Pittking Properties Pty Ltd v Waverley Council - [2020] NSWLEC 21

Land and Environment Court

New South Wales

Medium Neutral Citation: Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21
Hearing dates: 16 and 17 October 2019
Date of orders: 20 March 2020
Decision date: 20 March 2020
Jurisdiction: Class 4
Before: Moore J
Decision:
(1)   The summons is dismissed;
(2)   The Applicant is to pay the Respondent’s costs as agreed or assessed; and
(3)   The exhibits are returned.

Catchwords: JUDICIAL REVIEW - Council development project -assessment pursuant to Part 5 of the Environmental Planning And Assessment Act 1979 - meaning of requirement that potential environmental impact be assessed “to the fullest extent possible” - phrase means “to the fullest extent reasonably possible” - was the test satisfied by the Council's General Manager’s assessment before determining to approve the proposal - merits of General Manager’s assessment not to be reviewed - General Manager’s assessment satisfied the test - Ground 1 rejected
JUDICIAL REVIEW - no environmental impact statement prepared - was environmental impact statement required - was requirement for an environmental impact statement a jurisdictional fact - effect of 2015 legislative changes - if jurisdictional fact, was the Council project “likely to significantly affect the environment” - appropriate to commenced by factual examination - consideration of expert traffic evidence - conclusion that project was not likely to significantly affect the environment - unnecessary to consider legal issues as evidentiary basis for challenge not made out - Ground 2 rejected
JUDICIAL REVIEW - Council project for a cycleway - was the route of the proposed cycleway uncertain so as to affect the validity of the General Manager’s approval - no uncertainty as to route of cycleway - Ground 3 rejected
COSTS - costs ordinarily follow the event in judicial review proceedings - no reason to depart from usual position - Applicant to pay the Respondent’s costs as agreed or assessed.
Legislation Cited: Electricity Network Assets (Authorised Transactions) Act 2015, Sch 8.12
Environmental Planning and Assessment Act 1979,
ss 5.5 – 5.7 and 5.10
Environmental Planning and Assessment Regulation 2000, cl 228
Interpretation Act 1987, s 34(2)(e) and (f)
Uniform Civil Procedure Rules 2005, Pt 42 r 1
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1
Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229
Goldberg v Waverley Council [2008] NSWLEC 49
Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353
Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Oshlack v Rous Water [2013] NSWCA 169; (2013) 194 LGERA 39
Pittking Properties Pty Ltd v Waverley Council [2019] NSWLEC 122
Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41
Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193
Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598
Texts Cited: Macquarie Dictionary
Oxford English Dictionary
Category: Principal judgment
Parties: Pittking Properties Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
Mr I Hemmings SC/Ms R McEwen, barrister (Applicant)
Mr A Galasso SC/Mr D Robertson, barrister (Respondent)
Solicitors:
Reid & Vesely (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 255402 of 2019
Publication restriction: No

TABLE OF CONTENTS

Introduction
Pepper J’s Fullerton Cove decision and s 5.7(1) of the Environmental Planning and Assessment Act 1979
The grounds of the Company’s challenge
Council’s response to the remaining matters pressed
The relevant statutory provisions
The evidence
General
Expert evidence

The General Manager’s Statement of Reasons
My decision-making context
Ground 1
Introduction
The Company’s submissions on Ground 1
The Council’s submissions on Ground 1
Consideration

Ground 2
Introduction
The position advanced by the Company
The Council's general response to the jurisdictional fact proposition

The competing decision-making matrices
The preferable decision-making process
Understanding the s 5.7(1) obligation
Introduction
“Likely”
“Significantly”

The alleged environmental effects of the cycleway
Introduction
The approach to be taken to the expert evidence
Introduction
The submissions concerning the approach to the conflicting expert positions
The general approach appropriate to be taken

The expert evidence
Introduction
The Council’s objections to the expert evidence
Introduction to consideration of the expert evidence
Testing Mr McLaren's complaints
The Newland Street/Spring Street intersection
Consideration of the position of the Spring and Newlands Streets intersection

Other matters pressed by Mr McLaren
Introduction
Mr McLaren’s costing criticism
Mr McLaren's safety audit criticism
Other matters concerning alternative routes
Intersection of Oxford Street/Bronte Road/Grosvenor Street
Waste collection operations

Merit conclusion on Ground 2
The legal issues
Overall conclusion on Ground 2

Ground 3
Introduction
The Company’s position
The Council’s response
Resolution of Ground 3

Conclusion
Costs
Orders

JUDGMENT

Introduction

In 2014, Waverley Council (the Council) commenced a planning process for a possible cycleway to run in a generally east-west direction from Bronte Road (in the east) to the north-eastern corner of Centennial Park to the west. Although this process involved an analysis of a range of alternative potential routes for the cycleway, in 2019 a final route was selected and a formal determination by the Council's General Manager (on 17 May 2019) pursuant to delegated authority was made to proceed with construction along the selected route.
On 16 August 2019, Pittking Properties Pty Ltd (the Company) commenced these Class 4 judicial review proceedings. The Company challenges the validity of the decision-making process undertaken for the Council in granting approval for its own cycleway project.
On 23 August 2019, Pain J expedited the hearing of the Company’s Summons (Pittking Properties Pty Ltd v Waverley Council [2019] NSWLEC 122). In [11] to [13], her Honour dealt with the question of the preparation of expert evidence in these proceedings. As a consequence of granting expedition, her Honour did not deal with the opposition by the Council to the preparation of such expert material in these proceedings and noted that, on the basis of the decision of Pepper J in Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 (Fullerton Cove) (at [300]), expert evidence may be called with respect to Ground 2. Although there was some discussion of Pain J’s decision in the proceedings before me, there is no suggestion that her Honour went beyond permitting the preparation of that evidentiary material and certainly did not make any anticipatory evidentiary ruling on its admissibility.
As Molesworth AJ observed in Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88, at [42], when permitting the preparation and filing of such evidence, questions of admissibility of such evidence in judicial review proceedings is a matter for the trial judge.
Relevant to the facts engaged in these Class 4 judicial review proceedings, an element of the selected route runs along Spring Street in Bondi Junction between Denison Street and Bronte Road. A plan showing the selected route is reproduced at Annexure A (taken from the May 2019 Review of Environmental Factors - Exhibit E, Tab 36 at folio 1635).
Construction of the proposed cycleway had commenced at the time of hearing and was ongoing.
The Company owns a property at 175-181 Oxford Street, Bondi Junction. This property is known as the Royal Arcade, an arcade which runs from Oxford Street in the north (with its entry at the northern end being from the Oxford Street Mall) to Spring Street in the south, where it fronts the portion of that street where the challenged cycleway is proposed to run.
The Company's written submissions, say, at [3]:

The Applicant is not opposed to the Project, except insofar as it is routed via Spring Street, rather than the alternative route along the Oxford Street Mall.

In the introduction to its written submissions, the Council made this observation concerning the above comment:

This concession reveals that the applicant's true complaint is with the merits of the Council's decision as to the chosen route for the cycleway, rather than with the legality of the decision-making process.

I observe that I am satisfied that this comment is a correct reflection of the nature of the proceedings pursued for the Company as I have concluded that, in several guises, what is sought by the Company is that I undertake an impermissible comparative merit review of the route of the proposed cycleway. I am satisfied that there is no basis advanced by the Company that would warrant me departing from the mandated terms of a judicial review, these being confined to whether the Council fulfilled its statutory obligations attaching to the General Manager giving approval to the project.

Pepper J’s Fullerton Cove decision and s 5.7(1) of the Environmental Planning and Assessment Act 1979

As will become obvious from the material subsequently dealt with in this decision, including the setting out of the relevant statutory provisions; the grounds advanced on behalf of the Company and the submissions of the parties (as summarised), a significant proposition arose from whether or not, in the present-day context, s 5.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) gave rise to an objective jurisdictional fact. This position, advanced by Mr Hemmings SC for the Company, was summarised, briefly, early in the written submissions for the Company in the following terms:

17 Section 5.7(1)(a) of the EPA Act provides that “a determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is … an activity that is likely to significantly affect the environment” unless it has “obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity” which has been prepared in the prescribed way. In this case it is common ground that no such EIS was obtained because the Council formed the view that the Project was not an activity that was “likely to significantly affect he environment”.
18   “Likely” means a “real chance or possibility” rather than “more probable than not”: Fullerton Cove at [227]-[228].
20   “Significantly” means “important”, “notable”, “weighty” or “more than ordinary”: Fullerton Cove at [228].
21   In Fullerton Cove, Pepper J had occasion to consider whether the issue of whether an activity is likely to significantly affect the environment in s 112(1) (now s 5.7(1)) gave rise to an objective jurisdictional fact. Her Honour concluded at [300] that:
“[section] 112(1) of the EPAA gives rise to a jurisdictional fact that the court must determine for itself on all the available evidence, including the expert evidence tendered by the parties, whether or not the [activity] is likely to significantly affect the environment.”

Based on the Council’s Response to Summons, that conclusion does not appear to be challenged in these proceedings. That is, the Court will need to determine for itself whether the Project, or any aspect of it, is likely to significantly affect the environment.

