Mosca v Roads and Traffic Authority of NSW
[2007] NSWLEC 79
•20 February 2007
Land and Environment Court
of New South Wales
CITATION: Mosca v Roads and Traffic Authority of NSW [2007] NSWLEC 79 PARTIES: APPLICANT:
RESPONDENT
Franco Mosca
Roads and Traffic Authority of NSWFILE NUMBER(S): 30121 of 2003 CORAM: Biscoe J KEY ISSUES: Evidence :- Leave to adduce further evidence after Court of Appeal remits resumption proceedings for compensation to be assessed according to law - reception of further evidence a matter for discretion - principles involved - considerations relevant to the exercise of the discretion. CASES CITED: Akins v National Australia Bank (1994) 34 NSWLR 155;
Autodesk Inc v Dyason (1992-1993) 176 CLR 300;
Bailey v Marinoff (1971) 125 CLR 529;
Carriage v Stockland Development Pty Ltd (No 5) [2004] NSWLEC 674;
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134;
Coulton v Holcombe (1986) 162 CLR 1;
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207;
Knudsen v Kara Kar Holdings Pty Ltd (2000) 52 NSWLR 254;
Minister Administering the Heritage Act 1977 v Haddad (NSWCA, 4 February 1991, unreported);
Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of New South Wales [2005] NSWLEC 419;
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374;
Nasser v Roads and Traffic Authority of NSW [2006] NSWLEC 100;
Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 100;
Roads and Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335;
Torrisi v Roads and Traffic Authority of NSW [2006] NSWLEC 308;
Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471;
Wollong Pty Ltd v Shoalhaven City Council (No 2) (2002) 122 LGERA 178DATES OF HEARING: 29 January 2007
DATE OF JUDGMENT:
20 February 2007LEGAL REPRESENTATIVES: APPLICANT:
Mr J Webster SC and Mr J Whyte, barrister
SOLICITORS
ThorntonsRESPONDENT:
Mr J Maston, barrister
SOLICITORS
Corrs Chambers Westgarth
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
20 February 2007
30121 of 2003
JUDGMENTFRANCO MOSCA v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES
1 HIS HONOUR: This is a notice of motion by the applicant, Mr Mosca, for leave to adduce further evidence in the nature of expert flooding/drainage evidence and expert town planning evidence at the further hearing of this matter, following remittal by the Court of Appeal in Roads and Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335.
BACKGROUND
2 On 4 October 2002 the respondent (RTA) resumed part of Mr Mosca’s land at Prestons near Liverpool for the purposes of the Roads Act 1993 (NSW) and the construction of part of the M7 Motorway for the Western Sydney Orbital (WSO). Prior to the resumption his land consisted of a rectangular block 50m × 400m between Ash Road on the west and Skipton Lane on the east. Maxwells Creek, which had become a man made watercourse, ran through the centre of the block. The resumed land which comprised lot 5 in DP 1045043, on the eastern side of Maxwells Creek, severed his remaining land into two blocks, one fronting Ash Road, and the other Skipton Lane.
3 The land was zoned Residential 2(a), Special Uses 5(a), Drainage and Recreation – Public 6(a) under the Liverpool Local Environmental Plan 1997, but these zonings dated from Liverpool LEP No 237 gazetted on 15 May 1992. However, unlike other land zoned Residential 2(a) to the east and west, the subject land and other land in the Maxwells Creek corridor had not been developed for residential use prior to the resumption.
4 Mr Mosca’s claim for compensation was heard by Bignold J, who assessed the market value of the acquired land at $941,260 and the compensation for injurious affection of the retained land at $278,740. A claim for compensation for severance was abandoned, and a claim for compensation for disturbance was rejected. The RTA appealed from these awards.
5 The trial judge held that the land along the Maxwells Creek corridor remained undeveloped because of the blighting effect created by proposals for the WSO to link the M5 Motorway at Prestons with the M2 Motorway at Baulkham Hills. His Honour held that the planning blight affecting the subject land had not only prevented the earlier realisation of its development potential, but had also caused the owner to lose certain opportunities that earlier development offered.
