Noseda Petroleum P/L v City of Mt Gambier & Anor No. Scgrg-99-1557

NOSEDA PETROLEUM PTY LTD & ORS v CITY OF MOUNT GAMBIER & ANOR

[2000] SASC 225

Full Court: Doyle CJ, Duggan and Lander JJ

DOYLE CJ: Brown Falconer Group Pty Ltd applied to the City of Mount Gambier (“the Council”) for development consent, on behalf of Woolworths Limited (“Woolworths”) for a proposed development on land occupied by Woolworths. The land is at Commercial Street East, Mount Gambier.
The proposed development involved the construction of a petrol filling station in part of the car park of an existing group of shops comprising a Woolworths supermarket, a Pizza Hut restaurant and a small group of speciality shops.
The Council granted provisional development plan consent to the application. The Council characterised the application as an application to vary an existing planning consent, by changing the use of part of the subject land to a petrol filling station use. The existing planning consent was the planning consent under which the supermarket and speciality shops were operating.
The appellants made written representations to the Council opposing the grant of consent. They appealed to the Environment Resources and Development Court (“the ERD Court”). The ERD Court upheld the grant of consent, but varied the conditions imposed by the Council.
The appellants now appeal by leave to this Court.
The outcome of the appeal turns on a decision made by the ERD Court at the close of the case for the appellants. The decision was that certain evidence led by the appellants was not relevant to the matters to be determined by the ERD Court. The evidence was given by Mr Tutte, an expert planner. The evidence suggested that the proposed development would increase turnover at the Woolworths supermarket, cause a consequent decrease in turnover at three supermarkets located in the City Centre Zone (“the CCZ”) and at other retail outlets in the CCZ, and thus would conflict with provisions in the Mount Gambier (CC) Development Plan (“the DP”) relating to the CCZ. No attack is now made on the other aspects of the reasoning of the ERD Court that led it to dismiss the appeal.