Unsurprisingly, this approach was resisted by Mr Galasso SC for the Council. The resistance was on three separate and distinct bases. The first was that Pepper J's decision on this point in Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 was plainly wrong and that, despite principles of judicial comity, I was not bound to accept and follow her Honour's reasoning.
Quite separately, although necessarily not needing to be developed as extensively as this first proposition, Mr Galasso relied on a change to the legislative framework since the decision in Fullerton Cove as a basis upon which he submitted that, even if I was satisfied that Fullerton Cove was correctly decided on the law as it then stood, that position had changed in a sufficiently material fashion so that that conclusion was no longer apt to be drawn.
As a final position, although not accepting it was permissible or necessary, Mr Galasso also submitted that an Environmental Impact Study (EIS) was not required on a proper consideration to the expert evidence filed in the proceedings.
During the course of his oral submissions, in addition to comprehensive specific written submissions on this issue of jurisdictional fact, Mr Galasso took me through, in considerable detail, Pepper J's decision in Fullerton Cove to explain to me why he proposed I should conclude that her Honour's decision was in error.
My consideration of these submissions has necessitated my reading (and rereading several times) Pepper J's lengthy and comprehensive decision in Fullerton Cove. That has taken considerable time and effort on my part during the period which has intervened since I reserved my decision in this matter.
Upon mulling over all of the matters put by Mr Galasso in criticism of her Honour's reasoning on a wide range of points, I have eventually reached the position of concluding that it is unnecessary for me to respond to each of the criticisms made of her Honour's decision or of the overall conclusion reached by her that, in the then applicable statutory context, s 5.7(1) gave rise to a requirement for the Court to consider the jurisdictional fact of whether an EIS was required.
Nor, I am separately satisfied, do I need to deal with the change in the legislative scheme effected since her Honour's decision, subtle though it may be considered to be, to assess whether it has altered the position sufficiently so that her Honour’s conclusion, as to matters of jurisdictional fact, no longer remains valid.
Although I have spent considerable time since I reserved my decision grappling with the criticism Mr Galasso made of her Honour's decision in Fullerton Cove, the conclusion I have reached as to the lack of factual merit in the Company’s position means that it is unnecessary for me to address, in any aspect, those legal criticisms.

The grounds of the Company’s challenge

The Summons commencing the proceedings pleaded three grounds upon which it was said that the decision to proceed with the cycleway was infected with error and should be set aside.
The first two of those grounds were supported by a number of particulars. However, during the course of the hearing, Mr Hemmings indicated that a number of the specific aspects of the complaint as particularised were no longer pressed.
As a consequence, the hearing proceeded on a more limited basis than had originally been pleaded. As a result of this confining of issues, the grounds pleaded requiring to be considered are in the following terms:

Ground 1 - breach of section 5.5(1) of the EPA Act
1   The Respondent failed to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity, in that it failed to obtain or undertake further work, studies and steps necessary in order to properly and fully consider the impacts of the Project, including:
a.   …
b.   …
c.   …
d.   …
e.   …
f.   Swept path analysis of appropriately sized heavy vehicles accessing the Loading Zones, Truck Zones and driveways on both sides of Spring Street
g.   …
h.   …
i.   …
j.   Quantitative analysis of the likely impact on local businesses and landowners directly affected by the proposed cycle path
k.   …
l.   Detailed loading study for at least the two preferred route options and a recommendation on the preferred path of travel for both options.

Ground 2 - breach of section 5.7(1) of the EPA Act
1   The Respondent failed to obtain, be furnished with, examine or consider an environmental impact statement in respect of the activity, in circumstances where the Project is and was an activity that is likely to significantly affect the environment, in that the Project raises numerous traffic and traffic safety issues, including the following:
a.   …
b.   …
c.   Vehicle/cyclist conflict at the intersection of Bronte Road/Oxford Street resulting from the newly introduced cyclist movements at the intersection. No detail has been provided to explain how these movements will be controlled such that there is no conflict between cyclist, pedestrian and vehicle movements through the intersection
d.   …
e.   …
f.   Conflicts with loading operations on Spring Street, including:
i.   Opening of doors into the path of cyclists;
ii.   Transporting of goods across the cycling path;
iii.   Potential stacking of goods in the cycling path during unloading operations;
iv.   Cyclists shying away from goods and colliding with one another on the narrow path.

g.   …
h.   Conflicts with kerbside car parking, which is in high demand including:
i.   Opening of doors into the path of cyclists;
ii.   Persons crossing the path to/from cars;
iii.   Location and offset from of parking ticket machines;
iv.   Clearance to vehicles and obstacles along the edge of the path that may cause cyclists to shy away from the edge of the narrow path and collide with one another.

i.   …
j.   …
k.   Vehicle/cyclist/pedestrian conflicts at the signalised intersection of Newland Street/Spring Street. No detail has been provided to explain how these movements will be controlled such that there is no conflict between cyclist, pedestrian and vehicle movements through the intersection
l.   Conflicts between cyclists and vehicles entering and exiting the numerous driveways along Spring Street and along Denison Street. Some of these driveways serve loading areas which vehicles will be required to reverse into or out of across the path.
m.   …
n.   Numerous opportunities for conflicts between cyclists, pedestrians and vehicles at the intersection of Spring Street and Denison Street.
i.   Warrants for pedestrian crossing are not met along Denison Street, which may pose a danger to pedestrians;
ii.   Unclear priority/right of way between pedestrians and cyclists and the high proportion of children using the crossing of Spring Street;
iii.   Poor sight distances for drivers approaching from north along Denison Street to cyclists approaching the crossing of Denison Street from both directions;
iv.   Extremely close spacing of conflict points will give cyclists in particular very little time to assess the safety of traversing the two pedestrian crossings.

o.   The conflict between cyclists and pedestrians at the crossing of Denison Street at the Oxford Street/Denison Street intersection:
i.   The existing pedestrian refuge is proposed to be removed (whilst another stream of conflict is introduced), reducing pedestrian safety.
ii.   It is unclear whether pedestrians or cyclists will have priority at this crossing.

Ground 3 - absence of finality/certainty
3 The scope of the “activity” purported to have approved by the Decision is uncertain, in that it has been assumed that the cycleway can extend along Oxford Street on the northern boundary of the Waverley bus depot, although the future development of that site (if any) has not yet been determined.

Council’s response to the remaining matters pressed

It is now appropriate to reproduce, from the Council’s Points of Defence, those elements relating to the matters that remained pressed on behalf of the Company. These elements were in the following terms:

RESPONSE TO GROUNDS
Ground 1
1 The Respondent denies Ground 1. In further answer to Ground 1 the Respondent says:
(a) Abandoned

(b)   Abandoned
(c)   Abandoned
(d)   Abandoned
(e)   Abandoned
(f)   as to sub-paragraph 1(f):
(i)   Swept path analysis for key intersections and driveways was undertaken in the Parsons Brinkerhoff Assessment, which was incorporated as Appendix G to the REF Report.
(ii)   EMM reported on that assessment at paragraph 3.4 of the REF Report.
(iii)   Additional swept path analysis was undertaken of the truck and loading zones in Spring Street in the development of design for the Project presented to the WTC in April 2015.

(g)   Abandoned
(h)   Abandoned
(i)   Abandoned
(j)   as to sub-paragraph 1(j):
(i)   a qualitative assessment of likely impacts to local businesses and landowners was undertaken (refer to Appendix E and paragraph 7 of the REF Report).
(ii)   a quantitative analysis was not required in the circumstances of the project. Further or in the alternative the undertaking of the analysis as pleaded would be unduly onerous in the circumstances.

(k)   Abandoned
(l)   as to sub-paragraph 1(l):
(i)   the First Bitzios Assessment included an assessment of the loading activities along the route of the cycleway in Bondi Junction.
(ii)   the Second Bitzios Assessment updated the First Bitzios Assessment (Appendix J to the REF Report).
(iii)   Parsons Brinkerhoff considered the First Bitzios Assessment in preparing the Parsons Brinkerhoff Assessment (Appendix G to the REF Report) and by STC in preparing the STC Assessment (Appendix D to the REF Report).

Ground 2
2 The Respondent denies Ground 2. In further answer to Ground 2 the Respondent says:
(a) the Project is not an activity likely to significantly affect the environment as provided in s 5.7(1) of the EPA Act; and
(b) accordingly, the Respondent was not required to obtain, be furnished with, examine or consider an environmental impact statement pursuant to s 5.7(1) of the EPA Act.

Ground 3
3 The Respondent denies Ground 3.

The relevant statutory provisions

Part 5 Infrastructure and environmental impact assessment of the EP&A Act contains, in subdiv 3 Activities for which EIS required of Div 5.1 Environmental impact assessment (except for State significant infrastructure), four sections (ss 5.5-5.7 and 5.10) which potentially required consideration in these proceedings. These four sections are in the following terms:

5.5   Duty to consider environmental impact
(1)   For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
(2)   (Repealed)
(3)   ….
(4)   (Repealed)

5.6   Regulations for environmental impact assessment by prescribed determining authorities
(1)   In this section, prescribed determining authority means a person prescribed for the purposes of the definition of public authority in section 1.4(1) so as to allow the person to be a determining authority within the meaning of this Division.
(2) The regulations may make provision for or with respect to the exercise by a prescribed determining authority of its functions under section 5.5 (environmental impact assessment functions), including (without limitation) provision for or with respect to the following—
(a)   the manner in which environmental impact assessment functions must be exercised including the matters that must be considered in the exercise of those functions,
(b)   requirements for public and other consultation in connection with environmental impact assessment functions, including requirements for consultation with the Planning Secretary and the consideration of advice given by the Planning Secretary,
(c)   requirements for the documentation of the exercise of environmental impact assessment functions (assessment documentation),
(d)   requirements for making assessment documentation available to the Minister and the Planning Secretary and for the public release of assessment documentation,
(e)   requirements for auditing the exercise of environmental impact assessment functions and compliance with requirements imposed by or under the regulations.

(3) The regulations may provide for the approval by the Minister of a code (an approved code) that makes provision for or with respect to the matters for which the regulations under this section may make provision.
(4) An approved code may make provision for or with respect to a matter by applying, adopting or incorporating, with or without modification, the provisions of a specified document as in force for the time being or a document formulated, issued or published by a specified person or body.

Subdivision 3 Activities for which EIS required
5.7   Decision of determining authority in relation to certain activities
(1)   A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment, unless—
(a)   the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity—
(i)   …, and
(ii)   …,

(b)   …,
(c)   …,
(c1)   (Repealed)
(d)   …, and
(e)   ….

5.10   Regulations
The regulations may make provision for or with respect to—
(a)   the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment,
(b)   the preparation, contents, form and submission of environmental impact statements,
(c)   the making of environmental impact statements available for public comment, or
(d)   the methods of examination of environmental impact statements and submissions made with respect to activities to which any such statements relate.

