Malek v Woollahra Municipal Council

[2017] NSWLEC 124

Land and Environment Court

New South Wales

Medium Neutral Citation:	Malek v Woollahra Municipal Council [2017] NSWLEC 124
Hearing dates:	19 September 2017
Date of orders:	26 September 2017
Decision date:	26 September 2017
Jurisdiction:	Class 1
Before:	Molesworth AJ
Decision:	See orders at [49]
Catchwords:	PRACTICE AND PROCEDURE – application to adduce expert architectural evidence – whether decision of Registrar precludes application – whether Applicant restricted to seeking review of Registrar’s decision – whether expert architectural evidence reasonably required – whether Court should exercise discretion to allow expert architectural evidence
Legislation Cited:	Civil Procedure Act 2005, ss 56, 61 Environmental Planning and Assessment Act 1979, ss 96, 97AA Land and Environment Court Act 1979, s 38 Uniform Civil Procedure Rules 2005, rr 31.17, 31.19, 31.20, 31.24, 49.16, 49.18, 49.19, 49.20; Division 2 of Part 31, Division 4 of Part 49
Cases Cited:	Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238
Category:	Procedural and other rulings
Parties:	Ms Michelle Malek (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: Mr C R Ireland (Applicant) Mr M A Cottom (Solicitor) (Respondent)   Solicitors: Addisons (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2017/00210663

Judgment

An applicant seeks to adduce expert architectural evidence

1. Abutting the foreshore between Bottle and Glass Point and the Beach Paddock in Vaucluse, along Coolong Road, a number of residences are favoured with fine views across to Watsons Bay. On 14 December 2015, development consent was granted by Woollahra Municipal Council (‘the Respondent Council’) for one such dwelling along Coolong Road to be demolished and replaced with a four storey dwelling, tennis court and basement garage in a landscaped setting (‘the development consent’). The relevant land comprises Lot 1 in Deposited Plan 105319 and is known as 29 Coolong Road, Vaucluse (‘the Land’).

2. On 2 May 2017, Ms Michelle Malek, who is the registered owner of the Land, lodged an application seeking consent for the development consent to be modified under s 96(2) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’), so as to accommodate “architectural changes to address structural and mechanical engineering requirements” (‘the modification application’).

3. On 11 July 2017, by way of a Class 1 Application, Ms Malek (‘the Applicant’) commenced proceedings appealing, under s 97AA of the EPA Act, against the deemed refusal of the modification application by the Respondent Council.

4. At 5.05 pm on 7 August 2017, the Respondent Council filed its Statement of Facts and Contentions in response to a direction of the Court. The next morning at 9.00 am, the matter came before the Registrar for a directions hearing. During that hearing, an issue arose between the parties as to what directions concerning expert evidence were appropriate. Relevantly, there was a disagreement as to whether the Applicant’s architect, Emeritus Professor Alec Tzannes, should be permitted to give expert evidence in the proceedings. The Registrar declined to make an order allowing the expert evidence of Professor Tzannes to be adduced. The pertinent order made by the Registrar with respect to expert evidence is as follows:

4. Expert evidence

(a) Under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (‘UCPR’), the Court makes the following directions regarding expert evidence:

Brett Daintry, Richard Lamb and Anthony Betros are to confer in relation to contentions 1 – 5, 7 and 8 under UCPR r 31.24 and prepare a joint expert report;

the joint expert report of Brett Daintry, Richard Lamb and Anthony Betros is to be filed and served by 9 October 2017;

Andrew Morton and Melanie Howden are to confer in relation to contention 6 under UCPR r 31.24 and prepare a joint expert report;

the joint expert report of Andrew Morton and Melanie Howden is to be filed and served by 18 September 2017.

(b) Unless the Court otherwise orders, expert evidence may not be adduced at the hearing otherwise than in accordance with the directions made by the Court in accordance with UCPR rr 31.19 and 31.20, including compliance with directions as to the time for service and filing of experts’ reports and joint expert reports.