Facts

It is not necessary to go into the facts in any great detail to expose the point at issue.
Mount Gambier is a city in the south east of South Australia. According to the DP, it has a population of about 27,000 people.
A feature of the DP is the establishment of the CCZ in the heart of Mount Gambier. The CCZ runs roughly east west, either side of the main shopping street of Mount Gambier. The DP discourages development of the city centre that would extend further to the east and to the west along either side of that street. The aim of the DP is to discourage further development of the city centre of a ribbon nature, and to encourage what it calls development “in depth”: see Objective 1 for the CCZ.
The DP contains Objectives and Principles that apply throughout the area covered by the DP. Without going into details, it suffices to say that a number of Objectives call for the grouping of shopping and other facilities into integrated centres, the centres being established and developed in centre zones in accordance with an appropriate hierarchy of centres: see Objectives 5, 6 and 7. As well, there are provisions of the DP which require that facilities that are not appropriate for a centre should not be permitted to affect adversely a designated centre. For example, the text to Objective 11 provides as follows:
“The diversification of locations for retailing, which provides goods and services not compatible with the grouping of facilities envisaged for regional, district and neighbourhood centres, may be considered so long as the integrity of the centre hierarchy is not compromised and the development is compatible with land uses in the locality.”
A number of the Principles relate to shops and centres. Principle 1 deals with “Shopping development”. It is to the effect that a shop or group of shops with “a gross leasable area greater than 450 square metres should be located in a business, centre, or shopping zone, or area”. A group of shops with a lesser area located outside such a zone or area should “not hinder the development or function of any business, centre, or shopping zone, or area”. There are a number of principles, that descend to detail, relating to shopping development and centres. It suffices to say that they continue the theme of establishing appropriate centres, organising them according to an appropriate hierarchy, and developing them in an organised, efficient, safe and convenient fashion. Principle 12 provides as follows:
“Shopping development which is more appropriately located outside of business, centre, or shopping zones or areas, should:
(a)... be of a size and type which would not hinder the development or function of any business centre, or shopping zone or area, in accordance with the objectives and principles of development control for centres and shops, and the objectives and principles of development control for the appropriate zones, or areas;
...
(d)... not demonstrably lead to the physical deterioration of any designated centre.”
The DP contains provisions specifically relating to the CCZ. Objective 1 for that zone is as follows:
“A compact city centre providing a range of attractive retail, commercial, administration, cultural, entertainment and community facilities.”
The text to that Objective states in part:
“Consideration of shopping convenience and traffic flow in Commercial Street East and Commercial Street West make it important that the city centre is developed in depth between the railway line and the northern ridge line and not encouraged further east or west along either side of Commercial Street East and Commercial Street West.”
The Woolworths supermarket is located in a zone designated Commercial Zone (“the CZ”). The DP states a single objective for that zone, as follows:
“A zone for local service uses and other servicing, minor wholesaling, and storage and associated activities complimentary to the city centre and not having an adverse impact on adjacent residential properties, either by excessive traffic movements or other forms of disturbance.”
The DP contains Principles that are specific to the CZ. Principle 4 states that a petrol filling station is a complying development in the CZ. Principle 5 states that non-complying developments in the CZ include “Shop or group of shops with a gross leasable area greater than 450 square metres.” The Woolworths supermarket was established some years ago, before the adoption of the DP as it now stands.
In earlier proceedings involving the same parties the ERD Court upheld a decision by the Council to treat the proposed development as a Category 3 development for the purposes of s 38 of the Development Act 1993 (“the Act”).
Underlying that decision was a decision that the application before the Council had two aspects. It was an application for development consent in respect of development correctly described as a petrol filling station. But it also involved an application to vary the existing development approval for the Woolworths supermarket. Constructing the petrol filling station involved changes to the car park of the supermarket. As well, part of the car park was now to be used as a petrol filling station.
In short, the development the subject of this appeal does comprise the establishment of a petrol filling station, a complying use in the CZ, but the development has been held not to be a complying development because it also involves an application to vary the existing planning approval. It is for that reason that it was not a Category 1 development.
This all meant that the development had to be assessed on its merits against the DP. All relevant issues had to be assessed, in light of the provisions of the DP: Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93; Adelaide Produce Markets v City of Salisbury [1995] EDLR 40. It was not a development for which s 35 of the Act required the grant of a provisional development plan consent.
The petrol filling station was to be operated by a wholly owned subsidiary of Woolworths. The intention is to offer customers who spend more than $30 in the Woolworths supermarket a discount on petrol purchased at the petrol filling station. The purpose of this scheme is to increase turnover in the Woolworths supermarket. One would expect that if that device succeeds, it will cause some reduction in turnover at the three supermarkets in the CCZ.
The issue on appeal
The general effect of the evidence of the planning experts was that the proposed petrol filling station was an appropriate development in the CZ, and at the proposed site, subject to the issue that arises in this appeal. That issue is, as I have already indicated, the effect of the establishment of the petrol filling station on the supermarkets in the CCZ, and thus on “the development or function” of the CCZ: Principle 12(a).
It was the evidence of Mr Tutte from which this issue mainly arose. His evidence had three elements.
The first element was that the DP speaks strongly in favour of supermarkets being located in centre locations because:
“Supermarkets are important centre facilities whose presence outside of centres can have detrimental effects on the function or well-being of designated centres.”
The location of the Woolworths supermarket in the CZ was significantly at odds with the thrust of the DP because it was a development appropriate for a centre location, and was inappropriate for the CZ because it involved shops with a leasable area in excess of 450 square metres. In short, the Woolworths supermarket was a facility that, ideally, should not be in the CZ, and should be in the CCZ. It is, of course, protected by existing use rights.
The second element of his evidence was that the proposed development would result in increased turnover and retail activity at the Woolworths supermarket, and possibly at the speciality shops associated with it.
Both of these elements are non-contentious.
The third element was based on published statistics relating to retailing in the area and also based on some computer modelling. Mr Tutte’s evidence was that the increased turnover at Woolworths would be significant, and could be an increase of 10 per cent or 15 per cent. He then reasoned that the effect of this on the three supermarkets in the CCZ would be noticeable. Trading conditions in Mount Gambier were not buoyant. He expressed the view that most of the impact would be on the supermarket that was closest to Woolworths. That was a Foodland supermarket in Fidler’s Centre. He then expressed the view that this could lead to physical deterioration of that supermarket, and might even lead to its closure. This evidence was backed up by evidence from an employee of the owner of the Fidler Centre. He described it as a dated centre needing rejuvenation. He said that the proposed development would reduce turnover at the Foodland supermarket and other shops in Fidler’s Centre. The owner “would have to seriously reconsider” the redevelopment of Fidler’s Centre that was being planned. The Foodland might be replaced by a mini-mart or convenience store.
It was on the basis of this third element of his reasoning that Mr Tutte concluded that the grant of a development approval was not consistent with the provisions of the DP. He said in his written report:
“I am also concerned that the proposed development is contrary to the provisions of the Development Plan relating to Centres, in that its operation may:
·....... draw customers away from retailers in the designated City Centre Zone;
·hinder the development or function of the City Centre Zone;
·....... not maintain retail employment in the locality; and
·lead to physical deterioration of the designated City Centre Zone.”