6 The Court of Appeal held that the lost opportunities identified by the trial judge were irrelevant in determining the market value of the resumed land and that his Honour erred in law in holding otherwise. It held that those errors led to, and were compounded by, his error of law in assuming that the land acquired was in a condition which would allow its development for residential purposes in the ordinary course and that this in turn affected his decision to deduct nothing for the cost of fill and removal. It held that the errors of law were, in total, material.
7 The Court of Appeal relevantly made the following orders:
(1) Appeal allowed with costs.
- (2) Awards of compensation for the market value of the land taken and for injurious affection set aside.
(3) The proceedings are remitted to the Land and Environment Court for such compensation to be assessed according to law.
8 The Court of Appeal said at [73] “The reception of further evidence will be a matter for the discretion of the Judge presiding at any further hearing”.
9 The effect of the orders made by the Court of Appeal, construed in light of its dictum concerning further evidence, is that the assessment referred to in order 3 is to be carried out according to law – that is, according to the judgment, together with the relevant law – and that such assessment is to be made on the evidence that was before Bignold J unless, in the exercise of its discretion, this Court gives leave to adduce further evidence. That is why it was necessary for the applicant to make this application for leave to adduce further evidence.
10 Even if the Court of Appeal had said nothing about discretionary admission of further evidence, this Court would have a discretion whether to admit further evidence: Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 387. In that case a judge of the Federal Court (Sackville J) had allowed an appeal and remitted the matter to the AAT to be dealt with “in accordance with law”. Subsequently, the Full Federal Court held: “The reference to ‘law’ is of course a reference to the judgment of his Honour together with the relevant statutory and common law… If Sackville J had intended to limit the introduction of further evidence it would have been a simple matter for him to have specifically so directed… His Honour did not do so and he expressly declined to give a general direction that the AAT should not receive further evidence. Accordingly, the intention and effect of the order, in our view, was that the whole matter was remitted to the AAT, without limitation as to the presentation of further evidence or as to the scope of the matter to be dealt with”. Despite this finding the Full Court held that the direction did not require a rehearing of the application on remitter. Rather, the Court found that “the order of Sackville J left to the discretion of the AAT the question whether it should allow a ‘rehearing’, and to what extent”: at 389. The Court noted (at 389) that “it was open to [the AAT], if [it] thought it appropriate in all the circumstances, to act on the evidence put before the Tribunal on the previous occasion… and not to permit further evidence to be adduced…”. It was held that the AAT had erred in law in acting on the basis that it was bound by Sackville J’s direction to conduct a full rehearing of the matter with further evidence.
11 This case and a case such as Morales are to be distinguished from cases where a remittal order by an appellate court does not inhibit a party calling further evidence as of right, in particular where the case has been remitted for “re-hearing”. It has been said that where an appellate court orders that the case be “’remitted for re-hearing’, the whole proceedings are returned to the court of first instance but a new hearing is to be undertaken”: Knudsen v Kara Kar Holdings Pty Ltd (2000) 52 NSWLR 254 at 259 [42] per Austin J. In Minister Administering the Heritage Act 1977 v Haddad (NSWCA, 4 February 1991, unreported) the Court of Appeal had allowed an appeal from a judge of this Court and made an order that the matter be returned to this Court for what was described as a “re-hearing”. On the remitter the judge held that the re-hearing did not entitle a party to adduce further evidence as of right. On appeal, the Court of Appeal held that his Honour’s ruling was incorrect. Priestley JA commented “The fact that the rehearing is in my view a new proceeding in which the parties are to be at liberty to put whatever material they wish before the Court does not mean that there are not various resources available to the Court by which the real issues between the parties can be brought to view and means adopted by which the unnecessary calling of evidence or proof in formal or quasi-formal ways need not be gone through”.
12 The considerations relevant to the exercise of the discretion are, in my view, normally similar to those which are to be taken into account when a party applies to re-open a case and adduce further evidence after judgment has been delivered. Such leave to re-open should only be granted “in very limited circumstances”: Nasser v Roads and Traffic Authority of NSW [2006] NSWLEC 100 at [14] per Pain J citing De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 and Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of New South Wales [2005] NSWLEC 419. As Mason CJ observed in Autodesk Inc v Dyason (1992-1993) 176 CLR 300 at 302, it is a jurisdiction which must be exercised “with great caution”.