A further, potentially relevant, provision is cl 228 of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation). This is in the following terms:

228   What factors must be taken into account concerning the impact of an activity on the environment?
(1)   …
(2)   The factors referred to in subclause (1)(b)(ii) are as follows—
(a)   any environmental impact on a community,
(b)   any transformation of a locality,
(c)   any environmental impact on the ecosystems of the locality,
(d)   any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,
(e)   any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,
(f) any impact on the habitat of protected animals (within the meaning of the Biodiversity Conservation Act 2016),
(g)   any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,
(h)   any long-term effects on the environment,
(i)   any degradation of the quality of the environment,
(j)   any risk to the safety of the environment,
(k)   any reduction in the range of beneficial uses of the environment,
(l)   any pollution of the environment,
(m)   any environmental problems associated with the disposal of waste,
(n)   any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,
(o)   any cumulative environmental effect with other existing or likely future activities,
(p)   any impact on coastal processes and coastal hazards, including those under projected climate change conditions.

The evidence

General

The evidence comprised the Court Book (Exhibit A); a document entitled “Bondi Junction Cycleway Route Comparison” (Exhibit 1) (being an A3 table containing various comparison assessment factors for seven identified potential routes for the cycleway); a printout of a PowerPoint presentation given as part of the Council’s assessment process (Exhibit 2); and an affidavit of Ms Sharon Cassidy, Executive Manager Major Projects of the Council. This was the second affidavit given by Ms Cassidy, as her principal one, to which the bulk of the documentary material had been exhibited, was contained in Exhibit B.
Six volumes of documentary material (Exhibits B to G) totalling a little over 2,700 pages were also tendered.
In this context, it is to be observed that, despite this volume of written material tendered for the Company, I was taken to a very limited number of pages of this material. At a generous estimate, I may have been taken to, perhaps, 200 pages of this material, with the remainder of it not being addressed for the purpose of this process. However, for the purpose of my decision-making, I have needed to read significantly more of the tendered material for the purposes of making a proper assessment of the merit complaints made for the Company and the Council’s evidence responding to them.
It is also fair to say that, as to the content of the material to which I was taken, the very large portion of that material related to the merits of the proposed cycleway (whether as to an assessment of any of the individual elements of it or as to the processes undertaken for the assessment of those merit aspects).
As I observed at [6], the Company acknowledged that it was not opposed to the proposed cycleway but merely to that portion of it along Spring Street - with respect to which section it was the Company’s preference that the cycleway run through the Oxford Street Mall, it being located one block to the north of Spring Street. A deal of the material to which I was, in fact, taken in the evidence related to what the Company put were:

the deficiencies, on a merit basis, of the analysis concerning the Spring Street section of the cycleway; or

how the cycleway could, appropriately, be routed through the Oxford Street Mall.

For the reasons discussed later, the implicit invitation that I embark on an impermissible review of the comparative route merits of the determination made to proceed along the cycleway route incorporating Spring Street but not adopt the Oxford Street Mall route as the better alternative in lieu of Spring Street is rejected.

Expert evidence

On the basis that I might need to consider expert evidence (depending on the view which I took concerning the various grounds), detailed statements of evidence were provided by traffic engineering experts on behalf of the Company and the Council. These were from Mr McLaren, traffic expert for the Company (Exhibit B, Tab 1, folios 1 to 197), and Mr Hollyoak, traffic expert for the Council (Exhibit B, Tab 2, folios 198 to 277). In addition to their individual expert reports, Mr McLaren and Mr Hollyoak conducted the usual joint expert conferencing process and produced a Joint Expert Report (Exhibit G, Tab 5, folios 2362 to 2502).

The General Manager’s Statement of Reasons

On 6 September 2019, a Statement of Reasons prepared by the General Manager of the Council was filed. A copy of that Statement of Reasons (Exhibit A, Tab 5) is reproduced as Annexure B to this decision.

My decision-making context

Before turning to address each of the individual grounds and the remaining particularised matters pressed by the Company, it is appropriate to make a general observation concerning the nature of these proceedings.
In Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1, Brennan J said, at [17]:

17 Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful.
…
The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

As a consequence, it is appropriate to note that the General Manager of the Council made his decision and has provided a Statement of Reasons, outlining the basis upon which he has done so. To the extent that that sets out his approach to the merits of the matters to which he had had regard in making his decision, there is, as a matter of generality, expressly no role for me to undertake in reviewing the merits of this approved cycleway. It is in that broad context that I turned to address the grounds (particularly Grounds 1 and 3) pressed by the Company in the form for which Mr Hemmings contended during the course of the hearing.

Ground 1

Introduction

I have earlier set out the limited residual bases advanced on behalf of the Company in support for this ground. For my consideration of it, I need to address two matters. The first is the approach to be taken to interpretation of s 5.5(1) of the EP&A Act and the nature of the obligation imposed on the General Manager by it.
The second is identification and examination of the scope of matters considered as part of the General Manager’s decision-making process, in light of the remaining complaints particularised for the Company and the response made on behalf of the Council in this regard.

The Company’s submissions on Ground 1

Mr Hemmings submitted that the words “to the fullest extent possible”, in s 5.5(1) of the EP&A Act, have been previously read down to mean “to the fullest extent reasonably possible” and this approach is contrary to the current approach to statutory interpretation (citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, at [47], and Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193, at [30], in support of this submission).
Mr Hemmings submitted the correct approach to the statutory test is to consider whether the Council complied with the statutory test in s 5.5, which is to consider whether or not the Council examined and took into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity. Mr Hemmings submitted that, on either approach, there was still a failure by the Council to fulfil the requirements of the statutory test.
Mr Hemmings also put that, in s 1.4(1) of the EP&A Act, “environment” is defined very broadly and the Council had not addressed his proposition that traffic and traffic safety impacts of a proposed activity fall within that definition. He gave the example of Goldberg v Waverley Council [2008] NSWLEC 49, where Lloyd J held, at [65], that issues of pedestrian safety associated with use of a footpath and potential conflict with vehicles using a proposed driveway was an aspect of the statutory definition of "environment" that warranted consideration under what was then s 111 (now s 5.5) of the EP&A Act.
However, in his closing oral submissions, Mr Hemmings appeared to retreat from what I have set out above in [37] and [38], as he said (Transcript, 17 October 2019, page 48, lines 48 to 50):

To the extent there is a very high statutory bar imposed upon the decision maker in 5.5 because of the language “to the fullest extent possible”, mollified [sic - modified?] by “fullest extent reasonably practicable” …

Despite that, given that (as explained below) the Council put a contrary position based on authority, it is appropriate to explain why s 5.5(1) is to be read as if the word “reasonably” appeared between the words “extent” and “possible”.

The Council’s submissions on Ground 1

Unsurprisingly, Mr Galasso’s submissions were diametrically opposed to those of Mr Hemmings. He submitted that the Council complied with its obligations under s 5.5(1) of the EP&A Act, taking into account “to the fullest extent reasonably possible all matters affecting or likely to affect the environment by reason of the activity prior to approving the project”.
Mr Galasso noted that the Court of Appeal had been consistent in its interpretation of s 5.5(1) (and its predecessor, s 111) as meaning “to the fullest extent reasonably possible” and it is not open to the Court to reinterpret the section as submitted by the Company.
Mr Galasso then cited a number of authorities that he submitted made it clear that the interpretation he advanced was the correct one. As I understood him, he accepted that this was a significant obligation but not one as unreasonably exhaustive as would be required if the interpretation proposed by Mr Hemmings was to be adopted (citing Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 (Guthega Development) at 366; Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 (Transport Action Group) at [68]; Oshlack v Rous Water [2013] NSWCA 169; (2013) 194 LGERA 39 (Oshlack) at [32], [173]).
Mr Galasso also submitted that the Council had adduced evidence which demonstrated that the Council had complied with its obligations under s 5.5(1) of the EP&A Act and cl 228 of the EP&A Regulation, providing details of this material in his submissions (Respondent Written submissions, [27]-[32]). It is appropriate to reproduce these paragraphs (footnotes omitted), as they list critical steps taken by the Council during the assessment process.

27 Council has adduced evidence which demonstrates that Council has complied with its obligations under s 5.5(1) of the EP&A Act and clause 228 of the EP&A Regulation.
28   In particular, in August 2018 Council engaged EMM Consultants to prepare a Review of Environmental Factors report for the Project.
29   In January 2019, EMM Consultants prepared the Bondi Junction Cycleway and Streetscape Upgrade Review of Environmental Factors dated January 2019 (REF). The REF assessed the Project against clause 228 of the EP&A Regulation, in order for Council to fulfil its duty under s 5.5(1) of the EP&A Act. The applicant does not make any criticisms of the REF.
30   Furthermore, following receipt of the REF, Council placed the REF on public exhibition, and Council also engaged LK Planning to conduct a peer review of the REF and a review of public submissions on the REF.
31   Following public exhibition and peer review of the REF, EMM Consultants prepared a revised REF dated 8 May 2019 (Revised REF). Again, the applicant does not make any criticisms of the Revised REF.
32 The Revised REF was also peer reviewed by LK Planning, which concluded that, based on the matters in the Revised REF, Council could be satisfied that it had met its obligations under s 5.5(1) of the EP&A Act.

On the basis of these steps, Mr Galasso submitted:

33 Therefore, Council has complied with its obligations under s 5.5(1) of the Act to examine and take into account, to the fullest extent reasonably possible, all matters affecting or are likely to affect the environment by reason of the activity prior to approving the project.

Mr Galasso also addressed the issue of the admissibility of the expert evidence. He submitted that the expert evidence was not admissible in respect of any of the grounds in the Summons.
In respect of Ground 1 he cited Fullerton Cove, where Pepper J held that expert evidence may be admissible “to show what inquiries ought to have been made as a precursor to the examination exercise, and if they had been made, what those inquiries would have revealed” (at [144]) and submitted that therefore expert evidence is not admissible for determining whether the decision-maker had complied with the duty to take into account to the fullest extent reasonably possible the matters in s 5.5(1) and cl 228(2) (citing [143] of her Honour’s decision).

He submitted that in the present proceedings the expert evidence went to the merits of Council’s decision, not what enquiries the Council ought to have made but did not make or, as I understood him, the extent to which the General Manager addressed the matters to which he was obliged to turn in fulfilling his obligations pursuant to s 5.5(1) of the EP&A Act.

