Kevin Snell Pty Limited v Manly Council

[2004] NSWLEC 760

Land and Environment Court

of New South Wales

CITATION:	Kevin Snell Pty Limited v Manly Council [2004] NSWLEC 760
PARTIES:	Kevin Snell Pty Limited (Appl) Manly Council (Resp)
FILE NUMBER(S):	10460 of 2004
CORAM:	McClellan CJ
KEY ISSUES:	Evidence :- Expert evidence Town planner Social planner Whether the expert should be independent of the parties
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	23 November 2004
EX TEMPORE JUDGMENT DATE :	11/23/2004
LEGAL REPRESENTATIVES:	S Duggan (Barrister - Appl) Bruce Stewart Dimarco Lawyers (Appl) C Schofield (Sol - Resp) Pike Pike & Fenwick (Sol - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

FRIDAY, 23 NOVEMBER 2004

10460/04 KEVIN SNELL PTY LIMITED v MANLY COUNCIL

JUDGMENT

1 HIS HONOUR: This matter comes before me following a reference from the Registrar in relation to difficulties which have arisen with respect to two matters. The first difficulty is in relation to the expert evidence to be provided in the appeal and the second is whether or not the appeal should be processed with expedition or should await further proceedings in the Court of Appeal.

2 In relation to the second question, as I understand it the Council has put in issue whether the application should be approved in the circumstances where the development will provide a major re-building of an existing building, which would delay the achievement of a road widening proposal. My understanding is that a notice was issued in 1951 and appropriate entry was made in the Gazette on 24 March 1961. The validity of that notice came before Pain J and she determined the matter in favour of the applicant.

3 The Council has lodged a holding appeal and I have been informed by its solicitor that it proposes to prosecute the appeal. In those circumstances, the Council says that there is little point in the class 1 matter being presently brought to a hearing, for its ultimate fate may depend upon the fate of the appeal in the Court of Appeal. The Council also says, as a side wind, that it proposes to issue a further notice.

4 A second matter raises the question of the efficient use of public resources in relation to a class 1 appeal in this Court. I have said on a number of occasions that I am most concerned about the decisions which are made, particularly by advisers to counsel, as to the appropriate witnesses to be proffered to the Court in merit appeals. Very often it seems to me that insufficient thought is given to the necessity for evidence in a variety of disciplines with the consequence that unnecessary costs are incurred. The present case seems to me to be an illustration of these problems.

5 As I understand the position, the premises which are the subject of this appeal, are presently used as a nightclub. It is proposed to alter the building to turn it into an hotel. There will be an increase in the number of patrons with the consequential need to assess the impacts that will follow. Those impacts will no doubt be felt by adjoining or neighbouring properties and could be more significant than any impacts which are presently experienced from the operation of the nightclub.

6 The Council says that because the premises do not have a satisfactory loading and unloading facility, and because there is no car parking, it will be necessary to engage a traffic engineer to give evidence in the matter. The Council says that this is necessary notwithstanding the fact that it accepts, as does the applicant, the necessity to call a town planner to give evidence in relation to the matter.

7 For my part, I can see nothing which a traffic engineer could add to the information necessary to resolve this appeal. Plainly, if there is no loading or unloading facilities, provision will have to be made in some way for that to occur. As I understand it, special arrangements have been in place in the past for that to occur in particular hours utilising the public street for the purpose. The argument before the Commissioner who hears this matter will no doubt be that the current arrangements are working satisfactorily and could continue notwithstanding the increased intensity of the proposed development.

8 With respect to car parking, it is plain that no car parking is provided on-site. Accordingly, the question will be whether or not the existing car parking within the Manly centre is sufficient to accept an additional burden from these altered premises and whether or not in addition, a s 94 contribution should be sought.

9 These are, again, not matters which require the expertise of a traffic planner when a town planner will be called to assist in the matter. Accordingly, it seems to me that if the Council wishes to retain and call a traffic engineer to give evidence, it may do so, but I would not contemplate burdening the applicant with the cost of a person with that expertise because, in my opinion, the evidence would not be necessary.

10 The Council also says that it wishes to call a social planner in relation to the matter in addition to a town planner. It is said that this is necessary because a question of social impacts from people who abuse alcohol and have antisocial tendencies will require consideration in the matter.

11 For my part, I see no reason why a social planner is necessary. A town planner will be able to identify and discuss these problems and assist the Court to a resolution of them.

12 There is no need, in my opinion, for the public or private person to bear the cost of an additional person. No doubt the existing social problems, which I assume are real and significant, can be the subject of evidence from the police or others who may be involved in controlling the behaviour of groups of people in the Manly area, during the appropriate hours. It will then be a matter for the Court to assess whether or not the additional patrons proposed for the subject premises would impose an unreasonable burden upon the Manly centre, given that with any increase in numbers there must, of course, be a likelihood of proportional increase in any problems.

13 It is agreed between the parties that a noise issue will need assessment. In my opinion, this judgment is correct and, having regard to its significance in the resolution of the appeal, I propose that a court appointed acoustic expert should be engaged.

14 With respect to matters of town planning, the applicant says that it has for some considerable time, and I infer in the preparation of the original application, engaged the services of Mr George Smith. The Council has also engaged, for the purposes of the appeal, Mr Sonny Oi, although my understanding is that only a modest fee would have been incurred in retaining his services.

15 I have indicated, both in judgments and on other occasions when I have spoken about the difficulties with expert evidence, the reasons why this Court is concerned to appoint experts independent of the parties for the resolution of appeals. It is unnecessary for me to repeat them.

16 However, this case plainly raises a very significant issue for the Manly Town Centre in which the appropriate town planning outcome will be important. Although the applicant may have invested considerable money in Mr George Smith, the fact that he has been involved since the earliest times in the preparation of this application is one of the factors, which in my opinion, having regard to the significance of the issue, requires the Court to appoint someone independent of the parties to assist in the resolution of the problem.

17 Accordingly, I am of the opinion that it is appropriate in this case to appoint a court expert in relation to noise and also in relation to town planning matters.

18 The parties are agreed, subject to reaching an agreement with Mr Barry Murray, that he would be appropriate to deal with noise matters. I do not know whether the parties have considered a town planner, but an opportunity should be provided to them both to negotiate the appropriate fee with Mr Murray and also to reach agreement as to who the town planner should be.

19 Having regard to the fact that the Council now seeks an adjournment, and does so indicating that it proposes to prosecute the appeal, in my opinion, a very short adjournment should be granted to enable the Council to undertake the further steps, which it says it will now pursue, in prosecuting the appeal and also to enable the parties to reach agreement as to the appropriate court experts.

20 The Council says it will lodge its formal appeal to the Court of Appeal within a week and I propose to adjourn this matter to Tuesday, 30 November, before me, when the question of providing a hearing date will be further considered, as will the question of the appointment of the appropriate court expert.

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