5. On 8 September 2017, after filing the Statement of Facts and Contentions in Reply on 29 August 2017, the Applicant filed a Notice of Motion seeking the following orders:

(1) Emeritus Professor Alec Tzannes is permitted to give evidence in the proceedings in relation to Council’s Contentions 1, 2 and 8.

(2) Under rules 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 Professor Tzannes is to confer with the Council’s expert, Mr Anthony Betros, in relation to the Council’s Contentions 1, 2 and 8 and prepare a joint report, to be filed and served by 9 October 2017.

(3) Such further or other order.

6. In support of this motion, the Applicant provided, inter alia, a statement from Professor Tzannes setting out the evidence that he would give in the proceedings and his resume (Annexure B to the affidavit of Ms Stephanie Vatala sworn on 8 September 2017).

7. On 19 September 2017, this motion came before the Court for hearing. It should be noted that this motion was originally listed to come before the Registrar. However, on 18 September 2017, the Registrar made the following order: “The proceedings are referred to the Duty Judge under clause 49.16 of the [Uniform Civil Procedure Rules 2005]”.

8. In essence, the Respondent Council opposes the motion on two bases. First, the Respondent Council argues that the Registrar has already ruled on the issue of whether or not the expert evidence of Professor Tzannes can be adduced for these proceedings and that, consequently, the Applicant’s motion is an impermissible collateral attack on that ruling. Hence, the Respondent Council submitted that the Applicant ought to have properly applied to review the Registrar’s ruling. Secondly, the Respondent Council argues that Professor Tzannes’s evidence is not reasonably required in the circumstances of this case and would undermine the quick and cheap resolution of the real issues in dispute.

9. Conversely, the Applicant denies that the motion constitutes a collateral attack of any ruling of the Registrar in these proceedings. Furthermore, the Applicant argues that, in light of the Respondent Council’s Statement of Facts and Contentions, Professor Tzannes’s evidence is reasonably required in the circumstances of this case and that an order to allow such evidence would be consistent with the overriding purpose of the Civil Procedure Act 2005.

10. Hence, it falls to the Court to decide whether or not to make orders permitting Professor Tzannes to give expert evidence in these proceedings.

11. For the reasons that are articulated below, the Court has decided to permit Professor Tzannes to give expert evidence. In order to properly contextualise the Court’s reasons for so deciding, it is necessary to first set out both the relevant rules applicable to reviewing a decision of the Registrar and expert evidence. Furthermore, it is appropriate to concisely set out the competing positions of the parties.

Reviewing decisions of registrars

12. Division 4 of Part 49 of the Uniform Civil Procedure Rules 2005 (‘the Procedure Rules’) provides for the review of decisions of registrars. The power of the Court to review a registrar’s direction, order or decision, on the application of a party, is set out under rule 49.19 in the following terms:

If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.

13. The process for making an application to review a registrar’s decision is delineated under rule 49.20 as follows:

(1) An application for review of a decision of a registrar is to be instituted by filing a notice of motion.

(2) The notice of motion must be filed within 28 days after the material date.

(3) The registrar may extend time under subrule (2) within 28 days after the material date, or on a notice of motion filed within 28 days after the material date, and not otherwise.

(4) The court may extend time under subrule (2) at any time.

(5) For the purposes of this rule, the material date is the date of the direction, certificate, order, decision or other act to be reviewed.

…

14. Additionally, Division 4 of Part 49 also empowers a registrar to, on his or her motion or on application by a party, refer any proceedings before that registrar to the Court: r 49.16. If a registrar does so, the Court may hear and determine any matter in the proceedings that was before that registrar: r 49.18(a).

15. It is also convenient to note here that there are various decisions which set out the applicable principles for reviewing a registrar’s direction, order or decision: see, eg, Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 and Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369. These decisions are specifically applicable to reviews of a registrar’s decision brought by a party in accordance with rule 49.19, but may not be prescriptively apposite with respect to a referral of a motion by a registrar pursuant to rule 49.16. Nevertheless, with a degree of greater flexibility, these decisions remain instructive in circumstances where a registrar’s referral may involve a re-visiting of the subject matter of an earlier decision of a registrar.