Consideration

I turn, first, to the question of statutory construction. In Guthega Development, Samuels JA (Mahoney and Priestley JJA concurring) considered the nature of the obligation that was imposed by the (then) s 111 (now s 5.5) and how it is to be understood. His Honour said (at 366):

At the same time, it can scarcely be read literally in without some modification of its terms. For example, the phrase “to the fullest extent possible” would present an insoluble problem to an administrator since it would be necessary to search the aggregated knowledge of the experts of the world in order to discharge the almost limited burden imposed by the word “possible”. “Possible” is of a similar kind to “foreseeable”, a word etched in the professional cause of common lawyers and capable of very extensive application indeed. Accordingly, in my view, some element of reasonableness must be introduced and may be achieved by reading the section as if the word “reasonably” was inserted before “possible”.

That approach was subsequently endorsed in Transport Action Group, where Mason P said, at [68], with respect to what was required by the (then) s 111 (now s 5.5) that:

This obligation is mandatory, but is to be applied reasonably and with practicality (Guthega).

More recently, in Oshlack, Gleason JA said [at 32]:

As noted by the primary judge, the duty imposed upon each respondent as the determining authority by s 111 of the EPA Actto "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity" in question including the specified matters, is properly construed as qualified by the word "reasonably". That is, the respondents' duty is to examine and take into account the matters referred to in that section to the fullest extent reasonably possible (citations omitted).

His Honour repeated his endorsement of this approach to the duty imposed by this provision at [173]. Emmett JA and Preston CJ of LEC each agreed with his Honour, but making additional remarks not related to this specific point.
This approach, expressly endorsed in each of these three decisions, is binding on me and is contrary to the more expansive approach that Mr Hemmings suggested I should adopt. Mr Hemmings’ position on this point is rejected for this reason.
As a consequence, it is necessary to turn and consider whether or not the decision-making process undertaken by the General Manager did take into account, to the fullest extent reasonably possible, all relevant matters.
I now turn to the complaints, limited although they are, that are made by the Company concerning the General Manager’s decision-making process in discharging this obligation.
In the General Manager’s Statement of Reasons, in Section 4, he sets out the materials upon which he had based his decision-making process. They were in the following terms:

4.   MATERIALS ON WHICH MY FINDINGS ARE BASED
4.1   In making my decision, I have taken into account, and made findings based on, materials including:
4.1.1   the relevant events described in section 3 of this statement;
4.1.2   the internal memorandum prepared by Sharon Cassidy, Executive Manager, Major Projects and Rodhan Haughton, Senior Project Manager, Major Projects, dated 17 May 2019 (Trim Reference: A14/0193) (Memorandum);
4.1.3   the final REF Report dated 8 May 2019;
4.1.4   the Peer Review Report;
4.1.5   public submissions submitted to Council during the draft REF Report public exhibition period (inclusive of the legal submission from Reid & Vesely and Ian Hemmings SC that was submitted after the advertised closing date for submissions);
4.1.6   the Public Consultation Report;
4.1.7   the Addendum Report; and
4.1.8   confidential legal advice.

4.2   In addition to the Memorandum and its attachments (which included the reports referred to above) I considered the following documents which are referred to in, but not attached to the Memorandum:
4.2.1   the Council report dated 16 December 2014;
4.2.2   the minutes of the Council meeting of 16 December 2014;
4.2.3   the petition received from Reid & Vesely dated 26 November 2014; and
4.2.4   the submissions made by the public during the public exhibition of the REF Report.

First, it is appropriate to note that the matters to which the General Manager adverts in 4.1.1 take the reader back to Section 3. This section sets out an overview of the project and then a detailed chronology (from 3.5 to 3.21) of Council’s consideration of the project and its effect on the environment. Although this sets out the corporate history of the Council’s examination of the project, as is noted in 4.1.1, the General Manager had regard to relevant events and material from within that chronology.
As the General Manager noted, he took into account, and made findings based on, all the materials listed between 4.1.2 and 4.1.8, as well as considering the documents referred to at 4.2.1 to 4.2.4.
In the reasons for decision in Section 6 of this document, the General Manager says, at 6.2:

In making my decision, I considered the material provided to me, and satisfied myself that:
All matters affecting or likely to affect the environment by reason of the project had been examined and taken into account to the fullest extent reasonably and practicably possible; …

I have set out above the list of the materials upon which the General Manager based his findings. For these purposes, I have closely read the Final REF Report dated 8 May 2019 (Exhibit E, Tab 36) and the Addendum Report to the Peer Review Report dated 13 May 2019 (Exhibit F, Tab 37) as part of my assessment of this ground and of Ground 2.
I also noted, earlier, that Ms Cassidy had sworn a second affidavit, one dated 17 October 2019. This affidavit dealt with swept path analyses undertaken for trucks and the use of the loading zones in Spring Street as part of the development of design process undertaken by the Waverly Traffic Committee. Swept path analysis documents for a medium-rigid vehicle and a heavy-rigid vehicle were annexed to her affidavit (noted at [6]). At [7] and [8], she dealt with the further use and dissemination of the swept path analysis in the following terms:

7. The swept paths referred to above at paragraph 6, were used to finalise the design which was ultimately presented to the Waverley Traffic Committee in April 2015.
8. In response to the swept path analysis the truck parking was moved to the front of the lengths of loading/truck zones to allow easier manoeuvring. To demonstrate this change, I attach as Annexure B a copy of an email I sent to the Applicant’s solicitor on 26 March 2015 which shows the proposed truck and loading zones which start after an 18m no stopping zone. The plans attached to Annexure B were also sent to property owners on 1 April 2015 (annexed to this affidavit as Annexure C).

I note this material, because of the specific complaint in Ground 1(f) of the Company's complaint concerning the Council’s process.
In addition, although in my assessment of lesser importance, I have also reviewed the original REF (Exhibits D and E commencing at Tab 33), the Public Consultation Report (Exhibit E, Tab 35) and the original Peer Review Report (Exhibit E, Tab 34) as part of my assessment of this ground and of Ground 2.
Of course, in considering these documents, I am not to be taken to be expressing any opinion as if I had reviewed the merits of the proposal.
All these are documents which, when taken together, provide a comprehensive and comprehensible basis upon which the General Manager could have based his decision.
Nothing advanced on behalf of the Company proposes that consideration of these materials, and all of the other documentary materials considered by the General Manager, were dealt with by him in a fashion which could have caused his decision-making process to have foundered because of its unreasonableness.
Similarly, despite the valiant attempts by Mr Hemmings when taking me through the portions of the documentary material in evidence to which he proposed that I have regard, nothing provides a basis for me to conclude that the General Manager had not discharged his obligation pursuant to s 5.5(1) to examine and take into account to the fullest extent reasonably possible all matters affecting or likely to affect the environment by reason of his approval of the cycleway.
Ground 1 is rejected.

Ground 2

Introduction

I have earlier set out, at [22], the matters that remain from the originally pleaded and particularised Ground 2 in these proceedings. For the present purposes, it is not necessary to reproduce them.

The position advanced by the Company

From the Company's written submissions, the following provides a short summary of the basis upon which it is put on behalf of the Company that s 5.7(1) of the EP&A Act is engaged and why I should conclude that, in the absence of an EIS in circumstances where the factual evidence must, in the Company's submission, lead to the conclusion that the proposal was an activity likely to significantly affect the environment, the absence of such an EIS gave rise to a jurisdictional fact as to whether or not such a document was required. This can be seen from [17] to [20] of the Company's written submissions. These are set out below:

17 Section 5.7(1)(a) of the EPA Act provides that "a determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is ... an activity that is likely to significantly affect the environment" unless it has "obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity" which has been prepared in the prescribed way. In this case it is common ground that no such EIS was obtained because the Council formed the view that the Project was not an activity that was "likely to significantly affect the environment".
18   "Likely" means a "real chance or possibility" rather than "more probable than not": Fullerton Cove at [227]-[228].
19   "Significantly" means "important", "notable", "weighty" or "more than ordinary": Fullerton Cove at [228].
20   In Fullerton Cove, Pepper J had occasion to consider whether the issue of whether an activity is likely to significantly affect the environment in s 112(1) (now s 5.7(1)) gave rise to an objective jurisdictional fact. Her Honour concluded at [300] that:
''[section] 112(1) of the EPAA gives rise to a jurisdictional fact that the court must determine for itself on all the available evidence, including the expert evidence tendered by the parties, whether or not the [activity] is likely to significantly affect the environment. "

Based on the Council's Response to Summons, that conclusion does not appear to be challenged in these proceedings. That is, the Court will need to determine for itself whether the Project, or any aspect of it, is likely to significantly affect the environment.

As set out at the conclusion of [20], it is the Company's position that I will need to determine whether the proposed cycleway or any aspect of it is something likely to significantly affect the environment.
In [21](b), the Company's written submissions summarised the second of the three grounds pleaded in the Summons, putting that:

21 …
(b) in breach of s 5.7(1) (formers 112(1)) of the EPA Act, the Council failed to obtain, be furnished with, examine or consider an environmental impact statement in respect of the activity, in circumstances where the Project is and was an activity that is likely to significantly affect the environment, in that the Project raises numerous traffic and traffic safety issues (Ground 2);

In support of this proposition, the Company relied on the decision of Pepper J in Fullerton Cove as demonstrating that the question of whether or not an EIS was required was a jurisdictional fact that I was mandated to address.

The Council's general response to the jurisdictional fact proposition

In the written submissions for the Council, this proposition advanced on behalf of the Company was dealt with, at a level of generality, at [34] to [39]. This element of the written submissions is set out below:

34 Section 5.7(1) of the EP&A Act (formerly s 112) relevantly provides that a determining authority shall not carry out an activity, or grant approval to an activity, being an activity “that is likely to significantly affect the environment”, unless the determining authority has obtained or been furnished with and has examined and considered an environmental impact assessment in respect of the activity (per s 5.7(1)(a)).
35 The applicant bears the onus of proving that the activity is one that is likely to significantly affect the environment: Fullerton Cove at [321]; SHCAG at [205]-[212].
36 The meaning of “likely” is “a real chance” or “possibility” and “significantly” as “important”, “notable”, “more than ordinary”: SHCAG at [204]; Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 at [134].
37 In determining whether an activity is one that is likely to significantly affect the environment, the Court can be taken into account any ameliorative measures to prevent, mitigate, remedy or offset impact of the development: SHCAG at [154]; Parks and Playgrounds Movement at [134].
38 In the present case, no environmental impact assessment was prepared for the Project.
39 The Revised REF concluded that the Project is not considered likely to significantly affect the environment, threatened species, populations of ecological communities, or their habitats, and therefore did not require further assessment under s 5.7 of the EP&A Act.

