Penrith City Council v Settlers Estate Pty Ltd

[2020] NSWLEC 99

Land and Environment Court

New South Wales

Medium Neutral Citation:

Penrith City Council v Settlers Estate Pty Ltd [2020] NSWLEC 99

Hearing dates:

15 July 2020

Date of orders:

15 July 2020

Decision date:

24 July 2020

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

Leave to re-open to adduce expert survey evidence refused with costs. See orders at [70].

Catchwords:

PROCEDURE: second application to re-open by respondents to adduce further expert survey evidence – expert evidence appended to affidavit of solicitor for respondents – no cogent explanation for not adducing the evidence in the respondents’ case – applicant notified of application but evidence the subject of the notification was not the evidence the subject of the application to re-open – expert evidence conceded by respondents to be inadmissible in its current form – application would cause delay in the finalisation of the proceedings because it would necessitate the preparation of reply survey evidence by the applicant – matter the subject of an urgent hearing at the request of the respondents – respondents conceded that other evidence available to establish that the impugned works were not carried out in the wrong location and therefore contrary to approval – application dismissed with costs.

Legislation Cited:

Civil Procedure Act 2005, ss 56, 57, 58, 59, 60

Environment Planning and Assessment Act 1979, ss 4.46, 4.47

Uniform Civil Procedure Rules 2005, rr 2.1, 29.5, 31.19, 31.21

Water Management Act 2000

Cases Cited:

Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; (2014) 206 LGERA 40

Goodman Fielder Consumer Foods Pty Ltd v GrainCorp Foods Australia Pty Ltd [2020] NSWSC 706

Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35

Category:

Procedural and other rulings

Parties:

Penrith City Council (Applicant)
Settlers Estate Pty Ltd (First Respondent)
Statewide Planning Pty Ltd (Second Respondent)
George W Pty Ltd (Third Respondent)
Eastern O’Connell Pty Ltd (Fourth Respondent)

Representation:

Counsel:
T To (Applicant)
J Doyle (First to Fourth Respondents)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Colin Biggers & Paisley Lawyers (First to Fourth Respondents)

File Number(s):

2020/170844

Judgment

The Respondents Make Their Second Application for Leave to Reopen

1. On what was day five of a two day matter set down with some urgency with the consent, if not at the insistence, of the respondents to the proceedings (the urgency necessitated by an undertaking proffered by the respondents to avoid an application for interim injunctive relief by the applicant), the respondents made a second application to re-open by notice of motion filed on 13 July 2020 (“the application”).

2. While the first application to reopen was consented to by the applicant, Penrith City Council (“the Council”), the second was opposed, if for no other reason than were the evidence the subject of the second application to be admitted into evidence, it would have necessitated the Council obtaining expert survey evidence in reply which would have delayed the finalisation of the proceedings, and moreover, as was frankly conceded by counsel for the respondents, Mr Justin Doyle, the evidence was not crucial in any event because there was other material already admitted into evidence that was capable of establishing that the development the subject of the proceedings had not been carried out in the wrong location as alleged by the Council in its pleadings.

3. It was primarily on these two bases that the Court refused the second application at the conclusion of oral argument. To avoid further expense to the parties, the Court made relevant orders on that day with the promise of detailed reasons to follow. These are those reasons.

The Respondents Construct a Drainage Line, a Culvert and a Channel

4. The basal facts, which are drawn from an agreed statement of facts filed in the proceedings, may be summarised as follows for the purpose of this application.

5. The respondents either own, or are the holder of, development consents and controlled activity approvals which relate to land within or adjoining a riparian corridor. The riparian corridor is part of a three stage subdivision. The riparian corridor is partly vegetated and contains, relevantly, an unnamed watercourse or drainage channel that flows from the south to the north (“the watercourse”).

