistant, together with their solicitor, to enter and inspect the second respondent’s property for the purpose of preparing a report to be tendered as evidence in these proceedings. The second respondent opposes this motion.

2. In the substantive proceedings the applicants challenge the validity of a development consent granted by the first respondent to the second respondent on the grounds that the development was integrated development under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”); and that the first respondent did not fulfil the mandatory requirements relating to consent to integrated development. To prove their case it is necessary for the applicants to show that the proposed development is integrated development, which they propose to do by showing that the development was to occur within “protected lands” within the meaning of the Rivers and Foreshores Improvement Act 1948 (“the RFI Act”); that is, lands which are within 40 metres of the bank of a river, and that it involves excavation. They submit that an inspection is necessary to establish some of these facts.

Facts sought to be established

3. Mr J F Kildea, appearing for the applicants, submits that the proposed inspection will assist in establishing three “facts” which are in contention.

(1) whether the unnamed watercourse on the second respondent’s property is a river within the meaning of the RFI Act, and hence whether water within that watercourse and water in the dam constructed across the watercourse are protected waters;

(2) whether the land upon which the truck access road, stormwater drains and nutrient tank described in the development application to be constructed fall within protected land within the meaning of the RFI Act; and

(3) whether the construction of the road, stormwater drains and nutrient tank involve excavation.

4. Mr P C Tomasetti, who appears for the second respondent, correctly submitted that the first fact in contention raises a number of interrelated factual and legal questions. They are to be examined in the context of the two following definitions from the RFI Act.

River includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream of water and any affluent, confluent, branch, or other stream into or from which the river flows and, in the case of a river running to the sea or into any coastal bay or inlet or into a coastal lake, includes an estuary of such river and any arm or branch of same and any part of the river influenced by tidal waters. (Section 2)

Protected waters means a river, lake into or from which a river flows, coastal lake or lagoon (including any permanent or temporary channel between a coastal lake or lagoon and the sea).

(Section 22A)

5. It is to be noted that the first definition does not contain any threshold volume or permanency or other characteristic which would disqualify any watercourse, however insignificant, from being dignified with the title “river”. The second respondent admits in its points of defence that its property is crossed by a watercourse, and its path is illustrated in the plan marked “B” annexed to Mr Azzopardi’s affidavit. Given this, it is hard to see how the respondents could argue that the watercourse in question was not a “river”, but it is equally difficult to see how any measurements or observations undertaken by a surveyor or any other expert could assist the applicant in proving that it was. The status of the dam may perhaps be more contentious as a legal question, but again, the nature of the definition does not suggest that a surveyor’s measurements or observations could assist the applicants’ case. The dam is presumably represented in the plans attached to the development application which became the subject of the development consent, and which will be before the court at trial. In this respect, the applicants have not made it apparent what information, beyond that which can be gleaned from readily available public documents, they hope to gain from making an inspection of the second respondent’s property.

6. The second question, whether the proposed development is to occur on protected land, directs attention to the definition of “protected land” in the RFI Act, which is as follows:

Protected land means:

(a) land that is the bank, shore or bed of protected waters, or
(b) land that is not more than 40 metres from the top of the bank or shore
of protected waters (measured horizontally from the top of the bank or shore)…. (Section 22A)

7. Again, the proximity of the proposed works to the river and dam is something which should be shown in the plans which are the subject of the development consent. Since it is invalidity of the development consent which is alleged and the consent was based on the development application as submitted to council, the inquiry should turn upon the nature of the development as disclosed in the plans. Non-compliance with the development consent is not alleged. It follows that the conformity of actual works to their description in the plans is not a relevant consideration.

8. The third question, whether excavation is involved in the proposed development, specifically, in the construction of the access roads and stormwater drains which are alleged to be within 40 metres from the top of the bank or shore of protected waters, should also be answerable by consideration of the plans which are the subject of the development consent when read together with the development application and the accompanying Statement of Environmental Effects. These documents should disclose whether any excavation is to be carried out in the course of constructing the works. If they are insufficient to established the applicants’ claim, then the applicants have not identified what additional facts it is necessary to ascertain by inspecting the second respondent’s property.

Conclusions

9. Part 25 Rule 8(1) of the Supreme Court Rules (incorporated into the rules of this Court by Part 6 Rule 1 of the Land and Environment Court Rules 1996), contains the following provisions:

(1) The Court may, for the purpose of enabling the proper determination of

any matter in question in any proceedings, make orders, on terms, for -
a) the inspection of property
b) ….
c) the m aking of any observation of any property.

10. It follows from the terms of the section, and has also been held in decided cases, that this rule may not be used to enable a plaintiff to determine whether or not he has a claim (Reid v Frost Developments Pty Limited [1964-5] NSWR 1683, Fletchers International Exports Pty Limited v Hodges [2000] NSWCA 285 at para[19]).

11. Counsel for the applicants has drawn my attention to the reasons of Bryson J in Pecar v National Australia Trustees Limited (The Estate of Ivan Urlich Deceased) (Supreme Court of New South Wales, 27 November 1996, unreported). Bryson J stated that he approached the use of the power “with a general disposition favourable to attaining procedural justice by employing the powers of the court to enable litigants to bring forward relevant evidence even if they do not have legal control of that evidence”. However favourably disposed the court may be to the attainment of procedural justice, the critical question in this case is whether the evidence which the applicants seek to obtain by the inspection is really relevant to their claim as stated. I would not be willing to exercise my discretion to make an order allowing the applicants to enter on the respondent’s private property if this were not demonstrated with some degree of clarity.

12. As counsel for the second respondent submits, the relief claimed together with the applicants’ Points of Claim primarily allege invalidity of the development consent on the ground that the application was one for integrated development. The primary issue is thus the nature of the application itself and the consent which was granted thereto and should ordinarily be determinable by reference to that material. To some extent the essential characteristics of the land upon which the development is to occur may be relevant (for example the nature of the watercourse running through the property), but these are admitted by the second respondent’s Points of Defence. The applicants have not demonstrated what further information is necessary to determine any issue in the proceedings.

13. It may be that the evidentiary material sought by the applicants may include measurements or details not included in the development application or in the accompanying plans or Statement of Environmental Effects. It may be possible, however, that these could be verified by other means; for example by the service of interrogatories or notices to admit, or by taking up the second respondent’s offer to provide surveys in its possession, or it could be that a narrower order allowing the surveyor to enter and examine only a certain part of the property would be deemed appropriate. Since the applicants have made no attempt to specify what measurements or observations they wish to make, the second respondent may be justified in suspecting that they are engaged in a mere “fishing expedition”.

14. The applicants have not demonstrated that an order permitting their surveyor to go upon the second respondent’s property in order to make observations and prepare a report would serve “the purpose of enabling the proper determination of any matter in question in any proceedings”. I therefore decline to make such order.

Orders

15. The formal orders therefore are as follows:

(1) The applicants’ Notice of Motion dated 24 October 2000 is dismissed.

(2) The costs of the Notice of Motion shall be the respondents’ costs in the proceedings.

(3) The exhibits may be returned.