The first position advanced on behalf of the Council on the matter of jurisdictional fact - that I am obliged to undertake such an assessment - was that this determination by her Honour in Fullerton Cove was manifestly wrong and ought not be followed.
As a consequence, the Council submitted that, if I was to accept that proposition concerning her Honour's decision, I am not obliged to consider, as a question of jurisdictional fact, or at all, whether or not the Council was required to obtain an EIS as the General Manager had taken into account all of the relevant matters called up by cl 228 of the EP&A Regulation, being the matters brought into being by s 5.10 of the EP&A Act for the purposes of addressing matters required to be considered by the General Manager for the purposes of s 5.7 of the EP&A Act. The position, as I understood it, was that the General Manager had done so as disclosed by 6.2.2 and 6.3 of his Statement of Reasons.
Second, as a first fall-back position that would render it unnecessary for me to determine whether or not her Honour’s decision in Fullerton Cove remained a correct interpretation of the law, the Council pointed to the subsequent amendment of the EP&A Act as changing the legislative landscape in a relevant contextual fashion, rendering her Honour's conclusion in Fullerton Cove presently inapplicable (even if it had been correct on the basis of the law as it was in 2013).
Finally, as a second fall-back position, the Council, in its written submissions, said, at [45]:

45 Furthermore, any in any event, based on all the evidence before the Court, including the parties expert evidence, the Court would not find that the Project is likely to significantly affect the environment such that Council was required to comply with s 5.7(1) of the EP&A Act prior to approving the Project.

The competing decision-making matrices

As can be seen from what follows, there are distinctly contrasting decision‑making matrices advocated by the parties with respect to Ground 2. The position advanced for the Company is a simple one, namely, that the question of whether or not an EIS should have been obtained, that having been raised by the Company, I am obliged, consistent with the decision in Fullerton Cove, to undertake an investigation (based on the evidence put before me) as to whether this assertion was correct.
On the other hand, the position advanced for the Council proposes a more complex, cascading, decision-making matrix in three steps. These are:

I need to determine whether or not the decision in Fullerton Cove, on the jurisdictional fact proposition as said to arise from s 5.7(1) of the EP&A Act, is correct;

If it is correct, did the subsequent change to the EP&A Act mean that the applicable statutory framework addressed in Fullerton Cove no longer obtained and that, as a consequence, the conclusion about s 5.7 and jurisdictional facts was no longer relevantly applicable; and

Finally, if it was necessary for me to determine as a matter of jurisdictional fact whether or not the proposed cycleway significantly affected the environment, on the evidence available advanced as addressing that question, this resulted in a negative factual conclusion and that, thus, no EIS was required.

The preferable decision-making process

After careful consideration of all of the material advanced on behalf of the Council concerning the decision-making process, I have concluded that the appropriate approach to addressing the various matters raised in the proceedings is to address the necessary decision-making in the reverse order to that for which Mr Galasso contended. If the Company’s case fails on this factual analysis, it would become unnecessary to consider the complex legal arguments advanced for the Council. If, as a matter of fact, the evidence does not demonstrate that the proposed cycleway is “likely to significantly affect the environment”, the legal impediments advanced by the Council do not arise for determination.
As a consequence, I propose to turn, first, to the question of whether or not there is any factual basis upon which to conclude that the proposed cycleway is “likely to significantly affect the environment”.
In this context, the Company contends that the expert evidence demonstrates that this question should be answered in the affirmative, whilst the Council proposes the contrary conclusion is to be drawn.

Understanding the s 5.7(1) obligation

Introduction

It is to be repeated that the obligation in s 5.7(1) of the EP&A Act which I am now considering is whether or not the cycleway is “an activity that is likely to significantly affect the environment” so as to trigger the need for an EIS.
In this context, what is the approach to be taken to the words “likely” and “significantly”?
During the course of his oral submissions in reply, Mr Hemmings succinctly proposed how I should contextually consider both the words “likely” and “significantly”. He said (Transcript, 17 October 2019, page 48, line 48 to page 49, line 15):

HEMMINGS: … To the extent there is a very high statutory bar imposed upon the decision maker in 5.5 because of the language “to the fullest extent possible”, mollified by “fullest extent reasonably practicable”, the test in 5.7 upon the application of the - I was about to say “judicial gloss”, but the judicial consideration of the approach to the language, is one which, in fact, does not set the bar for the trigger of the obligation to obtain an environmental impact statement very high. As your Honour sees, and this language is uncontroversial and my friend’s submissions, for all intents and purposes say the same thing.
“Likely”, as in “likely to significantly affect”, means a real chance or possibility to be contrasted with it does not mean “more probable or not”. “Significantly” has also been considered to mean, for example, more than ordinary. You, being satisfied that 5.7 gives rise to a jurisdictional fact, therefore, taking the evidence that you have from the two traffic consultants in addition to the other materials that you have, consider whether the matters that we raise can meet a description that there is a real chance or possibility that there will be a more than ordinary effect on the environment.

The position advanced by Mr Galasso concerning “significantly” was equally concisely summarised in his oral submissions in the following terms (Transcript, 17 October 2019, page 30, lines 30 to 35):

GALASSO: … If, despite our submissions, you find that it is a jurisdictional fact, that doesn’t mean that you leap into the swimming pool of this material and form a view for yourself without recognising that the test is that this activity is likely, not to affect the environment, but to significantly affect the environment, “significantly”. That is a high threshold, a threshold that has not been passed on anything that’s been advanced in this case.

“Likely”

In this context, I did not discern any dispute with the proposition that I should understand the word “likely” as meaning no more than a real chance or possibility.

“Significantly”

As can be seen from the extracts set out above, however, there was a difference in emphasis as to how I should approach the requirement that I assess whether or not the project would “significantly affect the environment”. I therefore turn to explain my understanding of the word “significantly” in this context.
The Court of Appeal has made clear (see Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41, per Basten JA at [37]), the caution with which dictionary definitions are to be approached.
However there is merit in setting out, in the present context, elements from definitions of “significant”/”significantly” in both the Macquarie Dictionary (now the preferred source) and the Oxford English Dictionary as at least warranting some examination.
The relevant portion of the Macquarie Dictionary definition of “significant” (with the dictionary noting that there is an adjectival form) is in the following terms:

1. important; of consequence.

The relevant elements of the definition of “significantly” in the Oxford English Dictionary reads:

1. As a sentence adverb: importantly; notably.
2. To a significant degree or extent; so as to make a noticeable difference; substantially, considerably.

In whatever terms the concept of “significant”/”significantly” might be defined for present purposes, there is no doubt that what needs to be established for the purpose of the s 5.7(1) test is that the project would “likely” substantially or considerably impact the environment. I do not accept that being merely “more than ordinary” is an apt description as proposed by Mr Hemmings. However, this is to be considered as a matter of fact and degree in the circumstances of the present proposed development.

The alleged environmental effects of the cycleway

Introduction

There are two matters to be observed at the commencement of this consideration. The first is that the matters that are pressed on behalf of the Company are, through the matters which remain from the pleadings concerning Ground 2, matters said to be established by Mr McLaren's expert evidence and, at least as I understood the Company's submissions, without those concerns being able to be answered adequately on the basis of the evidence given by Mr Hollyoak. This approach and outcome, it was submitted by implication, would necessarily lead to the conclusion that the proposal would likely significantly affect the environment.
The second matter requiring to be considered is the approach that I should take to the evidence in light of the specific objections pressed to elements of Mr McLaren's evidence (the general objection to the evidence is to be set aside because the order in which I have concluded it is appropriate to address the issues pressed by the Company renders it relevant for this purpose).

The approach to be taken to the expert evidence

Introduction

I have concluded that the appropriate approach, for the purposes of this assessment, is to commence by taking the Company's case on the facts at its highest and, by doing so, consider whether any appropriate factual basis established to support the conclusion that an EIS is required because the proposed cycleway is likely to significantly likely to affect the environment.
If I am satisfied that, on this basis, the Company has not established, as a matter of fact, that such a conclusion is warranted (and I have so concluded for the reasons which are set out in the following sections of this decision), it is unnecessary to determine any of the individual objections to Mr McLaren's evidence.
As a consequence, I turn to consideration of the evidence of the two experts on the basis that I set aside the specific objections to the evidence of Mr McLaren in his individual expert report or in the Joint Expert Report.

The submissions concerning the approach to the conflicting expert positions

Competing positions were put as to how I should approach my consideration of the differences of opinion expressed by the expert witnesses.
The position put for the Council was summarised as follows (Transcript, 17 October 2019, page 31, lines 24 to 30):

GALASSO: … You are being asked, effectively, to arbitrate between two experts that are expressing alternative views. Mr Hollyoak’s position to the contrary of Mr McLaren’s evidence is entirely relevant to that question. If you’ve got one person saying X, saying white and the other one saying black, how sensibly can you ever conclude, either alone or in combination with other factors, that the activity is likely to significantly affect the environment? It’s entirely relevant to the exercise if this evidence is admissible in the first place.