The rules concerning expert evidence

16. Division 2 of Part 31 of the Procedure Rules sets out the provisions applicable to expert evidence generally. Importantly, rule 31.17 outlines the six main purposes of Division 2, which are:

(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 the proceedings,

(c) to avoid unnecessary costs associated with parties to proceedings retaining different experts,

(d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

(e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,

(f) to declare the duty of an expert witness in relation to the court and the parties to proceedings.

17. In considering whether to make particular directions with respect to expert evidence, the Court has a broad discretion: rule 31.20 and s 61 of the Civil Procedure Act 2005. Of course, the Court must be cognisant of the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the Civil Procedure Act 2005.

18. It is also convenient to identify the following pertinent statements from this Court’s Class 1 Residential Development Appeals Practice Note at [23]-[29]:

Parties to seek directions before adducing expert evidence

23. Parties are encouraged to consider whether expert evidence is genuinely necessary to resolve the issues in dispute in residential development appeals. Unnecessary expert evidence substantially increases the time and cost of appeals. Parties are encouraged to consider whether the proceedings can appropriately be fixed for hearing before a Commissioner or Commissioners with special knowledge and experience in relation to the issues in dispute.

24. A party intending to adduce expert evidence at the hearing of any residential development appeal must apply for directions from the Court under Pt 31 r 31.19 of the Uniform Civil Procedure Rules 2005 permitting the adducing of expert evidence.

25. The application for directions is to be made at the first directions hearing. The application is to be supported by a completed information sheet in the form of Schedule D, outlining the issues in the proceedings, the experts whose opinion is sought to be adduced as evidence in the proceedings, and the areas of expertise of each expert. The application is also to be accompanied by the proposed directions under r 31.20 of the Uniform Civil Procedure Rules 2005.

26. If practicable, the Court will determine the application for directions at the first directions hearing or otherwise it will fix a date for hearing the application. At the hearing of the application for directions, the party seeking directions is to explain the expert evidence sought to be adduced and why the use of that expert evidence should be permitted, including why that expert evidence relates to a real issue in the proceedings and is reasonably required to resolve that issue.

27. A party may not adduce expert evidence at the hearing of any residential development appeal unless the Court has given directions permitting the adducing of that expert evidence and the adducing of that expert evidence is in accordance with those directions (see r 31.19(3) of the Uniform Civil Procedure Rules 2005).

28. Any directions for the filing of experts’ reports and joint expert reports made by the Court will specify the name of each expert required to comply with the directions.

29. If either party seeks to adduce the evidence of any expert not named in the directions made, that party is required to seek additional directions for the filing of evidence by that expert, either through Online Court or by exercising liberty to restore. Any application for additional directions is to be supported by an updated hearing information sheet in the form of Schedule D and provide the information and explanation referred to in paragraphs 25 and 26 of this practice note.

The threshold issue

The Respondent Council’s claim of impermissible collateral attack

19. The Respondent Council acknowledged that the Registrar referred the present motion to the Court pursuant to r 49.16 of the Procedure Rules. However, it submitted that this referral cannot remedy the Applicant’s motion if that motion has always constituted an impermissible collateral attack on a prior ruling of the Registrar not to allow Professor Tzannes to give expert evidence in the proceedings. On this basis, the Respondent Council proceeded to advance its argument that the Registrar’s decision of 8 August 2017 – that is, declining to allow Professor Tzannes to give expert evidence in the proceedings – ought to estop the Applicant’s motion from being granted.

20. The Respondent Council’s argument on this threshold issue can be shortly stated. At the directions hearing of 8 August 2017, the Registrar was faced with resolving a dispute between the parties as to whether Professor Tzannes ought to be allowed to give expert evidence in the proceedings. At this hearing, the Respondent Council briefly submitted that he should not be allowed to do so because his expert evidence would unnecessarily duplicate the evidence of the Applicant’s town planner Mr Brett Daintry. As has been mentioned, the Registrar decided to decline to make an order allowing the expert evidence of Professor Tzannes to be adduced.