The ERD Court decision

As the result of a submission made by counsel for Woolworths, after the close of the case for the appellants before the ERD Court, the Court gave particular consideration to the third element of Mr Tutte’s evidence. There are two aspects to the Court’s consideration of that evidence. The ERD Court said that an attempt to determine the likely increased turnover at Woolworths was “mere speculation”. That is a reference, of course, to an increase attributable to the operations of the petrol filling station. To then identify the effect upon the Foodland supermarket at Fidler’s Centre in the CCZ “would be mere speculation upon speculation”. As the ERD Court said:
“There are too many variables for us to accept the simple calculations put by the appellant, even if we knew the real figures and inserted them.”
This is undoubtedly a reference to the fact that Mr Tutte’s evidence was based on published statistics that were not specific to any particular retailer. Some of the statistics relate to the area of the Council, others to the whole south-eastern region. Mr Tutte had to make a number of assumptions. As well, Mr Tutte was hypothesising as to the actual turnover of the Woolworths supermarket, and from there to a possible impact on hypothetical turnover at the other supermarkets. Mr Tutte’s estimate of the likely increase of turnover at Woolworths was based on estimates given to him by other persons, those estimates in turn being based on very limited information. The ERD Court then referred briefly to the provisions of the DP. It made the point that the proposal was for a petrol filling station, not for a shop, shopping development or retailing as those terms were used in the DP. It then concluded:
“Thus, evidence of turnover was not relevant to the matters to be determined by the Court, and those provisions of the Development Plan which address shopping development and Centre Zones, including the impact on the development or function of the Centre Zone of shopping development or retailing which is located outside that Centre Zone, have no relevance to the appeal before us.”
The ERD Court thus determined that evidence of turnover was not relevant. This is the ruling challenged on appeal. That ruling was made at the request of counsel for Woolworths, who foreshadowed detailed evidence in rebuttal of Mr Tutte’s evidence and hypotheses, were the evidence to be regarded as relevant. That evidence would have related to the turnover of Woolworths and of the other supermarkets. The appellants before the ERD Court had led no direct evidence about the turnover of any of the existing supermarkets. All of Mr Tutte’s evidence was based upon published general statistics, and then hypotheses, drawing on his experience of retailing, as to the impact of the establishment of the petrol filling station on Woolworths turnover, and consequentially upon the turnover of the supermarkets in the CCZ.

