Leichhardt Municipal Council v Telstra Corporation Limited Telstra Corporation Limited v Leichhardt Municipal Council

[2005] NSWLEC 406

Land and Environment Court

of New South Wales

CITATION:	Leichhardt Municipal Council v Telstra Corporation Limited Telstra Corporation Limited v Leichhardt Municipal Council [2005] NSWLEC 406
PARTIES:	Leichhardt Municipal Council (Appl in Class 4/Resp in Class 1) Telstra Corporation Limited (Resp in Class 4/Appl in Class 1
FILE NUMBER(S):	41143/04; 10326 of 2005
CORAM:	McClellan CJ
KEY ISSUES:	Practice and Procedure :- Whether the Court should appoint a court expert Applicant sought leave to call its own expert prior to the appointment of a court expert Leave denied
DATES OF HEARING:	27 May 2005
EX TEMPORE JUDGMENT DATE:	05/27/2005
LEGAL REPRESENTATIVES:	C R Ireland (Telstra) Blake Dawson Waldron (Sol - Telstra) Margaret Lyons (Leichhardt Council) Manager Legal Services Leichhardt Municipal Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

FRIDAY 27 MAY 2005

41143/04 LEICHHARDT MUNICIPAL COUNCIL v TELSTRA CORPORATION LIMITED
10326/05 TELSTRA CORPORATION LIMITED v LEICHHARDT MUNICIPAL COUNCIL

JUDGMENT

1 HIS HONOUR: This matter comes before me this morning by reference from the Registrar. The matter is simple. It involves an application, effectively on behalf of Telstra, to erect an opaque screen around a proposed telecommunications facility on the top of an existing building.

2 What is proposed at the moment, is a plain box which will sit on top of the building. The Council says that more should be done to ameliorate the impact of the proposal by either modifying the design or adopting a more amenable colour or a combination of the two. Regrettably, for such a simple matter, the parties seem to have been unable to move towards a resolution without the assistance of the Court. It needs to be said that the telecommunications facility itself is not the subject of a development application, being protected by relevant Commonwealth legislation. All that is in issue is the screen to be provided around a facility which will, otherwise, be erected.

3 A photo montage has been prepared by the applicant and is in the possession of the Council. The applicant’s solicitor, appearing today, apparently was not aware of the existence of the montage. Notwithstanding his apparent ignorance of that aspect of the matter, the primary application which he makes is that the Court should appoint a court appointed expert, architect/urban designer, to assist in the resolution of the matter. I do not think that is necessary.

4 This issue is almost as simple as any issue this Court can ever deal with. The Court was created by the Parliament with provision for commissioners with expertise in urban design and planning matters, amongst others, to be appointed so as to assist the community to resolve disputes without the necessity for the parties to engage, at expense, their own experts. This case is a classic illustration of a matter where expert evidence is not required beyond the plans and an appreciation of the facility which can be readily achieved through computer generated images.

5 I have previously said on many occasions that the culture which has existed in the Court whereby legal practitioners make the assumption that every issue can only be resolved after the receipt of expert evidence is wrong. That culture fails to appreciate the structure of this Court and the expertise which is available from within its members.

6 Of course there are cases, indeed many cases, where the complexity of the issues involved requires parties to obtain expert evidence to assist in their resolution. However, this is not such a case. Accordingly, I will not appoint a court expert to this matter.

7 In the event that I did not appoint a court expert, Mr Ireland who appears for the applicant, asked for leave for his client to call its own expert. This submission suggests a failure to appreciate the rules of this Court. Leave to call an expert is only necessary if a court expert has been appointed. If a court expert has not been appointed there is no impediment to a party calling its own expert if it so wishes. Accordingly, if the applicant wishes to go to the expense of calling an expert in this matter, that is a matter for it.

8 The final matter which needs to be addressed this morning is the future progress of the proceedings. The exchanges at the bar table and the correspondence suggest to me that the parties have so far been unable to successfully communicate with each other with a view to resolving the problem. I do not wish to explore that further, but it seems to me that it is essential that the Court take control of this matter and ensure that it is prepared in an appropriate way for a hearing.

9 I do not know what the outcome of the matter might be but, plainly, design alternatives will need to be explored, either at the hearing, or at some pre-hearing case management or evaluation process. Any further delay in addressing those matters would be unfortunate.

10 Accordingly, I propose to fix the matter for management by a commissioner.

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