6. On 29 April 2016 the first respondent, Settlers Estate Pty Ltd (“Settlers”), entered into a voluntary planning agreement (“VPA”) with the Council with respect to the staged subdivision of land. Under the VPA the riparian corridor is to be dedicated to the Council.

7. On 16 May 2019 Settlers excavated the watercourse to varying depths in the riparian corridor from a culvert towards the north (downstream) for a length of approximately 100 metres. It also constructed a drainage line (“drainage line A”) and a culvert. These activities required consent.

8. The subdivided land has the benefit of the following relevant development consents, construction certificates, and controlled activity approvals.

9. On 26 April 2013 a development consent for stage 1 of the subdivision was granted (“stage 1 consent”). The stage 1 consent approved the subdivision of 118 lots and associated works. This included works to be carried out within 40 metres of waterfront land as defined by the Water Management Act 2000 (“WMA”), which was integrated development within the meaning of s 4.46 of the Environment Planning and Assessment Act 1979 (“EPAA”).

10. On 18 July 2011 general terms of approval were issued by the Department of Primary Industries, Office of Water (“the Department”).

11. On 15 May 2014 a controlled activity approval was issued (“first controlled activity approval”).

12. Five separate construction certificates (“CC”) were issued in relation to the stage 1 consent. The only CCs that approved works in the riparian corridor were the stage 1 CC issued on 12 February 2015 and a CC dated 11 June 2014.

13. A stage 2 development consent and stage 2 CC approved development which utilised the drainage within the riparian corridor approved by the stage 1 consent. They are not otherwise germane to the matters in dispute in the proceedings.

14. On 3 June 2016 subdivision certificates were issued for stages 1 and 2 of the subdivision.

15. On 26 April 2017 (by notice of determination dated 9 May 2017) a stage 3 development consent was granted for subdivision of part of the land into 111 lots and associated works (“stage 3 consent”). The development approved by the stage 3 consent included works to be carried out within 40 m of waterfront land (as defined by the WMA), which was integrated development within the meaning of s 4.46 of the EPAA. Accordingly, s 4.47(2) of the EPAA required the Council to obtain general terms of approval from the Department before granting the stage 3 consent and a controlled activity approval and prior to the issuing of the stage 3 CC. Under s 4.47(3) of the EPAA, the stage 3 consent was required to be consistent with the general terms of any approval proposed to be granted by the Department in relation to the development.

16. On 15 July 2016 general terms of approval for the stage 3 consent were issued by the Department.

17. On 22 December 2017 a controlled activity approval was issued (“second controlled activity approval”) which incorrectly referred to Lot 125 DP 1215199. On 7 February 2018 it was reissued with the correct lot reference, namely, Lot 128 DP 1215199.

18. The Council was appointed as the principal certifying authority (“PCA”) for the stage 3 consent on 14 September 2018.

19. Two CCs were issued in relation to the stage 3 consent. The CC which approved works in the riparian corridor was the stage 3 roads and drainage CC issued on 13 July 2018.

20. Within the riparian corridor, the stage 3 roads and drainage CC and the second controlled activity approval relevantly approved the following works on the eastern side of the existing watercourse and within the limit of works line:

1. the construction of drainage line A;

2. the construction of the culvert to discharge stormwater from drainage line A into the existing watercourse; and

3. construction of the headwall for the culvert, with scour protection and minor regrading at the culvert headwall outlet as required.

21. Drainage line A runs from Major Tomkins Parade on the eastern side of the riparian corridor in a north westerly direction towards the watercourse. It transects the watercourse and discharges from a culvert which is located on the western side of the watercourse. It passes under a sewerage pipe the position and level of which are shown in the stage 3 roads and drainage CC.

22. It was not in dispute that the construction of both drainage line A and the culvert was work that required development consent under the EPAA and were controlled activities under the WMA.

23. It was also not in dispute that drainage line A and the culvert were constructed with a lower invert level than that nominated in the plans stamped as approved and listed in the stage 3 consent.