However, a different approach was advocated for the Company (Transcript, 17 October 2019, page 49, lines 16 to 44):

HEMMINGS: … In our submission, on the materials you have before you, that is a conclusion that the Court can comfortably come to. You then asked my friend about how to treat the evidence. This isn’t a matter of simply saying there is an answer. I think this is the submission my friend made, or at least as I understood it. There is an answer by Mr Hollyoak to what Mr McLaren says, “Therefore, you can’t be satisfied that there’s likely to be a significant effect.” With the greatest of respect, that must just be plainly wrong for two reasons. One, because, as we said yesterday, the conclusion that it’s likely to significantly effect is not one which leads to approval or refusal. It’s merely a trigger for another part of the process, so the fact that there is a problem raised which is capable of addressing cannot be an answer to the inquiry.
Secondly, the way in which Mr Hollyoak has responded, as we commented yesterday, is often to say, “She’ll be right.” To the extent there are problems with intersections, for example, someone will fix it up at another time. Again, that may be acceptable and it may be that there is the possibility of a solution to the concerns that are raised, but that’s not an answer as to whether those concerns can meet the description of a real chance or possibility of a more than ordinary effect on the environment.
Then, thirdly, to the extent there is a competition in the evidence, it’s not a matter of merely accepting one witness over the other. In the ordinary course, that which the Court needs to do where there is conflicting expert evidence is the Court needs to resolve that evidence and form its own view as to whether or not there is a real chance or possibility that there will be a more than ordinary effect on the environment. For the reasons that we have already submitted, you would be satisfied that the cumulative impact of those intersection and driveways that we identified can clearly meet that description.

The general approach appropriate to be taken

The approach I have taken is not only to address the evidence in the two expert reports and in the Joint Expert Report but also to interrogate relevant elements of the extensive documentary material tendered (whether I was specifically taken to the appropriate passages or not).
It is unnecessary, in my view, for me to undertake a detailed analysis of each of the individual items set out in Annexure C extracted from the Joint Expert Report. It is sufficient, in my assessment, to undertake a detailed analysis of a representative one of those matters (indeed, being a matter which appeared to me to be, potentially, at the more serious end of the range of matters pressed by Mr McLaren) and to explain why I am satisfied that that matter could not be regarded as contributing to a conclusion that the proposed cycleway was likely to significantly affect the environment, let alone warranting such a conclusion in its own right.
I have also undertaken a shorter analysis of two other matters of complaint pressed by Mr McLaren to demonstrate their lacking of substance.
With respect to remaining matters, it will be sufficient to explain my consideration of them as set out by Mr Hollyoak and how I am satisfied that they could not, individually or collectively, lead to a conclusion that the proposed cycleway was likely to significantly affect the environment.

The expert evidence

Introduction

I have earlier noted, at [31], that expert reports by traffic engineers had been tendered, as had a Joint Expert Report prepared by Mr McLaren and Mr Hollyoak as a result of their joint expert conferencing.

The Council’s objections to the expert evidence

During the course of the second day of the hearing, Mr Galasso noted that, should I conclude that I needed to consider the expert evidence, the Company pressed a range of objections to it. A schedule of those objections was provided and inserted in the Court Book (Exhibit A) (Transcript, 17 October 2019, page 14, lines 31 to 44).
At a more general level, the Council's written submissions dealt with the basis upon which this evidence came into existence and the reasons why it was submitted by Mr Galasso that this evidence was not admissible. This can be seen from [46] to [52] of the written submissions on behalf of the Council. This material was in the following terms:

46   The applicant has served an expert report of Mr Craig McLaren, a traffic expert. In response, Council served an expert report of Mr Ken Hollyoak, a traffic expert.
47   This was done pursuant to directions made by Pain J in respect of the applicant’s application for leave to adduce expert traffic evidence: see Pittking Properties Pty Ltd v Waverley Council [2019] NSWLEC 122 at [11]-[14].
48   Council’s submits that the expert evidence is not admissible in respect of any of the grounds of the Summons.
49   In respect of ground 1 of the Summons, in Fullerton Cove at [143]-[145] Pepper J held that expert evidence may be admissible “to show what inquiries ought to have been made as a precursor to the examination exercise, and if they had been made, what those inquiries would have revealed” (at [144]); but that expert evidence is not admissible for determining whether the decision-maker had complied with the duty to take into account to the fullest extent reasonably possible the matters in s 5.5(1) and cl 228(2) (at [143]).
50   However, in the present case none of the expert evidence goes to the issue of what inquiries the Council ought to have made but did not make, and what those inquiries would have shown. Rather, the expert evidence is directed to the merits of Council’s decision to proceed with the chosen route for the cycleway via Spring Street rather than other alternative routes. For these reasons, it is submitted that none of the expert evidence is admissible in respect of ground 1.
51 As for ground 2 of the Summons, if the Court finds that s 5.7(1) of the EP&A Act gives rise to a jurisdictional fact (contrary to Council’s submissions above), Council accepts that expert evidence may be admissible on the issue of whether Project is an activity likely to significantly affect the environment: see Fullerton Cove at [300].
52   However, in the present case the experts’ evidence goes to the merits of Council’s decision to proceed with the chosen route for the cycleway via Spring Street, not to specific environmental effects of the activity.

The primary basis in the Company's list of objections was, unsurprisingly, that the expert evidence given by Mr McLaren, in his individual expert statement, was irrelevant and to be rejected, with a similar proposition advanced with respect to the Joint Expert Report. Under these circumstances, it was self‑evident that Mr Hollyoak's expert evidence had only been provided on a contingent basis, that basis being that I rejected the all-encompassing objection to any expert evidence being utilised.
However, against the possibility that I did not accept that submission, objections on specific bases were made to elements of Mr McLaren's evidence in his individual expert report and in the Joint Expert Report. Given my conclusion that the Company cannot succeed taking Mr McLaren's evidence at its highest and the weighing the Council’s responses to it, it is not necessary to rule on these objections.
It is to be observed that no objection was pressed on behalf of the Company to any of the evidence given by Mr Hollyoak.

Introduction to consideration of the expert evidence

I now turn to consider the expert evidence on the traffic matters that has been provided by Mr McLaren and Mr Hollyoak (in their separate expert reports) and the analysis contained in their joint expert traffic report. These three reports were in evidence at the locations earlier noted at [29]. As can be seen from the noted lengths of the documents, this expert material was voluminous.
At the commencement of the Joint Expert Report, the following appears (Exhibit G, Tab 5, folio 2362):

4.   To assist the court, the experts have conferred and produced this Joint Report to address the following matters with respect to the proposed “activity” to construct a cycleway along Spring Street, Bondi Junction:
a) Response to s5.5 and s5.7 of the Environmental Planning & Assessment Act (1979), with particular regard to whether or not the assessments provided by Council and its consultants adequately examined and took into account “to the fullest extent possible all matters affecting or likely to affect the environment”.
b)   Areas of Disagreement
c)   Areas of Agreement

5. Prior to detailing the expert’s position on the matters listed in paragraph 4 above, it is instructive to first define and present diagrams of the cycleway alternatives that have been addressed in the individual statements of evidence of both KH and CM, as follows:

The analysis, under the heading “Response to section 5.5 and 5.7 of the EP&A Act (1979)”, commences on page 3 with the setting out of a summary of the position advanced by Mr McLaren on behalf of the Company. This is in the following terms (folio 2364):

6.1   CM states that it has not been adequately justified with respect to s5.5 & s5.7 of the EP&A Act that the Council and it’s consultants have not given nor undertaken an environmental assessment that addresses “to the fullest extent possible” adequate and detailed consideration of impacts of the activity on the environment, not only in relation to safety of both the users of the proposed bike path and others along route but in relation to operational impacts on traffic flows, car parking (including high turnover parking spaces), loading zones, truck zones, driveway impacts, the movement of goods and persons to and from kerbside parking locations and pedestrian movements, particularly the movement and adverse safety exposure to vulnerable persons (the elderly and children).
6.2   CM further states that this necessitates assessment of alternatives, which in this case relates to the lack of adequate and detailed assessment of a bicycle path along both the “shortest path” option via the OSM and the Council’s preferred SSR.
6.3   CM states that the OSM route is discounted abruptly by the Council and it’s consultants without any detailed evaluation.
6.4   CM states, contrary to KH’s SOE, the assessment of the OSM option for a bike path is extremely lacking in detail. The OSM option was considered by LK Planning Report dated 25th March 2019 for council with the following relevant comments:
“The two standout options are Route 4 - ‘Oxford Street’ and Route 5 - ‘Spring Street” (page 3).
“Given Routes 4 and 5 are the standout options, Council will need to balance its land ownership issues through the Oxford Street Mall (particularly from a pedestrian safety perspective) with the weaknesses of the preferred route nothing:
-   it is 129m longer and is slower generally because of the number of turns and complexity of intersections;
-   includes an additional traffic light and additional driveways;
-   conflicts with additional truck and loading zones and additional bin collection points;
-   deviates from the desire line with the prospect that cyclists may continue to choose the most direct route through the mall, particularly if travelling to the public transport hub;
-   passes through a high pedestrian, vehicle and bus conflict area at the corner of Bronte Road and Spring Street, and
-   has reduced accessibility to the railway station and bus interchange.
The threshold issue is pedestrian safety along the Oxford Street Mall, however the report (and REF generally) does not provide an analysis of the potential opportunities and methods of providing separation between cyclist and pedestrian activity through the Oxford Street Mall.” (page 4).

6.5 CM states that the above LK Planning extracts clearly identify the need for a proper comparative analysis of the OSM route compared to the endorsed SSR. CM further states that the extract above includes the statement that the SSR “passes through a high pedestrian, vehicle and bus conflict area at the corner of Bronte Road and Spring Street” that has not been adequately assessed from both a traffic engineering and road safety perspective.

It can be seen from this material that Mr McLaren is seeking to pay particular attention to forcing a further reconsideration of the Oxford Street Mall option. For me to undertake such a comparative assessment would be, for the reasons I explained earlier, to embark on an entirely inappropriate merit analysis of the decision which has been taken by the General Manager and I decline to do so.
The following at least six pages of the Joint Expert Report continued to address a comparison between the route actually approved by the General Manager and an alternative route which would traverse the Oxford Street Mall rather than passing along Spring Street. I ignore that and any subsequent material based on such a comparative analysis as it is unrelated to the question of whether the project, as approved by the General Manager, is likely to significantly affect the environment.
At pages 23 to 27 of the report (folios 2384 to 2388), information is included under two headings. These are Summary of CM's identified issues, deficiencies and risks (page 23 to the first third of page 27) and Other matters related the late service of information by Council & KH (page 27).
Pages 23 to 27 are reproduced as Annexure C to this decision. A further 112 pages of material was appended to the Joint Expert Report - including the curriculum vitae of each of the experts. It is unnecessary to analyse this material in detail; it is sufficient to note that I have examined relevant portions of it for my consideration of the matters about which Mr McLaren makes complaint and whether or not I should conclude, as a matter of jurisdictional fact, that an EIS had been required for the to consider General Manager to permit him to have made a valid determination to approve the proposed cycleway.
For present purposes, it is appropriate to reproduce Figure 6: Proposed cycle path issue locations from page 22 of the joint expert traffic report (folio 2383). That diagram appears below:

The Joint Expert Report then sets out, in tabular form (as can be seen from Annexure C), a summary of the location of each of the nine locations identified on Figure 6, together with what Mr McLaren said were the deficiencies and risks at that location.

