Keller v Blacktown City Council

[2023] NSWLEC 74

Land and Environment Court

New South Wales

Medium Neutral Citation:	Keller v Blacktown City Council [2023] NSWLEC 74
Hearing dates:	10 July 2023
Date of orders:	10 July 2023
Decision date:	10 July 2023
Jurisdiction:	Class 3
Before:	Duggan J
Decision:	See paragraphs 17 and 20
Catchwords:	PRACTICE AND PROCEDURE – Notice of Motion to set aside part of notice to produce – proceedings relate to underlying zoning of acquired land – applicant sought documents from Class 1 proceedings of nearby land – whether flooding has the capacity to affect acquired land – legitimate forensic purpose – apparent relevance – Notice of Motion dismissed – access granted – costs
Cases Cited:	Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Category:	Procedural rulings
Parties:	David Rolland Keller (First Applicant) (First Respondent on the Notice of Motion) Daniel Kristofer Keller (Second Applicant) (Second Respondent on the Notice of Motion) Blacktown City Council (Respondent) (Applicant on the Notice of Motion)
Representation:	Counsel: J McGovern, solicitor (Respondent) (Applicant on the Notice of Motion) J R Walker (Applicants) (Respondents on the Notice of Motion) Solicitors: Maddocks (Respondent) (Applicant on the Notice of Motion) Mersal & Associate (Applicants) (Respondents on the Notice of Motion)
File Number(s):	2022/134010
Publication restriction:	No

EX TEMPORE Judgment

1. HER HONOUR: By Notice to Produce dated 1 June 2023, the Applicants in the proceedings sought the Respondent (the Council) produce the following documents for inspection:

1. In relation to development application number 16-05275 as referred to in the report of Robert Chambers dated May 2023, a single copy of the:

1. Development assessment report;

2. Developments plans;

3. Development consent; and

4. All correspondence between the Applicants and the Respondent relating to the Respondent's assessment of the said development application.

2. In relation to proceedings number 2017/203689, being the consent granted by the Land and Environment Court for the above development application, a single copy of the:

1. Application by which the proceedings were commenced;

2. Points of Claim; and

3. Points of Defence.

2. The proceedings to which para 2 above refer were Class 1 proceedings and the parties agree that for the purposes of para 2 I should take para (a) to be the Notice of Appeal, para (b) to be the Statement of Facts and Contentions and para (c) to be Statement of Facts and Contentions in Reply filed in those proceedings.

3. The Council filed a Notice of Motion on 15 June 2023 seeking to set aside the Notice to Produce served by the Respondent, together with orders that the Applicants pay the Respondent's costs of the Motion and such other orders as the Court deems appropriate. By negotiations prior to the hearing before me today on 10 July 2023, the Council had conceded that the documents referred to in para 1 insofar as they comprised the development assessment report, the most current development plans that were approved by the Council or the Court as the case may be that relate to the watercourse and/or a riparian zone within DA 16-05275, and the development consent, together with Council's preliminary assessment of the development application and all of the Respondent's correspondence relating to the watercourse and/or riparian zone, were to be produced.

4. The Council in its written submissions to me this morning at para 34 noted:

The respondent accepts that the manner in which the drainage near the acquired land has been managed in DA 16-05275 may be of interest to the applicant to enable it to understand the management of drainage in the vicinity of the acquired land. Accordingly, the respondent agreed to the documents in the reduced scope at para 1 of the notice of motion.

5. Accordingly, the Notice of Motion before me today related only to para 2 of the Notice of Motion and the Council sought to amend the Notice of Motion so that it related just to para 2.

6. The Council contends that there is no legitimate forensic purpose in relation to the documents sought in para 2 of the Notice to Produce. It suggests that the subject land that has been acquired, that is the subject of the Class 3 proceedings, is of an entirely different nature to that referred to in the development application to which the Notice to Produce relates. Whilst it is within a short distance from the acquired land, the acquired land is not impacted by the riparian corridor to which the Class 1 development application proceedings related.

7. The Council submitted that the material sought in para 2 will not in and of itself have logical probative value, and rather, the material that had been produced pursuant to para 1 would be sufficient for the Applicants in the proceedings to understand the process of approval in relation to the development application in order for it to understand the management of drainage in the vicinity of the acquired land.

8. It was also submitted on behalf of the Council that there was no apparent relevance of the material and that it was mere speculation that the material would be able to assist the Applicants in the proceedings understanding of the matter. It further submitted that the Applicants’ town planner had indicated that the material was of fundamental utility in providing a capacity for a joint expert report. That joint expert report has already been provided and therefore, there must be of little or no utility in the provision of the material.