24. Both drainage line A and the culvert were constructed in accordance with the specified reduced level stated on the plans stamped as approved by the stage 3 roads and drainage CC. However, as indicated above, the invert level of the culvert was constructed below the existing level of the watercourse. In the absence of the channelling works, it was agreed that water would be unable to flow from the culvert through the watercourse.

25. On 16 May 2019 the respondents excavated the watercourse for a length of approximately 120 m north (downstream) of the culvert to varying depths. The purpose of the excavation of the watercourse was to enable stormwater to flow unobstructed from the culvert (because it had been constructed at a lower level than the pre-existing level of the bed of the watercourse) downstream towards the rail corridor.

26. It was not a matter of controversy that the channelling works required development consent under the EPAA and were a controlled activity under the WMA.

27. The parties agreed on the following further facts:

1. as constructed, drainage line A and the culvert transect the channel to its western side in the manner depicted in drawing LCON-102 Rev 10;

2. as constructed, the culvert has an invert level of 35.85, which is the invert level stated on plan 170112C1.23 Rev E; and

3. the channelling works are not depicted in any plan approved by the stage 1 consent or the stage 3 roads and drainage CC.

The Parties Agree to a Separate Question

28. On the first day of the hearing two matters became apparent. First, the proceedings could not conceivably be completed within the allocated time of two days. Second, if breach was established by the Council as alleged, then the parties were confident that agreement could be reached as to the appropriate method of remedying the breach.

29. Accordingly, at the Court’s suggestion and with the parties’ consent, it was agreed to proceed by way of separate question on the issue of breach alone. This course would permit, or so it was naively thought by the Court (and agreed to by the parties), the proceedings to conclude within two days.

30. After some discussion, it was agreed that the following separate question ought to be determined prior to any other issue in the proceedings:

The following questions adopt the below definitions for ease of reference:

Riparian Corridor means Lot 129 in DP 1215199;

Drainage Line A means the drainage line marked drainage line A in the Stage 3 Consent and the Stage 3 Roads and Drainage CC;

Culvert means the stormwater culvert located at the end of Drainage Line A;

Channelling Works means excavation of the unnamed watercourse on about 16 May 2019 to varying depths from the Culvert towards the railway corridor to the north for a length of approximately 120 metres;

First Activity Approval means Approval No 10 ERM2011/0587 as extended by Approval No 10CX122184;

Second Activity Approval means Approval No 10CX122289;

Works means the construction of Drainage Line A, Culvert and the Channelling Works;

Stage 1 Consent means the development consent granted to DA11/0546 on 26 April 2013 (as modified on 17 February 2014 and 27 May 2015); and

Stage 3 Consent means the development consent granted to DA16/0566 on 9 May 2017 (as modified on 23 January 2018).

1.   Was the construction of Drainage Line A and the Culvert carried out in breach of:

(a) s 4.2 of the Environmental Planning and Assessment Act 1979 by carrying out the development not in accordance with the Stage 3 Consent, which includes the Stage 3 Roads and Drainage CC; and/or

(b) ss 91E or 91G of the Water Management Act 2000 by carrying out the controlled activity not in accordance with the First Activity Approval and/or the Second Activity Approval.

2.   Were the Channelling Works carried out in breach of:

(a) s 4.2 of the Environmental Planning and Assessment Act 1979 by carrying out the development not in accordance with the Stage 1 Consent and/or the Stage 3 Consent; and/or

(b) ss 91E or 91G of the Water Management Act 2000 by carrying out the controlled activity not in accordance with the First Activity Approval or the Second Activity Approval.

The Location of the Constructed Drainage Line A and Culvert Was Always an Issue in Dispute

31. Relevantly for the purpose of this application, as expressly pleaded in the points of claim filed on 22 June 2020, the works comprising drainage line A and the culvert were alleged to be unauthorised because, among other things, the culvert and drainage line A were not built in the location approved by the stage 3 roads and drainage CC insofar as drainage line A and the culvert transect the watercourse and are located at a point further to the west of it.