Conclusions

There is nothing in the DP to support the conclusion that a petrol filling station is a type of development that should be located in the CCZ, or should not be located in the CZ. The fact that a petrol filling station is a complying development in the CZ makes that clear. The proposed petrol filling station was, considered as a type of development, an appropriate development in the proposed location.
In the light of the other conclusions reached by the ERD Court, the objection to the dismissal of the appeal to the ERD Court must rest on the impact of the increased turnover at Woolworths on the existing supermarkets and shops in the CCZ. There is no other basis for an attack.
A petrol filling station is not a shop as defined in the Development Regulations 1993: see Schedule 1. The definitions in the Regulations apply to the DP, unless the context otherwise requires: reg 3(1)
It is arguable that the references to retailing, shops, groups of shops and shopping development in the provisions of the DP to which I have referred should not be read as encompassing a petrol filling station, and so as not being applicable to this case.
But the DP is not to be read like a statutory instrument. It should be read more flexibly. Its thrust is to organise retail selling into appropriate centres, and to discourage the establishment of retail facilities outside those centres if that will make the desired organisation of facilities more difficult.
On that basis, and reading the provisions of the DP flexibly, it can be said that the considerations raised by Objective 11, and Principles 1 and 12 of the general part of the DP, require consideration in the present case. That requires one to read “retailing” and “shopping development” as embracing a petrol filling station, even though it is not defined as a shop. I consider that the DP can be read that way, when one considers the general approach to centres and retail trading.
In my opinion it is preferable to approach the matter this way. I do not favour the argument used by Mr Tutte that the petrol filling station was to be treated as a shopping development, or as part of a shopping complex, because it was controlled by Woolworths and was to be used to promote trade at the Woolworths supermarket. That reasoning led him to concede that the proposed development should be characterised simply as a petrol filling station if it was operated independently of Woolworths, and was to be characterised as he did only because it was to be owned and operated as proposed. That concession, which I think had to be made, really undermines the logic of the main argument. An independently owned and operated petrol filling station on this site might also have the same effect on turnover at the Woolworths supermarket, depending upon particular marketing strategies used by the operator of the petrol filling station and by Woolworths.
I consider that the general point made by Mr Tutte is sound, even though it cannot be found expressly in the provisions of the DP. That is, I consider that the DP’s strong emphasis on the grouping of retailing facilities in appropriate centres, and the emphasis upon avoiding development that would hinder the development or function of established centres, did require consideration in the present case.
But the correct application of the relevant Objectives and Principles raises difficulties. They invoke general considerations not easily applied to a particular case. First, the question of whether a particular development is a type of development that should or should not (or perhaps need not) be located in a centre zone. Secondly, not hindering the DP’s strategy of establishing a hierarchy of centres for retailing.
General considerations like these have to be deployed flexibly and sensibly. They involve the exercise of a planning judgment, and that judgment will often be the decisive element in a decision.
The second consideration identified by me will or may require consideration of the impact of a proposed development upon existing facilities, and relevantly that will be an impact through business competition. But, I cannot accept that the DP requires consideration of the impact of the turnover of each and every proposed development involving the establishment of a shop, or retailing facilities, upon existing facilities in the CCZ, when the proposed development is outside the CCZ. The pursuit of the logic inherent in Mr Tutte’s evidence would require that to be done, even if the impact is not, as it is in the present case, consequential upon the impact on an existing shop outside the CCZ.
It seems to me that the approach of the DP is to focus on matters such as the “size and type” of development (Principle 12(a)); gross leasable area (Principle 1); and the nature or character of retail development as desirably or appropriately located in a centre zone or appropriately located elsewhere (Objective 11), which would tend to embrace also the matters specifically identified in Principle 1 and Principle 12. Objective 11 requires consideration of the desirability of locating a particular type of development in a centre zone, and its compatibility with existing facilities if it is to be located outside a centre zone. To my mind, there is no indication in the provisions of the DP that a planning authority should be directly concerned with issues of turnover and competitive effect, unless and until those issues are brought into play by a factor with which the DP deals in terms.