HIS HONOUR: I understand that, and I’m saying to: I do not find anything in figure 16 that explains to me what the extent of the change that would be required is. It tells me what the aggregate would be, but it doesn’t tell me the change.
HEMMINGS: Well, no, it tells you that, as he says in 4.10.1 in the last sentence, “The potential conflicts are depicted where each crossing of the cyclist path by a vehicle,” the orange line, “or a pedestrian,” the blue line, “is a potential conflict.”
HIS HONOUR: I understand that, but that’s--
HEMMINGS: So it’s showing one, two, three, four, five, six - about eight new conflicts.
HIS HONOUR: But if you take, in the middle of this intersection, what appears to be the marking of the centre line, a dashed, lighter dark line--
HEMMINGS: Yes. Yes, I don’t think that it is. I think that’s just some underlying data.
HIS HONOUR: No, but taking that as if it was the centre line for the purposes of this question.
HEMMINGS: Yes.
HIS HONOUR: If the present management of conflicts in that intersection says no vehicle turning north into Newland Street from Spring Street is permitted to pass that point until no pedestrians are on the pedestrian crossing where the blue arrow is marked, then there won’t be a conflict with cyclists going along the cycleway because cars will have had to stop before they get to the cycleway in any event. Absent that knowledge, that is, how present conflicts are managed, it would seem to me that this document is potentially of little to no use or relevance.
HEMMINGS: Thank you. If the only way--
HIS HONOUR: I’m telling you so that you can explain to me why I’m wrong--
HEMMINGS: Yes, and I’m about--
HIS HONOUR: --as undoubtedly you will in a very gentlemanly fashion explain to me why I am, yes.
HEMMINGS: --politely do that. To go back to your earlier example, an intersection that’s operating badly that’s made worse might be interesting,
and an intersection that’s operating perfectly well which is made worse, but
still one that doesn’t become bad, may be very interesting. The focus of the assessment is simply to determine what the project or the activity adds, not as a comparison to, “It was bad before but now it’s worse,” but simply, what new conflicts are introduced. The Court then turns its mind to those new conflicts, again, as we tressed when we started, not to determine whether those conflicts are capable or incapable of resolution, but to determine for the purposes of 5.7 and the preparation of EIS and the full involvement of the public participation process, et cetera, that that entails, to say, well, where I now have a movement where my right-turn move, my left-turn movement, and my north and south movements will now for the first time have to manage--
HIS HONOUR: That makes the assumption that the existing management process for those intersections are incapable of managing the new cycleway potential conflicts without change. I don’t have the information, do I?
HEMMINGS: No, you don’t, because you don’t have any detail which tells you how the lights should be phased in order to deal with--
HIS HONOUR: No, but I don't have any information that tells me that they will the phasing will need to be changed, starting point. Before I even get to how the phasing might need to be changed, I have no information that tells me categorically, do I, that it will require to be changed?
HEMMINGS: Yes, you are told that they anticipate it will be necessary to add a phase for the bicycles. You are told that, and there is somewhere - that's the 14 second. There is somewhere an identification that one of the phases for one of these intersections might be 14 seconds. But it’s part of the discussion we were having earlier, that it’s the, “Trust us, when we do the detailed design with the RMS, we’ll get it right.” It’s fine to allow that to a later detail because it’s probably the sort of matter that could be capable, if you were conditioning, for example, a normal development consent - it might be subject to consideration unless you were satisfied it couldn’t be done.
So there’s no suggestion it can’t be done. It’s just a matter of considering
each of those intersections. Is the Court otherwise going to be satisfied that the addition of the bicycle route can be described as something which is either individually or cumulatively likely to significantly affect the environment? I don’t think I can express it any other way. I note your concern, and I just see my junior pulling something up. You will see, for example, in your discussion with me, part of what Mr Hollyoak has done in relation to his response to Mr McLaren’s concern on this issue is to identify the various movements that are potentially affected so as to, in his view - sorry, his view is always coming to a conclusion that it’s capable of being managed.
I don’t want to sound like a broken record. We accept that it might be capable of being managed. That’s not the point for the 5.7 assessment.

Consideration of the position of the Spring and Newlands Streets intersection

What conclusion is to be drawn, therefore, from all of this material with respect to Mr McLaren's complaint about the impact of the proposed cycleway on this intersection?
That which is to be drawn from all the above material is that Mr McLaren has overstated, and significantly so, the potential for difficulties arising out of the construction of the cycleway at this location along its route. He has also declined to accept that the body (then known as the Roads and Maritime Services (RMS)) with the statutory responsibility for addressing such signal phasing would, to the extent necessary, address that issue. Quite to the contrary to the submission advanced by Mr Hemmings that that position would result in a delegation to another body in a context where there was potentially adverse affectation requiring resolution, I am unable to conclude that that would be the case.
To the extent that the proposed cycleway traversing this intersection poses a problem requiring resolution, that is, as a matter of fact, a minor and conventional (indeed humdrum) planning problem, in my assessment. It is addressed by measures adopted by the General Manager by his acceptance of the recommendations in Table 7.1 of the Final REF. As a matter of fact, matters concerning this intersection could not contribute to the conclusion that the cycleway is likely to significantly affect the environment and thus trigger the necessity for an EIS.

Other matters pressed by Mr McLaren

Introduction

I now turn to consideration of the deficiencies said by Mr McLaren to warrant the conclusion that the proposed cycleway is likely to significantly affect the environment. It is appropriate to commence this by some general comments concerning elements he raises before turning to the detail (in shorter form) concerning two matters where it is clear his specific criticisms are misplaced.

Mr McLaren’s costing criticism

In his individual report, at 3.2, Mr McLaren criticised the absence of a cost comparison between design options expressing the conclusion that:

On this basis, the cost comparison provided in the route analysis report is not fit for purpose. It is considered that a detailed costing of at least the two preferred route options and a preliminary costing of all route options considered would be necessary to satisfactorily consider the impacts of the proposal.

This is another example of Mr McLaren undertaking an excursion into the comparison between routes rather than, as is necessary for the limited purpose of the proceedings in which I am engaged, a consideration solely of the route that has been selected by the Council and is subject to the General Manager’s determination.

Mr McLaren's safety audit criticism

At 3.3 of his expert report, Mr McLaren expresses concern that there had not been a road safety audit of at least two of the most preferred design options prior to the selection of a final design.
On this topic, at 3.3.3, he said:

Without this additional level of scrutiny, it is impossible to provide for a sufficiently informed choice between the routes.

This is a further example of Mr McLaren's attempt to broaden, impermissibly, the scope of my examination to one involving the potentiality of alternative route choices.

Other matters concerning alternative routes

Mr McLaren, in his individual report also articulates other matters that are predicated on the assumption that I am undertaking some comparative analysis rather than merely undertaking an analysis of the adequacy or otherwise of the design, in the narrow context of the test in s 5.7(1) of the EP&A Act, that has, in fact, been selected by the Council and subject to the General Manager’s determination.
It is obvious, both explicitly and implicitly, from at least folios 58 to 71 of Mr McLaren's report, that his primary intention is to reinforce the view that, on a comparative basis, the Oxford Street Mall route favoured by the Company (who had, after all, commissioned him to undertake this analysis) was to be preferred over the route adopted by the Council and subject to the determination by the General Manager. This is an engagement with matters on an entirely impermissible basis.

Intersection of Oxford Street/Bronte Road/Grosvenor Street

This location is identified as “A” in the route plan earlier reproduced. Mr McLaren's identification of the deficiencies at this point are:

• No bicycle signal phasing assessed;
• Road safety audit by TTPP did not assess the proposed traffic signal phasing

Mr McLaren's identified risks were:

• Unmanaged conflicts between cyclists and vehicles and cyclists and pedestrians without bicycle only traffic signals;
• Potential increase in delays and reduced level of service.

Mr Hollyoak's response was that:

•   This intersection was modelled in the Bitzios Consulting Report 20/2/2018;
•   Provided as an addendum to the Traffic and Parking Report in the REF;
•   RMS would not approve signals where pedestrians and cyclists were not adequately protected.

The relevant portions of the Bitzios Consulting Report addressing this intersection are at folios 2004 and 2013/2014. The conclusion with respect to the revised layout for this intersection was set out at folio 215 in the following terms:

When compared to the existing intersection layout, the upgrades will not impact the subject intersection. The following conclusions were made:
•   the upgraded intersection will have a similar overall level of service (LOS) compared with the base model, with both operating at a LOS B;
•   the upgraded Oxford Street east approach will operate at a LOS B in the PM peak and have a degree of saturation of 0.202, compared with a LOS C and 0.458 in the base model;
•   the upgraded intersection will have a reduced overall degree of saturation compared with the base model; and
•   the upgraded intersection will have a slightly longer overall average delay compared with the base model.

The revised layout was adopted by the General Manager by his adoption of the recommendations in the Final REF.
In addition, the comment concerning the role of the RMS and signal phasing timing, as earlier noted in my discussion of the Spring and Newland Streets intersection, is here equally applicable.
I am satisfied that, on the basis of this material, Mr McLaren's criticisms of this aspect of the route approved by the General Manager are incapable of contributing to a conclusion that the project is likely to significantly affect the environment.