32. The Council’s written submissions dated 4 July 2020 made it abundantly clear that the stage 3 consent plans approved the construction of drainage line A and the culvert on the eastern side of the watercourse (at paragraph 27). The Council further submitted that neither drainage line A nor the culvert were constructed in the location depicted in the plans certified by the stage 3 roads and drainage CC insofar as that CC approved plans showing the works on the eastern side of the watercourse, whereas drainage line A and the culvert were extended to cut across the watercourse to its western side (paragraph 38). The construction of drainage line A and the culvert so as to cut across the creek to its western side was also not in accordance with the second controlled activity approval (paragraph 44).

The First Application to Reopen

33. On 8 July 2020, that is, on the third day of the two day hearing, the respondents sought leave of the Court to reopen to rely on a further revised works as executed drawing 170112C1.23 Rev E that certified that certain works had been carried out. Relevantly, the further revised drawing indicated that drainage line A and the culvert had been constructed to the correct height, depth and length as approved by the stage 3 roads and drainage CC.

34. The application was not opposed by the Council.

35. Leave was therefore granted and the further revised drawing was received into evidence. Its effect was to narrow the issues for determination arising from the separate question, viz, the allegations that drainage line A and the culvert – and the height, depth and length of the channel works as a consequence - had been built to the wrong height, depth and length. These issues were resolved in favour of the respondents having regard to the decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; (2014) 206 LGERA 40 (see generally the exchange at T99:41-101:07 and 103:24-104:33).

36. This left only the issue of location. That is, that drainage line A and the culvert (and by logical corollary the associated channelling works) were not constructed as approved because they crossed the watercourse to the west whereas they ought to have terminated to the east of that watercourse and existing channel (T100:21-38).

37. The respondents replied by contending that if drainage line A and the culvert were constructed to the approved length − and to build it to some other length would have been in breach of the approval − then it had, of necessity, to transect the watercourse on its western side.

38. The Council responded by arguing that all that the respondents had to do to avoid breach was to carry out the works constituting the development at a different angle which would have permitted drainage line A and the culvert to be constructed to the correct length and in the correct location, namely, terminating to the east of the watercourse (T102:04-103:22). The Council sought to illustrate its submission by reference to the hands of a clock (T102:13-17 and 103:15-20).

39. Objection was taken by Mr Tomasetti SC to this reply contention on the basis that “the submission is made for the first time” (T105:15), that the argument had “never been pleaded or alleged. It takes us by surprise” and would be “prejudicial” (T105:21-23). Somewhat inconsistently with the latter submission, Mr Tomasetti SC went on to submit that the Council’s argument could nevertheless be rejected on the evidence before the Court (T105:25).

40. While the hand of a clock analogy may have been made for the first time in oral argument, the suggestion that the allegation that the development was constructed in the wrong location, namely, to the west of the watercourse, must be emphatically rejected. It remains the fact that the allegation about location was not only pleaded (see above at [31]) but was contained in the Council’s written submissions (see above at [32]). Any argument to the contrary by the respondents was entirely disingenuous.

41. In any event, the Court permitted the parties to file further written submissions in reply and indicated that if required, the matter would be relisted for further oral argument.

42. It is in this context that the second application for leave to reopen was made by the respondents.

Second Application for Leave to Reopen

43. The application was initially raised informally by email correspondence between the parties and then to the Court. This resulted in the matter being relisted whereupon orders were made for the filing and serving of a notice of motion, accompanying affidavit evidence, and written submissions. The motion was set down for hearing on what was to be day five of the two day matter.

44. As the affidavit of Ms Danielle Le Breton affirmed 14 July 2020, and filed on behalf of the Council established, the foreshadowed second application to reopen as communicated to the Council by way of service of a draft notice of motion was in respect of a completely different set of documents to those the subject of the actual application. In the result, wasted costs were incurred by the Council.