13 In circumstances where leave is sought to re-open the proceedings following delivery of judgment, the appeal rules relating to fresh evidence, whilst not determinative, provide a “useful guide” as to the manner in which the discretion should be exercised: Smith v NSW Bar Association (1992) 176 CLR 256 at 266-7; Carriage v Stockland Development Pty Ltd (No 5) [2004] NSWLEC 674. As stated by the majority of the High Court in Smith at 266-7: “If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application... But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete… or one in which reasons for judgment have been delivered... In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.” The appeal rule principles favoured in Smith require that, in general, three conditions must be met before fresh evidence can be admitted on appeal: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that there must be a high degree of probability that there would be a different verdict; and (3) the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 per Clarke JA (Sheller JA agreeing).
14 The rationale for these limitations upon the re-opening of cases following the handing down of judgment is referred to by Mansfield J in his judgment in Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 100; (2001) 78 ALD 151 at [25], where his Honour cites the dicta of the High Court in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 141-142:
- “ In the ordinary course, as their Honours in Quade pointed out at CLR 141, the reconciliation of the demands of justice and the policy that there be an end to litigation at least prima facie dictates that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Their honours said:
- “Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.”
15 The boundaries of the Court’s jurisdiction to re-open after judgment has been delivered, but before the entry of perfected orders, have been summarised in terms of: “the importance of the public interest in the finality of litigation; exercise of the jurisdiction with great caution; there being no neglect or default on the applicant’s part that he or she has not been heard on the issue; not exercising the jurisdiction for the purpose of re-agitating arguments already considered by the court, providing a backdoor method by which unsuccessful litigants can seek to re-argue their cases; not exercising the jurisdiction simply because the party seeking a rehearing failed to present the argument in all its aspects or as well as it might have been put”: see Allars, Perfected Judgments and Inherently Angelical Administrative Decisions: The Powers of Courts and Administrators to Reopen or Reconsider their Decisions, (2001) 21 Australian Bar Review 50 at 53, where the authorities are cited. Once an order of the court has been entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it, subject to certain exceptions: Bailey v Marinoff (1971) 125 CLR 529 at 539.
16 Leave to re-open after judgment had been delivered was refused in Wollong Pty Ltd v Shoalhaven City Council (No 2) (2002) 122 LGERA 178 and Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of NSW [2005] NSWLEC 419. In the first case, Talbot J said at [49]: “The compensation figures were determined relying upon extensive material in the public arena. The Court would need some convincing that a hypothetical purchaser would have been likely to have access to the further material upon which the applicant seeks to rely for the purpose of heightening the prospect of future re-zoning for residential purposes at the date of acquisition”. In the second case, the applicant sought to bring evidence from a new valuer who had conducted a different analysis to that undertaken by the valuers who gave evidence during the hearing. McClellan CJ said at [14] – [16]:
14 The principles in relation to this aspect of the application were
- comprehensively considered by the High Court in Smith . In the joint judgment (page 266) it was made plain when considering such an application that it is relevant to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, that will normally be decisive. But if that is not the case, it is relevant to enquire whether the hearing is complete, if the reasons for judgment have been delivered and whether or not there may be embarrassment or prejudice to the other side by allowing the matter to be reopened. If that is the case then the rules relating to fresh evidence are suggested as providing a useful guide to the exercise of discretion as to whether or not the matter should be reopened.
- 15 In the present case it is apparent that a decision was made by
- counsel that the evidence that was available at the trial was sufficient and appropriate for the resolution of this issue. Although I infer that the further report which is now sought to be tendered was not available and the approach taken by that valuer had not be [sic] identified, nevertheless, it is plain that a forensic decision was made that the evidence which was available was sufficient to resolve the issue.
- 16 It will be the case in many valuation matters that a fresh mind may identify a different approach with a potentially different outcome to the valuation problem. The fact that this has occurred in this case is not a reason, in my opinion, to allow the applicant to reopen.