In other words a consideration of turnover and competitive effect is required only if, for example, the size of the proposed development or its nature or character indicate that the Objectives and Principles in the DP may call for its location in a centre zone. Such considerations are not involved if there is nothing about the proposed development to indicate that it should be located in a centre zone rather than where proposed. Although the DP should be read reasonably flexibly, one must find a planning consideration in it that requires consideration of competitive effect before one considers such effects.
There is nothing in the DP against the location of a petrol filling station in the CZ, or at or adjacent to this particular site. There is nothing to suggest that it is a form of development that should be in the CCZ. Indeed, in general terms the proposed development seems appropriate for the proposed location. The petrol filling station does not involve the establishment of a shop with a gross leasable area greater than 450 square metres. It is not a shopping development which is of a size or type which would be expected to hinder the development or function of an established centre, or of the CCZ in particular. The DP itself identifies a petrol filling station as a complying use in the CZ. It is not an inappropriate use for the CZ, nor is it a use of the type which one would expect to find mainly or only in a zone such as the CCZ, although it might be appropriate also for the CCZ. There is nothing about the proposal, other than the suggested effects of competition on facilities in the CCZ, that argues against the grant of consent when it is assessed against the DP. There is no provision of the DP, applicable to this case, that requires a consideration of competitive effects.
To reason this way is not to reason that consideration of the impact of a proposed development on the turnover of existing facilities in the CCZ is always irrelevant. Impact on turnover is a major issue that underlies and explains the presence of provisions such as Objective 11, Principle 1 and Principle 12. Concepts such as hindering the development of a centre zone must involve consideration of competitive effect. But, as I have endeavoured to explain, the DP does not directly establish turnover or turnover effects as a planning issue or principle to be considered in every case. It identifies matters that can be assessed by planners, recognising that the significance of those matters (if they arise in a given case) may lie to some extent in their turnover effects.
In deciding whether, in all the circumstances, it was proper to grant a planning consent, the ERD Court had to consider the proposal as a whole. But, as I have endeavoured to explain, there was nothing other than the turnover evidence to argue that in principle this development should be located in the CCZ, or should not be located in the CZ. The proposal merited approval, unless considerations of turnover could lead to a contrary conclusion. My view is that the DP does not make such considerations relevant in this case. They can be put to one side not because the proposed development is not a “shop” as defined, but because even when the DP is read more flexibly, they are not invoked.
It would have been different if a feature of the proposed development attracted the operation of a part of the DP that spoke against the grant of development consent. To the extent that such a feature of the DP called for consideration of competitive effects, because they might hinder the “development or function” of the CCZ, or lead to “physical deterioration” of facilities in the CCZ, then such effects should be considered: cf Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 687.
Under the circumstances, the ERD Court was correct to say that the turnover evidence was irrelevant. Its reasons for so holding were too sweeping, but it was in fact correct.
If I am wrong, and the proposal attracted the operation of provisions of the DP that argue against the grant of planning consent, I agree with the ERD Court that Mr Tutte’s evidence was too speculative to provide a basis for a decision that consent should have been refused, reasoning from the impact of the development on turnover at the Woolworths supermarket, to the impact on existing facilities in the CCZ. The factual foundation of his evidence was a mix of speculation and assumption, as were the conclusions. To say this is no criticism of Mr Tutte. Obtaining probative material is not likely to be easy, when dealing with a topic like this. The proper application of the relevant parts of the DP might involve an element of speculation, because the impact of new retailing facilities on existing facilities will always be difficult to prove. But, to my mind, and without going into details, the ERD Court was entitled to treat this evidence as being so speculative as to be of no value to it. The ERD Court was entitled to take the view, as a matter of fact, that there was no reason to think that the proposed development would impede the functioning of the CCZ. In the particular circumstances, it was open to the ERD Court to decide that it was not incumbent on Woolworths to adduce detailed evidence to that effect. That decision is one of fact, and one with which this Court should not interfere.
For those reasons I would dismiss the appeal.