45. The evidence the subject of the second application for leave to reopen was attached to an affidavit of Ms Katherine Pickerd affirmed 13 July 2020. Ms Pickerd is the solicitor for the respondents.

46. The evidence comprised an email from Mr Mony Seng dated 13 July 2020. Mr Seng is a registered surveyor who had previously certified works as executed plans including the roads and drainage plans Rev E dated 25 May 2018 prepared by Barker Ryan Stewart and certified by Mr Seng on 29 August 2019, and plan 170112C1.23 Rev E to certify the chainages (length) on 10 July 2020 (the drawing the subject of the first application for leave to reopen). Mr Seng had also earlier authorised survey drawings for the site dated 2 October 2019.

47. The email went on to state:

4.   On 10 July 2020, I added an additional certification to the “Roads and Drainage Plans” to certify the as executed location of Line A on plan No. 170112C1.04 in the “Roads and Drainage Plans” prepared by Barker Ryan Stewart, revision E that have been stamped by LDC for Construction Certificate No. 14933.

5.   I satisfied myself as to the accuracy of the position of Line A and the headwall as constructed by reference to survey data in my files that ECP surveyors under my employ collected on during [sic] August 2019 when my staff surveyed the executed works on site. I am able to accurately plot that data onto the construction certificate “Roads and Drainage Plans” plan because the CAD file of the “Roads and Drainage Plans” plan contains embedded GPS coordinates which I used as a reference. I have also inspected the site after Line A was constructed.

6.   I overlayed the survey data collected onto the “Roads and Drainage Plans” plan.

48. Finally, the email noted that Mr Seng was on holiday in Queensland with “only access to my phone and so have limited ability to sign an affidavit”. Mr Seng stated that he had “read and agree to be bound by the Expert Witness Code of Conduct and would be prepared to adopt by certified drawing on oath [sic].” Attached to the email was drawing 170112C1.04, which was a fourth works as executed drawing.

49. In respect of the preparation of the fourth works as executed drawing, Ms Pickerd gave the following evidence:

Updated WAE Drawing

12   On 13 July 2020, I spoke with Mony Seng on his mobile phone and he said words to the effect of:

Mony Seng:   “I prepared the drawing late on Friday night before I left for Queensland.

I would be happy to sign an affidavit but I am in Queensland on holidays and I don’t have anything but my phone.”

13   In a subsequent conversation by phone on that day, I explained the expert witness code of conduct to Mony Seng and asked him to prepare a statement confirming how he prepared the works as executed plan to send me by email from his phone. We discussed the content of the statement by phone and Mr Seng asked me to draft the statement for him based on what he had said during the call to make it easier as he only had his phone to work off.

50. Thus the evidence revealed that there had been earlier communications with Mr Seng.

51. Ms Pickerd did not, in her affidavit, explain why Mr Seng’s evidence was not prepared and tendered earlier, especially in light of the fact that its preparation had been sought at some point prior to 13 July 2020 when it was finalised.

52. Nor did Ms Pickerd provide an explanation as to why the respondents had abandoned the foreshadowed application for leave to reopen on a different version of the works as executed drawing plan.

53. In her affidavit, Ms Le Breton deposed that were the email from Mr Seng and the attached drawing admitted into evidence, the Council would be prejudiced because it would not have had the opportunity of verifying the information contained in the drawing and it did not employ, or have access to at short notice, a qualified surveyor to advise the Council as to the drawing’s contents. Ms Le Breton stated that it would take at least “a number of weeks” to obtain expert evidence in response to Mr Seng’s evidence.

Legal Principles to be Applied in Applications for Leave to Reopen

54. The Uniform Civil Procedure Rules 2005 ("UCPR") do not contain a specific provision dealing with the reopening of a party's case. Instead a general discretion is conferred as to the conduct of the proceedings in r 2.1, which states that:

The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient... for the just, quick and cheap disposal of the proceedings.