21. From this point, according to the Respondent Council, the only valid option for the Applicant to adduce this expert evidence was to apply to the Court to review and overturn the Registrar’s decision under rule 49.19 of the Procedure Rules. In this respect, the Respondent Council noted that the present motion is not such an application and that the entitlement of the Applicant to review the decision by right has now expired (being more than 28 days after 8 August 2017): r 49.20.

22. In these circumstances, the Respondent Council submitted that it is not open to the Applicant to circumvent the Registrar’s decision, and effectively launch a collateral attack on that decision, by re-agitating the issue for the Court to consider afresh by way of a Notice of Motion. The Respondent Council claimed that the Applicant is estopped from obtaining the relief that she seeks in the present motion because the grant of this relief would overturn the Registrar’s decision in a way that impermissibly bypasses the established, time-limited, process for so doing.

23. For completeness, the Respondent Council submitted that if the Court was to consider the present motion as an application to review the decision of the Registrar under r 49.19 (and, therefore, grant the necessary leave for an extension of time), the Court should not exercise its discretion to overturn the Registrar’s decision. The Court should not do so because none of the following have been demonstrated: an error of law; a House v The King error; a material change of circumstances; or material fresh evidence: citing Tomko v Palasty (No 2) at [8]. Moreover, the Respondent Council said that the principle of finality should be borne in mind by the Court.

The Applicant’s rebuttal

24. The Applicant denied that the motion constitutes a de facto review of, or collateral attack on, the Registrar’s decision of 8 August 2017. Rather, the Applicant submitted that the motion is a stand-alone, “originating motion” to adduce the evidence of an expert not named in the existing directions made in the proceedings.

25. The Applicant conceded that the Registrar made a decision to decline to make an order allowing the expert evidence of Professor Tzannes to be adduced. The Applicant does not challenge that decision or say that the Registrar made the wrong decision. However, the Applicant submitted that the Registrar’s decision was not a final decision to prevent this expert evidence from being adduced in these proceedings if the Applicant was to subsequently come to the Court with evidence to show that the expert evidence relates to a real issue in the proceedings and is reasonably required to resolve that issue.

26. In support of this position, the Applicant submitted that this is recognised in the opening words of Order 4(b) made by the Registrar: “Unless the Court otherwise orders, expert evidence may not be adduced at the hearing otherwise than in accordance with the directions made by the Court…”.

27. Thus, the Applicant concluded that she is not estopped from obtaining the relief that she seeks in her motion and denied that she is seeking to disturb the Registrar’s decision to decline, at that point in the proceedings, to make an order allowing the expert evidence of Professor Tzannes to be adduced.

The merits of the motion

The Applicant’s claim that the motion should be allowed

28. The Applicant’s claim that the motion should be allowed is predicated on her principal argument that the expert architectural evidence of Professor Tzannes is reasonably required for the Applicant to respond to three contentions in the Respondent Council’s Statement of Facts and Contentions. These contentions are that the proposed building: is of an excessive height (‘Contention 1’); is of an excessive bulk and scale (‘Contention 2’); and is the subject of public interest concerns (‘Contention 8’). More specifically, the Applicant referred to one particular for each of these contentions:

Contention 1, Particular (d): “…It is considered that the approved height does [not] have any restrictions upon the amenity or useability of the dwelling”;

Contention 2, Particular (a): “The bulk and scale of the development is inconsistent with the Desired Future Character of the Vaucluse West Precinct (B1.10.2 under [Woollahra Development Control Plan 2015]) …”; and

Contention 8, Particular (b): “There is no justification for the increased height of the building.”