17 The discretionary considerations where leave is sought to adduce further evidence after judgment are stricter than where leave is sought before judgment and after evidence has closed. In the latter situation “The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not to call the witness in the party’s case was a deliberate one”: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 per Clarke JA (Mahoney and Meagher JJA agreeing). In Nasser v Roads and Traffic Authority of NSW [2006] NSWLEC 100 Pain J acceded to an application for leave to re-open after evidence had closed and before judgment in a matter in class 3 of the Court’s jurisdiction. Her Honour said at [17]: “The primary consideration I need to take into account is what is fair in the circumstances given that it is also important for the Court to be informed about all relevant matters (see Land and Environment Court Act 1979 section 38(2))”. This expression “fair in the circumstances” may be understood as synonymous with “the interests of justice” in Nweiser.
18 In the present case, the applicant sought leave before judgment to re-open to adduce part of the expert flooding/drainage evidence which it now seeks to adduce, but not the other evidence. However, in the unusual circumstances recounted below, the application was not heard and determined by Bignold J. Consequently, in my opinion, the discretionary considerations applicable to leave to re-open before judgment should now apply to the application to adduce that same expert flooding/drainage evidence, whereas the discretionary considerations applicable to leave to re-open after judgment should apply to the other further evidence that the applicant now seeks leave to adduce.
THE PROPOSED FURTHER EXPERT FLOODING/DRAINAGE EVIDENCE
19 The trial before Bignold J took place on days in November 2003, and February and June 2004. Judgment was delivered on 3 December 2004.
20 The applicant’s notice of motion seeks an order that he be granted leave to adduce expert flooding/drainage evidence from Andrew Bewsher on item 2 of the issues set out in the applicant’s statement as to additional evidence filed on 11 August 2006. Item 2 of that statement states: “Expert evidence concerning flooding and drainage issues which accords with a consistent approach to such issues reached in other similar proceedings”.
21 This further evidence is contained in an affidavit sworn by Mr Bewsher on 2 November 2004, and in his supplementary statement of evidence dated 9 October 2006. These documents evidence his agreement, in four other cases heard in this Court, with Associate Professor James Ball, the respondent’s expert flooding and drainage engineer, concerning the width of the riparian zone and development potential of neighbouring lands (and, consequently, the applicant’s land). The supplementary statement also refers to other matters. There was no evidence of any such agreement before Bignold J. It was after the evidence closed and before judgment was delivered in the present case that Mr Bewsher gave expert evidence on flooding and drainage issues in those four other proceedings, which related to the compulsory acquisition by the RTA of nearby land in the area of Maxwells Creek for the purpose of construction of the WSO. In all those proceedings the expert flooding/drainage evidence called in opposition to his evidence was given by Associate Professor Ball.
22 On 3 November 2004 the applicant filed a notice of motion in these proceedings seeking leave to re-open its case in respect of the expert flooding/drainage evidence. The supporting affidavit was that of Mr Bewsher sworn on 2 November 2004 which has also been read before me. He stated in paras 5 – 9:
6. In Liverpool CC v RTA [2004] NSWLEC 543, Professor Ball and I agreed:5. Annexed and marked “A” are copies of 3 joint experts’ reports dated 3 August 2004 (and the ‘Figures’ referred to therein) in the matter of N & D Baric v RTA . It was agreed that my regional creek corridor proposal (which is the same as that proposed in the subject proceedings) was acceptable to the Department of Infrastructure Planning and Natural Resources (“DIPNR”). Further, it was agreed that the creek corridor, including the riparian zone, should be 70m wide.
- …that having regard to the requirements of …(DIPNR) and good engineering practice a developer purchaser would be advised that a 70m riparian zone would be required in respect of Maxwells Creek.
8. Annexed and marked “C” is a copy of the joint experts’ report dated 11 October 2004 (and the ‘Figures’ referred to therein) in the matter of Tom Baric v RTA . It is agreed that the width of the creek and the riparian zone can be 70m wide, and further that my creek corridor proposal would be acceptable to DIPNR. In addition, Professor Ball and I agreed at paragraph 6(b):7. Annexed and marked “B” is a copy of the joint experts’ report dated 23 September 2004 (and the ‘Figures’ referred to therein) in the matter of Cannavo & Busa v RTA . It was agreed by Professor Ball and me that the total width of the creek and the riparian zone can be 70m wide.