DUGGAN J. The facts of this matter are set out in the judgment of the Chief Justice.
The principal issue on appeal is whether the Environment Resources and Development Court (“the ERD Court”) was correct in deciding that the evidence of the expected increase in turnover of the Woolworths supermarket and the suggested corresponding decrease in the turnover of supermarkets in the City Centre Zone was irrelevant to the determination as to whether provisional development plan consent should be given to the application.
In ruling that the evidence was irrelevant, the first concern expressed by the ERD Court was that it was mere speculation to say that Woolworths’ turnover would increase by the margin of 10 per cent to 15 per cent referred to by Mr Tutte in his report and oral evidence and that the turnover of the supermarkets in the City Centre Zone would decrease to the extent indicated by Mr Tutte’s calculations. Secondly, the court rejected the argument that the impact of the operation of the petrol filling station would conflict with the Development Plan by reason of its potential to decrease commercial activity in the City Centre Zone.
In his report which was tendered at the hearing before the ERD Court, Mr Tutte said:
“From my discussions with other retail operators I believe that it is likely that development and operation of the service station is likely to increase gross turnover at Woolworths supermarket by between 10 per cent-15 per cent.”

He went on to explain that there are three supermarkets in the City Centre Zone and he gave details of the floor space of each of these premises. He then calculated the present turnover of each supermarket by assuming a turnover per square metre of $4,042. He expressed the view that if Woolworths increased its turnover by 10 per cent to 15 per cent, it would lower the turnover of the three supermarkets in the City Centre Zone by between 8.1 per cent and 12.2 per cent. He then expressed the following view:

“In terms of retail assessment, I would regard a loss of 10 per cent of turnover as significant, and of a magnitude likely to lead to physical deterioration. A loss in turnover of 50 per cent, would be difficult for most retailers to sustain, and could well lead to the closure of a retail business.”