55. Similarly, r 29.5 of the UCPR provides that, "the court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial".

56. These provisions, together with the principles set out in ss 56-60 of the Civil Procedure Act 2005 ("CPA"), are sufficient to give the Court the power to determine the application by the respondents to reopen their case.

57. To give effect to the overriding purpose contained in s 56 of the CPA proceedings must be managed having regard to the objects stated in s 57(1) of that Act. The Court is also obliged to act in accordance with the dictates of justice (s 58 of the CPA).

58. The principles governing an application for leave to reopen were set out in a summary way in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 (at [13]-[15]). They were articulated in more detail more recently in Goodman Fielder Consumer Foods Pty Ltd v GrainCorp Foods Australia Pty Ltd [2020] NSWSC 706 per Henry J, which I respectfully adopt (at [43]-[48]):

43 In Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Clarke JA (with whom Mahoney and Meagher JJA agreed) stated at 478:

“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 reason why the evidence was not led in the first place…”

44 Although decided prior to the introduction of the CPA and the UCPR, Urban Transport Authority of New South Wales v Nweiser has been accepted as an appropriate authority to be applied in a case seeking leave to re-open, as has the principle of whether the interests of justice are better served by allowing or rejecting the application: see for example The Movie Network Channels Pty Limited v Optus Vision Pty Limited [2009] NSWSC 132 at [4]; Gaskin v Ollerenshaw [2010] NSWSC 788 at [22]; N M Rural Enterprises Pty Limited v Rimanui Farms Limited [2011] NSWSC 1561 at [26]; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 (Bradshaw) at [26]; Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232 (Spotlight) at [26].

45   The Court approaches applications for leave to re-open differently depending on the time at which the application to re-open is made. Where an application is made to re-open to adduce new and additional evidence before judgment is delivered, it is relevant to consider whether there was a deliberate or tactical decision made not to call the evidence during the hearing. If such a decision was not made, a key consideration is whether the re-opening of the case would cause embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 at 266-267.

46   The authorities recognise four classes of case in which a court may grant leave to re-open, although the categories are not closed. The recognised categories are (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of the law: Bradshaw at [24]; Spotlight at [25] and [26].

47   Other factors that are relevant to consider on an application for leave to re-open to adduce further evidence and which bear on the interests of justice, include:

(a)   the importance, relevance and probative value of the proposed new evidence to the issues in the case;

(b)   the likely prejudice to the other party if the application is allowed, including the delay to completion of the proceedings and consequential costs;

(c)   the public interest in the finality of litigation, with the consequent expectation that parties will present their evidence and submissions at one hearing;

(d)   the public interest and the interest of the parties that the proceedings will be conducted efficiently and expeditiously, thereby minimising delay and expense;

(e)   whether the occasion for calling the further evidence ought reasonably to have been foreseen; and

(f)   any delay in making the application.

See Australian Securities and Investments Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826 at [18]; Spotlight at [17]; FYD Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 at [32].

48   Ultimately, the Court has a discretion whether to permit a party to re-open their case which must be exercised having regard to all the circumstances of the case and in a manner consistent with the public interest in a just, quick and cheap resolution of the real issues in the proceedings: Taouk v Louis (No 1) [2014] NSWSC 656 at [11]; The Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682 at [43]; Shaw v KPR Recruitment Australia Pty Ltd (No 2) [2017] NSWSC 707 at [15].