- …if the whole area between Ash Road and Skipton Lane was “released for development” and Mr Bewsher’s regional corridor proposal had been adopted and designed by Council, it is likely that the majority of the area would be developed within two years.
23 On the return date of the notice of motion on 10 November 2004, it was set down for hearing before Bignold J on 7 December 2004. Mr James Grellman, the solicitor with the conduct of this matter on behalf of the applicant, gave unchallenged evidence before me that on 29 November 2004 Bignold J spoke to him and to the solicitor for the respondent, Mr Ventris, to the effect that he was ready to deliver judgment; that he noted that the applicant had filed a notice of motion; that he did not know what the notice of the motion was about; and that he suggested that he give judgment and stay his orders and they could then decide if it was necessary to proceed with the notice of motion. He asked that the solicitors consider this and call his associate the next day with their decision. The next day, Mr Grellman telephoned Bignold J’s associate and said words to the effect that “We agree with his Honour’s suggestion. We will wait for his Honour to deliver Judgment before we decide whether to proceed with the Notice of Motion”. On 1 December 2004 the RTA’s solicitors wrote to the applicant’s solicitors stating: “In circumstances where the Applicant has agreed not to pursue the Notice of Motion dated 2 November 2004, until such time as the Applicant has considered the preliminary findings of His Honour, we consider it appropriate that the parties agree to a revised timetable for the filing and serving of evidence in relation to the Notice of Motion. Please confirm that you agree with this course of action and advise us of an appropriate revised timetable”.
24 On 3 December 2004 Bignold J delivered judgment. Mr Grellman appeared in Court to take the judgment. His unchallenged evidence before me was that at the time the judgment was delivered, his Honour said words to the effect “The Judgment is delivered with the knowledge that pending in Court there is a Notice of Motion seeking to re-open the case. I confirm I spoke to the solicitors about whether they would consent to Judgment being delivered in the interim. The parties would be in a better position to determine their position in relation to the Notice of Motion. The orders are subject to resolution of the Notice of Motion. The Judgment and reasons would not seem to indicate a need to re-open. The Notice of Motion is listed for hearing next Tuesday 7 December 2004 at 2:00 pm. Whether it proceeds is a matter for the parties”.
25 Following consideration of the judgment, Mr Grellman received instructions from the applicant not to proceed with the notice of motion. On 6 December 2006 he wrote to the respondent’s solicitors referring to the judgment and stating “After consideration of same we agree with his Honour that there is no need for the Applicant to proceed with the Notice of Motion to re-open the Applicant’s case. Our instructions are to have the Notice of Motion dismissed with no order as to costs. Please advise us of your instructions in this regard”. On 7 December 2004 by consent, and in accordance with short minutes of consent orders signed by the solicitors for the parties, the Court ordered that the notice of motion be dismissed with no order as to costs.
26 The reasonably timely application by the applicant before Bignold J to introduce evidence of that agreement before he gave judgment and the dialogue with his Honour to which I have referred are strong discretionary factors favouring the conclusion that it is in the interests of justice to admit Mr Bewsher’s affidavit of 2 November 2004 as further evidence in these proceedings. I propose to grant leave to the applicant to adduce that further affidavit evidence. Mr Bewsher’s supplementary statement of 9 October 2006, whilst covering the same ground, appears to go further and I am not persuaded that leave to re-open to admit that statement should be granted.
THE PROPOSED FURTHER EXPERT TOWN PLANNING EVIDENCE
27 The notice of motion also seeks an order that the applicant be granted leave to adduce expert town planning evidence from Gary Rhodes on item 1 of the issues set out in the applicant’s statement as to additional evidence filed on 11 August 2006. Item 1 of that statement states: “Further expert Town Planning evidence regarding the levying (and the proposed application) of s 94 contributions for the construction of the Maxwells Creek channel prior to the WSO proposal and its abandonment because of that proposed public works”. This proposed further evidence is contained in a statement by Mr Rhodes dated 9 October 2006 in relation to the funds collected by the council by way of s 94 contributions for the construction of works in the vicinity of Maxwells Creek.
