Meriton Apartments Pty Limited v Council of the City of Sydney (No 2)

[2010] NSWLEC 76

Land and Environment Court

of New South Wales

CITATION:

Meriton Apartments Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 76
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Meriton Apartments Pty Limited

RESPONDENT
Council of the City of Sydney

FILE NUMBER(S):

40293 of 2009; 40957 of 2009

CORAM:

Pepper J

KEY ISSUES:

PRACTICE AND PROCEDURE :- whether a site view necessary for Court to understand facts in issue or the evidence in the proceedings - application refused

LEGISLATION CITED:

Evidence Act 1995
Local Government Act 1993
Roads Act 1993

DATES OF HEARING:

17 May 2010

EX TEMPORE JUDGMENT DATE:

17 May 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Russell QC with Mr M Seymour
SOLICITORS
Meriton Group

RESPONDENT
Mr M Leeming SC with Ms J Shepard
SOLICITORS
Council of the City of Sydney

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

17 May 2010

40293 of 2009 Meriton Apartments Pty Limited v Council
40957 of 2009 of the City of Sydney (No 2)

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: This is an application for the Court to attend a view of three construction sites the subject of fees charged by the Council of the City of Sydney (“the council”) the subject-matter of these proceedings.

2 Meriton Apartments Pty Ltd (“Meriton”), makes an application that the Court visit:

(1) 420 Pitt Street, Haymarket;

(2) 4-10 Campbell Street, Haymarket; and

(3) 5 Hutchinson Walk, Zetland.

3 The application is opposed by the council.

Factual Background and Subject-Matter of the Proceedings

4 By way of amended summons filed 11 December 2009 (the original summons was filed on 8 September 2009), Meriton seeks judicial review of Work Zones Fees (“the Fee”), which is a fee levied by the council under either the Local Government Act 1993 (“the LGA”) and/or the Roads Act 1993.

5 Meriton says that the Fee is invalid and seeks orders for the recovery of approximately $430,513 it has paid to the council between 17 April 2007 and 23 February 2010.

6 One of the bases upon which challenge to the Fee is made by Meriton is that of unreasonableness, that is to say, that the Fee has been set significantly in excess of the costs underpinning it. Another basis is that no additional service is provided by the council after 12 months warranting a substantial increase in the Fee after that period. Meriton also submits that the increase in the Fee for zones in place longer than 12 months is evidence that the Fee is an impermissible device or penalty that is intended to influence the behaviour of developers when they carry out development. Furthermore, because the Fee involves a substantial degree of revenue being raised without reference to the cost involved in providing specific services, it is not a fee at all but is a tax, and is thus not a lawful exercise of power under the LGA or the Roads Act.

Applicable Legal Principles

7 The power of a judge to attend a view is contained in s 53(1) of the Evidence Act 1995. Some of the discretionary factors the Court must take into account in deciding to make an order that a view be held are set out in s 53(3) of that Act.

8 In relation to these factors, it was not in dispute that the view would not delay the finalisation of the proceedings inasmuch as it will comfortably finish within the four days allocated to hear the matter (s 53(3)(c)).

Submissions With Respect to Discretionary Factors

9 Meriton submitted that a view would assist the Court in understanding the evidence and in resolving the factual issues between the parties (s 53(3)(b) of the Evidence Act). In particular, Meriton emphasised that a view would assist the Court in determining whether the services the council provided in return for the Fee were justified, which in turn would necessitate a consideration of the impact of the construction at each of the sites on the amenity of the local area, the latter of which could be demonstrated by an inspection of the three sites in question.

10 Meriton submitted that a good illustration for the necessity of a view was in relation the Zetland site. A view of this site would reveal that the area was quiet (unlike the Haymarket sites), that there were car parking meters only on one side of the street giving access to the site and that the site was at the end of a cul de sac. These features would assist the Court in determining the impact of the construction site on the local environment.

11 The council submitted that a view was not required because:

(a) the issues in the dispute were largely legal;

(b) a view would not assist the Court on the core evidential issue of the costing of the Fee;

(c) there were photographs of the two Haymarket sites and in relation to the Zetland site, plans revealed there was no dispute as to the location of the car parking meters nor that the site was positioned at the end of a cul de sac; and

(d) that in relation to one of the Haymarket sites, the construction had been completed for at least a couple of years. Thus, presumably, the site had materially altered (s 53(3)(e) of the Evidence Act ) and/or any inspection of it could therefore be misleading or confusing (s 53(3)(c) of that Act).

Conclusion and Order

12 I agree with the submissions of the council.

13 In my view, notwithstanding that the hearing will comfortably conclude within the time allocated to it, the attendant disruption to the proceedings and associated costs do not, in my opinion, justify an inspection of the three sites (or even only the Zetland site) given the extremely limited assistance the Court is likely to receive from such a view.

14 Given the predominantly legal nature of the issues to be determined, involving, as they do, questions of statutory construction, the photographic evidence that exists in relation to the two Haymarket sites and the diagrammatic evidence of all three sites before the Court, I am not persuaded that in all the circumstances a site inspection of any or all of the three locations would assist in resolving the few issues of fact that the proceedings involve or in understanding the evidence, particularly that relating to costing.

15 I therefore dismiss the application.

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18/05/2010	-	Case Title - (No 2) changed to (No 3) - Paragraph(s) Cover sheet and first page
18/05/2010	-	Previous amendment rectified - not necessary - Paragraph(s) Cover sheet and first page