The Application for Leave to Reopen Must be Refused

59. The respondents submitted that leave to reopen ought to be granted because:

1. first, the survey evidence was in response to a submission initially made by the Council in reply at the hearing. That is, the issue of the “positioning” of the channel arose without notice to the respondents in argument at the hearing;

2. second, without the survey evidence the Council, a public body, would not have the best available information in making any determination on the facts;

3. third, the joint tender bundle was prepared with haste due to the abbreviated timetable set down by the Court for the preparation of the hearing;

4. fourth, there would be no waste of judicial resources by the inclusion of the survey evidence;

5. fifth, the Council should have requested further survey evidence from the respondents and did not do so;

6. sixth, the admission of the survey evidence would not necessitate any cross-examination;

7. seventh, the Council has not adduced any survey evidence that drainage line A was not built in the location identified on the stage 3 roads and drainage CC;

8. eighth, the Court should have the best available evidence before it when making its decision; and

9. ninth, no additional submissions or evidence would be required by reason of the admission of the survey evidence and no further time would be wasted.

60. The respondents’ submissions may be answered as follows:

1. first, as discussed earlier in the judgment, it was always part of the Council’s case that the development was carried out in the wrong location insofar as it transected the watercourse on the western side. The respondents have, or ought to have, been aware of this since the points of claim were filed. The allegation is repeated in the Council’s submissions. It is the subject of agreed facts (for example, paragraph 27 in Ex A). For the respondents to say that the contention takes them by surprise cannot in all seriousness be maintained;

2. second, the Council has already made a determination on the facts: it has determined that the development is without lawful authority. It never resiled from this position, including in the face of the survey evidence and further works as executed drawing by Mr Seng the subject of the application to reopen;

3. third, whatever urgency there was in the preparation of the matter for hearing was driven by the respondents, not the Council or the Court. In any event, the respondents consented to the truncated timetable and to the dates allocated for the hearing. They did so because while the undertaking is extant, no further development works can proceed and the delay adversely impacts third party purchasers of the lots (T127:40-128:41). Any omission of material demonstrating that no breach as asserted by the Council has occurred is the exclusive fault of the respondents. This is not to reverse the onus of proof in the proceedings − it is for the Council to establish breach. However, the Council maintains that it has done so on the material in evidence. If there is survey evidence available to the respondents that proves otherwise, it was the responsibility of the respondents, not the Council, to bring this evidence forward;

4. fourth, in circumstances where, if leave to reopen is granted, the unchallenged evidence of the Council was that it would need to engage a surveyor to review or respond to Mr Seng’s evidence thereby resulting in the proceedings being adjourned part-heard, there is no doubt that further judicial resources will be incurred in the finalisation of the proceedings;

5. fifth, the burden of proof requires the Council to establish breach, not, as the respondents seem to suggest, to adduce evidence to establish an absence of breach;

6. sixth, as Ms Le Breton deposed, the granting of leave to reopen and the admission of the expert survey evidence may necessitate the Council adducing expert survey evidence in reply which may result in concurrent evidence being given, with attendant cross-examination of the expert surveyors;

7. seventh, the Council has adduced evidence that it says establishes breach in the manner contended. Were it otherwise, presumably there would be no necessity for the evidence the subject of the application for leave to reopen;

8. eighth, while is it plainly preferable for the Court to have the best available evidence before it in making its decision, the Court must also consider in the exercise of its discretion to grant leave to reopen the proportionality of costs if leave is permitted (s 60 of the CPA). In circumstances where this is the second application for leave to reopen by the respondents, where this is the fifth day of a two day matter, where a grant of leave would cause the proceedings to be adjourned part-heard in order to allow the Council to meet the evidence, and importantly, where Mr Doyle candidly admitted that Mr Seng’s survey evidence was not strictly necessary (and thus its probative value was more equivocal) (T136:38-137:04 and 140:11-25), this tells against the grant of leave; and

9. ninth, to reiterate, it was Ms Le Breton’s unchallenged evidence that it is entirely possible that additional evidence would be needed to meet Mr Seng’s expert evidence.