28 There was tendered before me a statement of Mr Davison, the Council’s land development manager, dated 13 February 2004, which had been an exhibit in the proceedings before Bignold J. It relevantly stated:
Section 94 Funding
20. Between 1999 and the Date of Acquisition of the Mosca Property by the RTA, Council did not have available allocated funding to carry out the Bewsher Channel Works. This is because Council did not have in its section 94 contributions plan ( “Contributions Plan” ) a funding source for trunk drainage works along Maxwells Creek. The existing Contributions Plan identifies a funding source directed to funding the acquisition of land zoned for drainage reserve by Council.
22. To obtain the funds to undertake trunk drainage works along Maxwells Creek the Council would have needed to establish a nexus and formula to raise the necessary funds in a Contributions Plan. The Council allows developers to undertake works, as works in kind, as a condition of their development application ( “DA” ) approval.21. Section 94 funding is collected on a local and district level, and not on a catchment by catchment basis. There was and is no specific fund for improvement works for Maxwells Creek.
29 The Court of Appeal judgment in Roads and Traffic Authority v Mosca (2006) 146 LGERA 335 reflected this and other evidence in that statement by Mr Davison, as follows:
[44] Mr Davison, the Council's Land Development Manager, said that had there had been no WSO proposal further studies and approvals would have been required before the Council could adopt any detailed design for trunk drainage works on Maxwells Creek, and the process would have taken a minimum of two years (blue 3/548). The Council would then have had to commission an EIS which it would have to approve (3/548) before the drainage works could be carried out.
[46] He said that the Bewsher channel works under consideration in 1999 would not have made the Mosca property flood free (3/549). Between 1999 and the date of resumption the Council had no available funding for trunk drainage works in the area. The 1992 Contributions Plan made provision for the acquisition of the land zoned for drainage reserve, but not for any trunk drainage works (3/550).[45] Construction of the works would have been dependent on developers or on the Council preparing an appropriate s 94 Contributions Plan (3/548-9). As at 4 October 2002 it had not resolved to acquire any of the land zoned 5(a) or 6(a) or to prepare a s 94 plan to cover trunk drainage works in the Maxwells Creek area (3/549). He would have advised the Council that the commencement of such works should be a necessary pre-condition to development approval for any property in this area (3/549). The Council stated in a letter to the owner's solicitors that he drafted (3/551 E) that the trunk drainage work would have taken 12 months to complete (3/552).
- …
[59] The Judge made no other findings as to what would have happened but for the project. Mr Davison's evidence, if accepted, established that another two years would have elapsed before the Council could commission an EIS, but he offered no estimate of the further time that would have elapsed before its approval by the Council.
[60] The Council did not have funding for these works and could only have obtained it if a s 94 Contributions Plan was adopted. No estimate was given of the time that this would have required, or the time that would then have elapsed before the necessary funds had been accumulated. It is not clear however that the Council was having these drainage works designed with a view to doing the work itself, it may have contemplated requiring a developer to do it.
[61] The work was said to take 12 months (at [45] of these reasons), and thus would be expensive but there was no estimate of its cost. It is clear however that this must have exceeded by many times the $50,000 allowed by Mr Paris.
[63] There was no evidence that the Council would have established a contributions plan but for the resumption process. It may have contemplated or in the event decided that the cost should be borne by the party developing the corridor.[62] There was evidence that developers buying land in globo factor s 94 contributions into their price so that values established by comparable sales of in globo land do not need to be adjusted because of the contributions that will have to be paid or provided by the developer.
30 In his said statement dated 9 October 2006, Mr Rhodes refers to his earlier statement of evidence in relation to the s 94 issue which he prepared on behalf of the applicant in a case in this Court of Torrisi v Roads and Traffic Authority of NSW [2006] NSWLEC 308, which settled. It was the subject of a short judgment by Senior Commissioner Roseth, delivered on 5 June 2006. The Torrisi land was to the south of Mr Mosca’s land and the same Maxwells Creek issues were involved. Mr Rhodes’ earlier statement of evidence prepared for that case stated:
To suggest that these channel works would be left to individual negotiations and construction between landowners is incorrect and inconsistent with what happened in the rest of the Release Area under the Section 94 Plan.Precinct 5 has been the subject of a Section 94 Plan since December 1992 with this Plan being revised on a number of occasions… The 1992, 1995, 1997 Plans all make provision for the levying of contributions for the construction of the Maxwells Creek Channel. Clearly it was intended to implement these works in a coordinated manner as was done with the rest of the Release Area. Council in 1997 actively commenced the acquisition of land to enable implementation of the channel works.