Waste collection operations

In addition to addressing the two intersection matters discussed above, I also turn to the issue of waste collection operations nominated by Mr McLaren as being a matter of concern at multiple locations along Spring Street. He identifies this at the second of the multiple location issues in the Joint Expert Report summary (Annexure C) at folio 2387. Mr McLaren identifies the deficiency in the following terms:

Waste collected kerbside and currently stored adjacent to the proposed cycleway.

The risk which he identifies is:

Potential for collision with bin storage and waste collection operations.

Mr Hollyoak's comment with respect to this was in the following terms:

This issue was raised in the Safety in Design Workshop (item 2.01). The suggested control was “Advise property owners and waste collection providers to keep bins clear of the 2.5m path travel zone. Advise property owners the placement of skip bins on the shared path is prohibited.

At 4.54 of his individual expert report, Mr Hollyoak expressed the opinion that:

The proposed measures to address the risk to cyclists is [sic] adequate.

The recommendation referenced by Mr Hollyoak is in the report of the Safety in Design Workshop forming Appendix K to the Final REF report (Exhibit F at folio 2247). The recommendation is an entirely conventional one, one addressing what would ordinarily be regarded as a minor planning issue.
The Final REF report is referenced in the General Manager’s Statement of Reasons at 4.13 as a document taken into account by him.
The General Manager’s Statement of Reasons, in its concluding paragraph, notes that he has adopted all the recommendations in the Final REF. These recommendations are set out in Table 7.1 of the Final REF. On folio 1683, the final recommendation appearing under the heading “Safety”, is:

Implement long-term upkeep and usability mitigation measures into the maintenance and operational programming for the cycleway.

This, by necessary implication, references and incorporates the cited recommendation from the Safety in Design Workshop.
This matter, raised by Mr McLaren, cannot contribute to a conclusion that the proposed cycleway is likely to significantly affect the environment.

Merit conclusion on Ground 2

With respect to the remaining matters that were pressed by Mr McLaren as ones when, taken together with the three the subject of my earlier discussion as warranting a conclusion that the proposed cycleway would be likely to significantly affect the environment, it is appropriate to deal with them at a collective level of generality.
A careful consideration of each of the relevant portions of the individual expert reports of Mr McLaren and Mr Hollyoak; the material in their Joint Expert Report; and relevant elements of the documents nominated in Section 4 of the General Manager’s Statement of Reasons (to the extent that those documents dealt with traffic and parking matters) leads me to the overall conclusion that such concerns as are pressed by Mr McLaren are:

either misplaced; or

intended to (impermissibly) press the case for the cycleway to traverse the Oxford Street Mall rather than run along Spring Street; or

minor and conventional planning ones easily able to be addressed and have been agreed to be addressed by the adoption by the General Manager of the recommendations in Table 7.1 of the Final REF (including, necessarily, matters to be addressed by the body then known as the RMS); or

to the extent that the proposed cycleway will change the operation of the streets traversed by its route, any problems there arising could not, taken cumulatively, be regarded as being likely to significantly affect the environment.

The overall factual position, therefore, with respect to Ground 2, is that no proper basis has been established requiring a conclusion that an EIS should have been prepared and considered as part of the process leading to the General Manager’s approval of the proposed cycleway.

The legal issues

It is not necessary, in light of my factual conclusion reached concerning Ground 2, to make any determination concerning Pepper J’s decision in Fullerton Cove or evaluating the effects of the post Fullerton Cove legislative change upon which Mr Galasso founded his subsidiary legal position.

Overall conclusion on Ground 2

Ground 2 is rejected.

Ground 3

Introduction

I now turn to Ground 3, being the ground proposing that the approval is defective as it leaves the issue of the westernmost extension of the proposed cycleway uncertain. The terms in which this ground was pleaded were earlier set out at [22].

The Company’s position

This ground was summarised in the written submissions on behalf of the Company in the following terms (at [21](c)), in the following terms:

The scope of the activity purported to have been approved by the decision is uncertain, in that it has been assumed the cycleway can extend along Oxford Street on the northern boundary of the Waverley Bus Depot, although the future development of that site (if any), has not yet been determined (Ground 3).

The Company's written submissions expanded on this in the following terms:

22 Each of the documents purporting to inform the delegate's review relied upon the activity continuing past the Waverley Bus Depot. The consequence of that reliance was that each of those documents expressly identified that if the activity did not extend past the Waverley Bus Depot, then the "REF should be revisited and updated based on new plans" (see for example SC-I Tab 33 page 3). The activity does not extend past the Waverley Bus Depot.
23 As a consequence, even if the activity is not uncertain, by their terms the materials informing the delegate's review are expressly not capable of satisfying the requirements of either s 5.5 or 5.7.

The Council’s response

In the Council’s written submissions, this ground was responded to, in [9] in the following terms:

9 Contrary to ASOA [22]-[23], the Project as approved does extend past the Waverley bus depot, along the southern side of Oxford Street between St James Road and York Road. As noted in the LK Planning Report dated 29 March 2019, presently there is a 3.0m wide portion of land adjacent to the Waverley bus depot fronting Oxford Street that Council is entitled to acquire under the Waverley LEP. As approved, the part of the cycleway adjacent to the Waverley bus depot is to be constructed on this land. The applicant’s submissions in ASOA [22]-[23] are based on a misunderstanding of the Project as approved.

Resolution of Ground 3

There was no significant argument concerning this ground during the hearing and the matter can be addressed entirely on the basis of the written material reproduced above.
The LK Planning report dated 29 March 2019 (cited in the Council’s submissions extracted above) was contained in the documents exhibited to the affidavit of Ms Cassidy. The report appears in Exhibit E, Tab 35, commencing at folio 1610. On folio 1616, an examination of the LK Planning report discloses that it addresses the proposition that:

The route is uncertain as it relies on assumptions about the bus depot site.

The comment provided in response to this by the author of the report is in the following terms:

Under the Waverley LEP, Council has a 3.0m wide portion of land that is subject to land acquisition immediately fronting Oxford Street at the Waverley Bus Depot. As such, Council could proceed with the cycleway as designed, by exercising its right on this land acquisition.
Notwithstanding this is understood that agreement was reached between Waverley Council, TfNSW, STA, and RMS that an extension to the Waverley Bus Depot will be designed by Council and funded by TfNSW in order to compensate for this loss of land required to facilitate the cycleway.
The route is therefore certain and is subject to one of two options for the transfer of land ownership.

During the course of the hearing, the position set out in the LK Planning report quoted above was not challenged. The consequence is that, whatever mechanism is to be used to establish the extension of the cycleway past the Waverley Bus Depot, there is no uncertainty that it will occur.
Although the mechanism might, at the time of the LK Panning report, have remained to be finalised, the ability to extend the cycleway and the route of that extension was not in question - merely which of the two methods on implementation along the adopted route would be utilised to achieve the outcome.

There is no basis for this complaint made by the Company.
Ground 3 is rejected.

Conclusion

As the Company has failed on all three bases of challenge to the General Manager’s approval of the cycleway, the Summons must be dismissed.

Costs

In Class 4 proceedings such as these, costs ordinarily follow the event (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 and Pt 42, r 1 of the Uniform Civil Procedure Rules 2005). There is nothing in these proceedings that would appear to warrant departure from that position.

Orders

The orders of the Court are:

The Summons is dismissed;

The Applicant is to pay the Respondent’s costs as agreed or assessed; and

The exhibits are returned.

**********

Annexure A - route of cycleway (155 KB, pdf)

Annexure B - Statement of Reasons (2.40 MB, pdf)

Annexure C - extract from JER pp 23-27 (1.69 MB, pdf)

Annexure D - folio 1700 (510 KB, pdf)

Decision last updated: 20 March 2020

Medium Neutral Citation:	Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21
Hearing dates:	16 and 17 October 2019
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Class 4
Before:	Moore J
Decision:	(1) The summons is dismissed; (2) The Applicant is to pay the Respondent’s costs as agreed or assessed; and (3) The exhibits are returned.
Catchwords:	JUDICIAL REVIEW - Council development project -assessment pursuant to Part 5 of the Environmental Planning And Assessment Act 1979 - meaning of requirement that potential environmental impact be assessed “to the fullest extent possible” - phrase means “to the fullest extent reasonably possible” - was the test satisfied by the Council's General Manager’s assessment before determining to approve the proposal - merits of General Manager’s assessment not to be reviewed - General Manager’s assessment satisfied the test - Ground 1 rejected JUDICIAL REVIEW - no environmental impact statement prepared - was environmental impact statement required - was requirement for an environmental impact statement a jurisdictional fact - effect of 2015 legislative changes - if jurisdictional fact, was the Council project “likely to significantly affect the environment” - appropriate to commenced by factual examination - consideration of expert traffic evidence - conclusion that project was not likely to significantly affect the environment - unnecessary to consider legal issues as evidentiary basis for challenge not made out - Ground 2 rejected JUDICIAL REVIEW - Council project for a cycleway - was the route of the proposed cycleway uncertain so as to affect the validity of the General Manager’s approval - no uncertainty as to route of cycleway - Ground 3 rejected COSTS - costs ordinarily follow the event in judicial review proceedings - no reason to depart from usual position - Applicant to pay the Respondent’s costs as agreed or assessed.
Legislation Cited:	Electricity Network Assets (Authorised Transactions) Act 2015, Sch 8.12 Environmental Planning and Assessment Act 1979, ss 5.5 – 5.7 and 5.10 Environmental Planning and Assessment Regulation 2000, cl 228 Interpretation Act 1987, s 34(2)(e) and (f) Uniform Civil Procedure Rules 2005, Pt 42 r 1
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 Goldberg v Waverley Council [2008] NSWLEC 49 Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Oshlack v Rous Water [2013] NSWCA 169; (2013) 194 LGERA 39 Pittking Properties Pty Ltd v Waverley Council [2019] NSWLEC 122 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598
Texts Cited:	Macquarie Dictionary Oxford English Dictionary
Category:	Principal judgment
Parties:	Pittking Properties Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: Mr I Hemmings SC/Ms R McEwen, barrister (Applicant) Mr A Galasso SC/Mr D Robertson, barrister (Respondent) Solicitors: Reid & Vesely (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	255402 of 2019
Publication restriction:	No