29. With respect to the above identified particular for Contention 2, the Applicant referred to the following passage from B1.10.2 of the Woollahra Development Control Plan 2015:

The Vaucluse West precinct is to maintain the evolution of low density residential development through the introduction of well-designed contemporary dwelling houses that retain views of the harbour from public spaces and provide for view sharing from private properties.

30. On this basis, the Applicant submitted that the above mentioned particulars concern architectural matters (that is, matters of design excellence, architectural integrity and internal amenity) rather than town planning matters. Consequently, it was said that these matters can only be properly addressed by expert architectural evidence, as demonstrated by Professor Tzannes’s statement setting out the evidence that he would give in the proceedings. For this reason, the Applicant argued that this expert evidence is reasonably required.

31. Moreover, as with the Applicant’s visual impact expert, Mr Richard Lamb, the Applicant submitted that Professor Tzannes would only give evidence on a narrow range of discrete issues (as identified above). Hence, the Applicant denied that the inclusion of Professor Tzannes would lead to duplication, practical issues at the hearing, or result in the proceedings becoming significantly lengthier or more expensive.

The Respondent Council’s claim that the motion should be dismissed

32. In essence, the Respondent Council’s position with respect to the Applicant’s motion is that the Applicant has failed to establish that the expert evidence of Professor Tzannes is reasonably required for these proceedings. This was said to particularly be the case in circumstances where the motion, if granted, would likely cause unnecessary time delays and additional costs. Moreover, the Respondent Council also claimed that the Court ought to exercise its discretion not to make the orders sought because there is an unresolved awkwardness in the Applicant’s architect giving expert evidence in these proceedings and in light of the delay of the Applicant in (re)applying to adduce such evidence.

33. First, the Respondent Council denied that the expert evidence of Professor Tzannes is reasonably required because: the relevant issues identified by the Applicant are matters of town planning (as a broad discipline of expertise) rather than architectural evidence; there would be inevitable (and undesirable) duplication between the evidence of the Applicant’s town planner and Professor Tzannes; and the Class 1 Application already features a detailed architectural design statement authored by Professor Tzannes. Furthermore, the Respondent Council observed that, if architectural evidence is necessary, the Commissioner presiding over the substantive hearing is empowered to obtain assistance in this respect: s 38 of the Land and Environment Court Act 1979.

34. The Respondent Council amplified these submissions by arguing that the provision of such evidence would be unreasonable because it may require the Respondent Council to obtain its own urban design/architectural expert and would likely create practical problems for the conduct of the proceedings. Consequently, the Respondent Council said that it was likely that the proceedings would be marred by unnecessary costs and time delays.

35. Secondly, the Respondent Council submitted that the Court would be wary about granting the Applicant’s motion in circumstances where the relevant expert has been the Applicant’s ongoing project architect. Although Mr Cottom for the Respondent Council explained, in fairness, that the circumstances were not strictly apposite, he nevertheless submitted that there was some support to be found for his submission in the ruling of Lloyd J in Willoughby City Council v Transport Infrastructure Development Corporation (No 2) [2008] NSWLEC 238 at [11]:

In my opinion, the report of Mrs de Carvalho should be rejected. She is not independent from a party but, on the contrary, is an employee of a party. Moreover, she appears to have been heavily involved in [the] proposal for the development of the land in question and so is not independent from the matter in dispute. Finally, as I have already noted, the report itself contains not only facts but also partisan opinions, which demonstrate that she has clearly adopted the role of an advocate for a party.

36. In this respect, the Respondent Council noted that the instructions provided to Professor Tzannes (to guide the preparation of his statement setting out the evidence that he would give in the proceedings) are unknown.

37. Finally, the Respondent Council submitted that, in exercising its discretion as to whether to make the orders sought in the Applicant’s motion, the Court should take into account the delay of the Applicant in filing the motion. Relevantly, the Respondent Council noted that whilst the Respondent Council filed its Statement of Facts and Contentions on 7 August 2017, it was not until 8 September 2017 that the Applicant’s motion was filed. Indeed, this was said to amplify the Respondent Council’s argument that the motion, if granted, would likely cause unnecessary time delays and additional costs.