31 Mr Rhodes’ statement sets out his subsequent exchange of emails in 2006 with Mr Barry Millwood, a council staff member handling s 94 matters. Mr Millwood’s email of 31 May 2006 said that he had seen a memo from Arvind Lal (another council officer) dated 13 January 1998; that the amount of $1,558,600 referred to the 1992, 1995 and 1997 versions of Plan 6 would, based on that memo, involve the construction cost of some form of channel works along Maxwells Creek (although he was not aware of what form that channelisation would take); and that as far as he was aware, the abovementioned amount was not transferred to the District Drainage as works costs. Having regard to Mr Millwood’s email, Mr Rhodes concludes in his statement dated 9 October 2006:
Based on the $1,588,600 [sic] identified in the 1995 Plan (and being the amount referred to in Mr Millwood’s email to me) some $1,112,020 would have been collected (or was to be collected under consents issued) in 1995 dollar terms… Based on the foregoing and ignoring the impact of the WSO it is my view that any works carried out by a developer that involved construction of the Maxwells Creek channel would have been reimbursed from the Section 94 account with the total costs of the works to be shared across the 3975 lots identified in the 1992 Section 94 Plan for Local Drainage Catchment Area Precinct 5 – Central.Based on the above it is my view that there can be no question that Council was levying contributions for the construction of Maxwells Creek Channel under the 1992, 1995 and 1997 versions of the Section 94 Plans…
32 The applicant submits that Mr Millwood’s email contradicts Mr Davison’s evidence before Bignold J that there were no s 94 funds available for works to be carried out in Maxwells Creek and indicates that there was in excess of $1 million available for such works. The applicant submits that Mr Rhodes’ evidence, if accepted, would have a significant impact on the Court’s assessment of the development potential of the applicant’s land at the date of acquisition because it would support the conclusion that such funds would have been available to undertake necessary work in Maxwells Creek.
33 The February 2004 statement of Mr Davison that was in evidence before Bignold J records that the evidence therein was based on a conference attended by, among others, council officers Barry Millwood and Arvind Lal. The applicant proposes to adduce in evidence the 2006 email from Barry Millwood, which was based on Arvind Lal’s memo (not in evidence), in an endeavour to contradict or compete with evidence by Mr Davison in his statement which records that those two council officers were present when the statement was prepared. To grant leave to adduce this further evidence, would re-open the whole s 94 issue and, potentially, could lead to the recalling of Mr Davison and to the calling of Mr Millwood and Mr Lal. Mr Davison was called in the proceedings before Bignold J to give evidence of what he, as a responsible council officer, would have advised a hypothetical enquiring vendor or purchaser on the date of acquisition. A different view of a different officer on a later date, even if relevant and accepted, would not necessarily, or with a high degree of probability, establish error in Mr Davison’s evidence or lead to a different result. Moreover, it is insufficient to show that evidence which might have affected the outcome of the trial has become available after judgment, otherwise a judgment would be of a provisional character only, being subject to the discovery of further relevant evidence: Commonwealth Bank of Australia v Quade (quoted above at [14]). This is also sufficient reason not to permit the applicant to now adduce from Mr Rhodes the freestanding evidence that he gave in Torrisi.
34 Weighing the circumstances, I am not persuaded that it would be an appropriate exercise of the discretion to grant leave to the applicant to re-open to adduce this evidence from Mr Rhodes.
35 I make the following orders:
(1) Leave is granted to the applicant to adduce further evidence being
- the affidavit of Andrew Bewsher sworn on 2 November 2004.
(2) Otherwise the applicant’s notice of motion filed on 11 October 2006 is dismissed.
(3) The exhibits may be returned.
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