9. It was also brought to my attention that the zoning to which the Class 3 proceedings relates was undertaken in 2010, whereas the approval to which the development application relates was in 2017.

10. The Applicants in the proceedings submit that it is necessary for it to have the material in para 2 because of the nature of the proceedings before the Land and Environment Court. The proceedings were resolved by way of a 34 agreement. Whilst the documents in para 1 allow it to understand the outcome of the development application, it is unable to ascertain the process which led to the approval of the development application in circumstances where an appeal had to be filed as the Council was not in a position to approve the application in the form originally lodged.

11. The Applicants submit that there is an apparent relevance in the material sought in para 2 as it involves the impact of flooding risks arising from the same watercourse and riparian zone being regulated under the same planning rules, and the development plans and development consent sought in para 2 is the same as the acquired land. The circumstances in which the application went from one which was unable to be approved to one that was able to be approved will assist in informing the appropriate determination possibly of the development potential of the acquired land and/or assist in understanding the process by which the Council's town planner has determined the development potential of that land.

12. In addition, the Applicants in the proceedings contend that the flooding risks in the Class 1 proceedings would be relevant to understanding the development potential and constraints on the acquired land and the Council's approach to the same discretions in the application of the same planning rules.

13. The relevant test for determination as to whether or not a subpoena, or in this case a Notice to Produce, should be set aside for reasons that it demonstrates no forensic purpose, was considered by the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. In that decision, President Bell as he then was, made the observation at [60] of his decision wherein he said:

There is a danger in using the language of 'tests' for the setting aside of subpoenas and such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court’s general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories. The variety of grounds on which a subpoena may be set aside is illustrated by the list of examples supplied by Powell J in Botany Bay at 100.

He then goes on to say at [68]:

There is a plain difference between 'apparent relevance' and 'fishing', the latter being the metaphor that is frequently deployed in this area of discourse. The word 'apparent' admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.

Finally, at [80]:

My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can:

(i)   identify a legitimate forensic purpose for which access is sought; and

(ii)    establish that it is ‘on the cards’ that the documents will materially assist his case”,

at least in civil matters, an inability to demonstrate that it is 'on the cards' that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.

14. In this case, as I have observed, the Council accepts that the manner in which drainage near the acquired land has been managed may be of interest to the Applicants to enable them to understand the management of drainage in the vicinity of the acquired land. The subject matter of the proceedings relates to what underlying zoning should be applied to the acquired land and if an underlying zoning of residential is applied to that land, the development potential that would be able to be exploited on that land if it was so zoned.

15. In those circumstances, the manner in which the flood risk impacts upon either the potential for the land to be zoned residential and/or if zoned residential the capacity of development to be undertaken on that land are matters the subject of the proceedings. Whilst the documents produced in para 1 indicate the outcome of how a development application on land proximate to the acquired land was determined to the point in which it was capable of being approved, it does not identify the process which led from the apparent refusal of the application to the point in which it was able to be approved.

16. That process of consideration is apparently relevant to have regard to whether or not the issues of flooding and the like that have the capacity to affect the acquired land were matters of consideration in the determination of a development application for residential uses on land subject to the flooding from the same material.

17. Accordingly, I am satisfied that there is an apparent relevance in the request for the documents in para 2 of the Notice to Produce and therefore, there is a legitimate forensic purpose. There being no other basis on which the Notice to Produce is sought to be set aside, I dismiss the Notice of Motion and I direct the Council to produce the documents referred to in para 2 forthwith.

[ARGUMENT ON COSTS]

18. The Applicants seeks its costs of the Motion. The Council accepts that in Class 3 proceedings generally absent exceptional circumstances the Respondent pays the Applicants’ costs of the proceedings. Accordingly, it does not wish to submit that the costs of the Motion not be costs payable by it. The Applicants seek that the costs order be made payable forthwith as this was a discrete point in the proceedings and the payment should not await the outcome of the proceedings.

19. I consider that this matter is just part of the usual course of litigation and whilst I am prepared to make an order for costs that the Respondent pay the Applicants’ costs of the Notice of Motion, I see no reason why an order other than the usual order should be made. The proceedings are listed for hearing in a short time from the hearing of the Notice of Motion today.

20. Accordingly, I order that the Council pay the Applicants’ costs of the Notice of Motion.

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Decision last updated: 12 July 2023