Consideration

38. In determining the appropriate course in response to the Applicant’s motion, I have fully considered the evidence placed before the Court (none of which was before the Registrar on 8 August 2017), including the affidavit of Ms Vatala sworn 8 September 2017 and the annexures thereto (including the statement of proposed evidence prepared by Professor Tzannes) and a photo montage of the proposed dwelling (Exhibit A). I have also considered the Vaucluse West Precinct provisions in the Woollahra Development Control Plan 2015 and the submissions of both parties. Ultimately, I have decided to determine the application in favour of the Applicant, and make the orders sought, on the following basis.

39. In considering any interlocutory application, a fundamental general principle must be borne in mind: namely, “they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed…”: Tomko v Palasty (No 2) at [10]. The qualifying words to that passage which follow are relevantly important: “unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence”. In this case, although the Registrar considered the issues regarding evidence to be called, it was on the basis of the (limited) material then available. Importantly, the Registrar’s orders, with the words “unless the Court otherwise orders”, left an avenue open to come back to the Court regarding issues of expert evidence if the circumstances warranted it. Further, the usual liberty to restore was provided in the Registrar’s Order 14.

40. Whilst the Applicant’s motion seeks similar orders to those that the Registrar declined to make on 8 August 2017, the motion does not seek to challenge or attack the Registrar’s decision of 8 August 2017. More specifically, the Applicant does not assert that the Registrar made anything but a correct decision (legally and on its merits) by, presumably, concluding that there were insufficient grounds – at that point in time – for the Court to be satisfied that the expert evidence of Professor Tzannes was reasonably necessary in the proceedings. In seeking to understand what material was before the Registrar and whether the issues regarding expert evidence were sufficiently canvassed in the documentation, it is noted that this decision was made (early in the morning) in the very relevant context that the Applicant and the Registrar had only received the Respondent Council’s Statement of Facts and Contentions after the close of business the evening before.

41. In accordance with standard practice, a registrar generally does not provide written reasons for procedural orders such as those made on 8 August 2017. Therefore, in the case of a review of such a decision, the Court can only surmise as to the reasons for the decision. In circumstances such as those presently before the Court, where there is not a review as such but rather a referral by the Registrar on her own motion, a greater degree of flexibility is available to consider new material, particularly in circumstances where leave to come back to the Court to add to or vary orders already made is contemplated within the original orders. It is significant that the Registrar’s orders, which flowed from her decision to decline to include Professor Tzannes’s expert evidence, explicitly recognise that the Court might vary the orders with respect to expert evidence. Indeed, the relevant procedural rules and guidelines contemplate that a party may demonstrate to the Court that additional experts are reasonably necessary after directions for expert evidence have been made.

42. Hence, the question for the Court is whether, on this fresh motion referred to the Court, there is material now before the Court which justifies a variation of, or addition to, the original orders concerning expert evidence. As such, exercising its discretion effectively via the avenue created by the Registrar, the Court is not required to determine whether the Registrar was right or wrong in making the original orders. Rather, the Court is charged with the responsibility to examine the material now before it and determine whether an additional order with respect to expert evidence ought to be made.

43. The Registrar on 8 August 2017 did not have the benefit of the Applicant’s Statement of Facts and Contentions in Reply nor have an opportunity, critically, to read the statement of proposed evidence prepared by Professor Tzannes. In this regard, although an architectural design statement prepared by Professor Tzannes (dated 23 January 2017) was part of the documentation accompanying the modification application, I consider that this is of a different nature to the statement of proposed evidence, which was prepared for the proceedings essentially in response to the Respondent Council’s stance (as is apparent in its Statement of Facts and Contentions). Further, with respect to the Respondent Council’s Statement of Facts and Contentions, in fairness to the Registrar, unless she truly “burnt the midnight oil”, which should not be a reasonable expectation, she most probably had a limited opportunity to review that Statement before her 9.00 am directions hearing (given that it had been filed the evening before the hearing after the close of business, when the registry was closed). The Court has now had the opportunity to consider that document afresh in the context of the further material which I consider to be relevant.