Mr Tutte gave oral evidence to similar effect. He said in cross-examination that he spoke to three people about the matter over the telephone. A person employed by Coles Myer in Melbourne told him that he believed the increase in turnover for Woolworths would be in the region of 10 per cent to 15 per cent approximately. Mr Tutte said he then spoke to the manager of the Lakes View complex in Mt Gambier whose initial response was that the increase would be in the region of 15 per cent to 20 per cent, but, after discussing the matter further with Mr Tutte, he thought that this estimate might be appropriate for the initial impact, but it would decrease as the supermarkets implemented new ways of competing. Finally, Mr Tutte spoke with a person at First Pacific Values. No further details of this conversation were given.
The ERD Court is not bound by the rules of evidence (Environment, Resources and Development Court Act, 1993 s 21). However, it would be appropriate for a court bound by the rules of evidence to reject this evidence if objection were taken to it. Mr Tutte’s qualifications which are set out in his report do not refer to any expertise which would qualify him to express an opinion on the profits of commercial enterprises or the viability of commercial enterprises in the event of a downturn in turnover of the levels postulated in his report. Furthermore, the crucial estimate of a 10 per cent to 15 per cent increase in Woolworths’ turnover emanated from suggestions made to Mr Tutte in the course of telephone conversations with retailers. The evidence was no more than untested hearsay. (Ramsay v Watson (1961) 108 CLR 642; Steffen v Ruban (1996) 84 WN (Pt 1) (NSW) 264).
In my view the shortcomings in evidence of this nature which lead to its exclusion under the hearsay rule are present in the evidence which I have summarised and render it of little or no use. There is no evidence as to the basis upon which those who expressed these opinions arrived at them. There was no opportunity to test the opinions which they expressed. Without being qualified as a witness to express views about commercial ventures of this nature, Mr Tutte attributed potential reductions in turnover to the three supermarkets in the City Centre Zone. He went further and commented upon the potential of these reductions to lead to “physical deterioration”.
The first reason given by the ERD Court for rejecting this evidence was that it, in effect, lacked any probative value. In my view the court was justified in taking this view. Apart from the fact that the basis of the evidence was untested and highly speculative, the ERD Court commented on the fact that there were too many variables for the evidence to be of any real use.
As I have indicated, the ERD Court was also of the view that evidence of turnover was irrelevant in any event. It held that a petrol filling station was not a shop and that, accordingly, those provisions of the Development Plan which addressed shopping development and Centre Zones and the impact on the Centre Zones of shopping development or retailing which is located outside the zone, had no relevance.
I agree with the view expressed by the Chief Justice that this was too narrow a view and that the Development Plan should be read more flexibly in this respect. A petrol filling station has sufficient connection with “retailing” and “shopping development” to render its operation a relevant consideration, despite the fact that it is not defined as a “shop”. I also agree that there will be some cases in which impact evidence of the general type which I have been discussing will be relevant. As Mr Tutte pointed out, certain aspects of the Development Plan emphasise the appropriateness of grouping retail facilities with a gross lettable area of 450 square metres in a business centre or shopping zone and, if a proposed development outside the zone would hinder the development or function of the zone, it would be relevant to take such evidence into account when assessing the development against the Development Plan.
However, for the reasons I have given, it would not have been appropriate for the court to rely on the challenged evidence put forward by the appellant in this case because of its inadequacies.
Mention should also be made of the fact that the ERD Court heard evidence from Mr Neil Martin, who is the Property and Development Manager of Scott’s Agencies Pty Ltd, the owner of a shopping centre known as “The Fidler Centre” situated on Commercial Road East within the City Centre Zone. Mr Martin said that the Fidler Centre was a dated complex in need of rejuvenation. He gave evidence that, in his opinion, the petrol filling station and the incentive scheme envisaged by Woolworths would have a significant adverse impact on the retail sales of a supermarket which is operated at the Fidler Centre. He said the proposed redevelopment of the Fidler Centre would not proceed if the petrol filling station application were approved.
Mr Martin has nothing to do with the operation of the supermarket at the Fidler Centre. He is the development manager of the landlord. He gave no turnover figures for the supermarket. In my view the evidence lacked specificity in relation to the effect on the supermarket of the proposed development and was based upon assumption. It had no probative value.
In my view the appeal should be dismissed.

LANDER J. I agree with the reasons of the Chief Justice for his conclusion that this appeal should be dismissed.
I agree with the Chief Justice that there may be some circumstances where evidence of the kind which was sought to be adduced through Mr Tutte might be admissible. I agree with the Chief Justice that there might be circumstances where the evidence would be relevant. I am prepared to assume that the evidence which was sought to be adduced is evidence that the Tribunal would be unlikely to prove capable of forming a correct judgment upon without the assistance of an expert; Clark v Ryan (1960) 103 CLR 486.
However the evidence which was sought to be adduced was never, in my opinion, admissible because the assumption upon which the opinion was offered was simply not capable of being proved: Ramsay v Watson (1961) 108 CLR 642 at 649; Bugg v Day (1949) 79 CLR 442 at 462.
Mr Tutte’s evidence of the affect upon the retailers within the City Centre Zone was based upon the assumption that development and operation of the service station was likely to increase gross turnover at Woolworths Supermarket by at least 10 per cent to 15 per cent.
That assumption was made “from my discussions with other retail operators”. It was not proposed to call the retail operators who had discussed that matter with Mr Tutte. The Tribunal was not told who those retail operators were and how they might have arrived at the conclusion upon which Mr Tutte’s opinion was based.
Whilst Mr Tutte would have been entitled to give evidence of the assumption he had made the opinion that he offered could not be received without there being some proof of the likely increase in gross turnover at Woolworths after development and operation of the service station.
His assertion that he was given that information by other retail operators could not prove the underlying assumption and his opinion, based upon that unproved assumption, could not therefore be received.
I agree that the appeal should be dismissed.

[2000] SASC 225

6 July 2000