61. There were several additional matters that weighed against the Court exercising its discretion to grant leave to reopen to the respondents. First, there was the form in which the evidence was put before the Court, namely, as an email annexed to Ms Pickerd’s affidavit. Presented in this way the evidence was, as Mr Doyle correctly admitted (T137:13), inadmissible. Not only had no direction been sought from the Court to adduce the expert evidence (r 31.19 of the UCPR), the evidence did not comply with any of the requirements of an expert report (r 31.21 of the UCPR). Moreover, it was hearsay.

62. That Mr Seng was in Queensland with only his mobile phone was not a legitimate excuse not to put his evidence in the correct form. If the evidence was, as the respondents submit, sufficiently important to warrant the application to reopen it is inconceivable that appropriate arrangements could not have been made. This is especially the case when the affidavit of Ms Pickerd discloses that Mr Seng prepared his survey evidence prior to his departure to Queensland. No cogent reason has been given as to why a compliant expert report could not have been prepared and served on the Council in advance of the application to reopen. And no cogent explanation has been proffered as to why this evidence was not put before the Court earlier by the respondents during their case.

63. For Mr Doyle to suggest, by way of a solution, that Mr Seng be made available to swear that the contents of his email and the further works as executed drawing were true and correct, was contradictory to the evidence given by Ms Pickerd, and for that matter Mr Seng, that he only had access to his phone, and therefore, could not properly prepare an expert report. It also gave no notice to the Council to prepare a cross-examination of Mr Seng.

64. At one point Mr Doyle applied to adjourn the application to reopen the respondents’ case in order to allow Mr Seng’s evidence to be prepared in an admissible form. However, in light of the further delay this would have caused to the finalisation of the application, and in turn to the proceedings, the diminished probative value of the evidence (occasioned by Mr Doyles’s concession that other evidence existed to establish that the development was constructed in the approved location), and the absence of any reasonable explanation as to why the survey evidence was not obtained earlier by the respondents, the adjournment application was refused.

65. Second, if anyone was taken by surprise in the proceedings, it was the Council in being led to believe that it had to meet the foreshadowed application for leave to reopen rather than the actual application for leave to reopen. In this regard, the Council suffered prejudice in the form of wasted costs and a reduction in the time to prepare for the hearing of the actual application. The Council was also disadvantaged by the fact that it could not meet Mr Seng’s evidence absent having the matter adjourned part-heard with attendant further delay and costs. Such delay is neither trivial nor wholly able to be remediated by costs. This is because if the Council is successful in its civil enforcement claim, remediation works to the watercourse will need to be carried out by the respondents.

66. In summary, having regard to the four classes of case in which a court may grant leave to reopen (although the categories are not closed), the survey evidence was available to the respondents prior to the making of the application; the affidavit of Ms Pickerd did not indicate that the failure to adduce it earlier was due to inadvertent error; and I categorically reject the assertion that there was any misapprehension as to the facts or law by the respondents having regard to the pleadings and submissions filed by the Council in advance of the hearing commencing.

67. Having regard to the circumstances of this application and applying the factors and principles referred to above, in my opinion, the application for leave to reopen must be refused.

Costs

68. Having been unsuccessful in their application, and these being Class 4 proceedings, costs ought to follow the event. Such an order is all the more appropriate in light of the unsatisfactory manner in which the application was brought.

69. In this regard, in addition to the Council’s costs of the actual second application for leave to reopen, the respondents should also be liable for the Council’s wasted costs of preparing for the foreshadowed application to reopen which was abandoned by the respondents.

Orders

70. For all these reasons, the Court made the following orders at the conclusion of the hearing of the second application for leave to reopen:

1. the notice of motion filed on 13 July 2020 is dismissed;

2. the respondents are to pay the applicant’s costs of the motion, including the application to adjourn the motion; and

3. the respondents are to pay the applicant’s costs thrown away preparing for the foreshadowed draft notice of motion attached to the email from Ms Katherine Pickerd to Ms Jane Hewitt and others dated 10 July 2020 at 1.33pm.

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Decision last updated: 24 July 2020