44. The Court has had the advantage of both considering all the material now before it which concerns architectural design issues and hearing the submissions of counsel for the Applicant, Mr Ireland, setting that material in context, specifically the above mentioned relevant provisions of the Woollhara Development Control Plan 2015. The Court is satisfied that the integrity of the architectural design, especially with respect to the internal design objectives of the proposed dwelling in the context of its interrelationship with its external setting, will be an important consideration in this case. Accordingly, the Court agrees with Mr Ireland that if such issues were subsumed into a more general town planning analysis, it would probably deprive the commissioner who will hear and determine the matter of evidence that will likely be material.

45. The Applicant, via its motion, comes to the Court with a new application regarding expert evidence and has satisfied the Court that there is now a sufficient basis for the Court to decide that the expert evidence of Professor Tzannes is reasonably necessary for a proper consideration of the issues when the Class 1 appeal is heard. The Applicant does not have to satisfy the Court that the architectural evidence is critical to its case, nor even that it would be persuasive. Rather, in the circumstances of such an interlocutory application, it is sufficient that this evidence will likely be reasonably necessary to resolve the issues in dispute. It is the commissioner hearing the Class 1 appeal who will determine whether the architectural evidence is persuasive. The Applicant’s motion is not a review of the Registrar’s decision in disguise or a collateral attack of that decision, rather the motion represents a new and persuasive application to the Court, which has clearly been developed after a more careful deliberation of what evidence is necessary to properly respond to the Respondent Council’s facts and contentions.

46. As has already been indicated, the Court is satisfied that the architectural design statement by Professor Tzannes, which appears in the Class 1 Application bundle of documents, does not and cannot fulfil the need for an analysis of, and targeted response to, the Respondent Council’s contentions pertaining to architectural matters. Given my assessment of this new material and the question that I must resolve regarding the required expert evidence, I do not accept that the Applicant’s motion gives rise to issue estoppel as suggested by the Respondent Council.

47. In deciding to allow the Applicant to call evidence from Professor Tzannes, I do not believe that the Respondent Council will be prejudiced, nor do I believe that the requirement for the just, quick and cheap resolution of the issues in dispute will be frustrated. The orders that I will make set the limited parameters within which the Professor will give evidence and will ensure that the risk of duplication of expert evidence does not materialise. Further, there is sufficient time (without needing to alter the hearing timetable) for the Respondent Council, should it wish, to arrange its own urban design/architectural expert evidence to address Professor Tzannes’s evidence. In short, there are no practical issues which would preclude the making of the proposed orders.

Costs

48. Given the outcome of this motion and after considering all of the relevant circumstances, I have decided that it is not appropriate to make an order as to costs.

Orders

49. The Court:

1. Orders that Professor Alec Tzannes is permitted to give evidence in the proceedings in relation to contentions 1, 2 and 8 of the Statement of Facts and Contentions filed by Woollahra Municipal Council on 7 August 2017;

2. Notes that the expert evidence of Professor Alec Tzannes will be primarily directed at particular (d) of Contention 1, particular (a) of Contention 2, and particular (b) of Contention 8 of the Statement of Facts and Contentions filed by Woollahra Municipal Council on 7 August 2017;

3. Grants leave for Woollahra Municipal Council to, by way of Online Court, apply to adduce urban design or architectural expert evidence by 29 September 2017;

4. Directs the parties to, on 3 October 2017, submit to the Court, by way of Online Court, proposed consent orders (or competing orders) with respect to the consequential directions for Professor Alec Tzannes and the Respondent Council’s corresponding expert (if any) to give their expert evidence; and

5. Directs the Applicant to, on 3 October 2017, serve and file an amended Schedule D form that includes a new column for the “area of expertise” of “architecture and/or urban design”.

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Decision last updated: 16 April 2018