Pyramid Pacific Pty Limited v Ku-ring-gai Council

[2006] NSWLEC 522

Land and Environment Court

of New South Wales

CITATION:	Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 522
PARTIES:	APPLICANT Pyramid Pacific Pty Limited RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	11068 of 2005
CORAM:	Preston CJ
KEY ISSUES:	Costs :- planning appeal - whether fair and reasonable to order costs against unsuccessful council - conduct of council - court appointed expert (CAE) on planning - CAE raised concerns consistent with Council's issues - applicant amended development in response - CAE's concerns and amendment of development validated Council's issues - CAE ultimately concluded consent should be granted - Council submitted Court should draw different conclusions to CAE - no necessity for Council to call own expert to give evidence contradicting CAE and to mirror Council's submissions - Lay evidence of residents - relevant to Council's issues of character of area and impact of development on character and neighbouring development - residents entitled to give evidence on these issues - Council entitled to rely on residents' evidence in submissions - no order for costs made Evidence :- expert evidence - planning appeal - use of expert evidence - expert evidence does not preclude or render meaningless lay evidence on appropriate issues - Court's duty is to consider all evidence, expert and lay, on relevant issues - expert opinion on ultimate issue of whether consent should be granted of no assistance to Court - Court's duty is to consider and weigh all relevant matters - one expert's opinion relates to only one or some of the matters - of more assistance are expert's intermediate opinions on each matter within expertise together with the factual foundation and reasoning process for those opinions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97 Land and Environment Court Act 1979, s 69(2) Land and Environment Court Rules, Pt 16 r 4
CASES CITED:	ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 (26 April 2006); Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006); New Century Developments v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003); Port Securities Pty Ltd v Wollongong City Council (2006) 145 LGERA 285; Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 220 (3 May 2006); Raiti v Leichhardt Municipal Council (1990) 72 LGRA 333; Vigor Master Pty Ltd v Warringah Council [2006] NSWLEC 140 (29 March 2006)
DATES OF HEARING:	17/08/2006
EX TEMPORE JUDGMENT DATE:	08/17/2006
LEGAL REPRESENTATIVES:	APPLICANT David Baird (solicitor) SOLICITORS Maddocks Lawyers RESPONDENT Peter Rigg (solicitor) SOLICITORS Deacons Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

17 AUGUST 2006

11068 OF 2005

PYRAMID PACIFIC PTY LIMITED V KU-RING-GAI COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant, Pyramid Pacific Pty Limited, has been successful in concluded Class 1 proceedings being an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) against the refusal by the respondent, Ku-ring-gai Council (“the Council”), of the applicant’s development application for the demolition of all improvements and the construction of a residential flat building at 8-12 Nola Road, Roseville.

2 Commissioner Tuor determined to uphold the appeal and grant development consent for the development: Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 220 (3 May 2006).

3 The applicant, by notice of motion filed 24 May 2006, sought an order that the Council pay the applicant’s costs of the proceedings.

4 Section 69(2) of the Land and Environment Court Act 1979 provides that, subject to the Rules, costs are in the discretion of the Court and the Court may determine by whom and to what extent costs are to be paid.

5 Part 16 Rule 4 of the Land and Environment Court Rules 1996 provides that in certain proceedings in Class 1, including an appeal under s 97 of the EPA Act, no order for the payment of costs will be made unless the Court considers that the making of a costs order is, in the circumstances of a particular case, fair and reasonable.

6 Many of the circumstances where courts have considered that it would be fair and reasonable to make an order for costs in Class 1 proceedings were summarised in Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [15].

The proposed development

7 The development was proposed to be carried out on three residential allotments, 8, 10 and 12 Nola Road. Each lot was currently developed with a detached dwelling and associated structures in an established landscape setting with mature trees and shrubs.

8 The surrounding area contained a number of blue gums and was characterised by buildings in landscaped settings with an upper storey of large canopy trees.

9 The development proposed the demolition of each of the improvements on each of the lots and the construction of a five storey residential flat building of 32 units, configured in three staggered and connected pavilions.

Consideration by the Council

10 The development application was lodged on 14 December 2005. The Council notified the application to adjoining residents and received 58 submissions. It was referred to the Council’s consultant urban designer, Mr Russell Olssen, to consider the development’s compliance with State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (“SEPP 65”). Mr Olssen supported the proposal. The Council considered reports of its officers on 28 June 2005 and 2 August 2005, which reports recommended the grant of approval to the application. Initially, the Council approved the application but that resolution was subsequently the subject of a rescission motion. Ultimately, the Council refused the development application on 23 August 2005.

Appeal to the Court

11 The applicant lodged a Class 1 appeal on 19 September 2005 against the Council’s refusal of the application. On 14 October 2005, the Council filed a statement of issues. That statement raised the following issues:

(a) the inconsistency of the development with the desired future character of the Nola Road precinct and with a recently adopted development control plan, Development Control Plan 55 (“DCP 55”);

(b) the bulk and scale of the development, in association with the reduced front set backs and restricted street width, result in a development that dominates the street context and is out of character with the Nola Road precinct;

(c) the development will have an adverse impact on the proposed rehabilitation of Blue Gum Creek and its tributary;

(d) the development will have an unsatisfactory privacy impact on the neighbouring dwellings;

(e) the development will fail to provide adequate energy efficiency levels;

(f) the development results in unsatisfactory overshadowing particularly to the existing townhouses to the south;

(g) the development is unsatisfactory with regard to SEPP 65; and

(h) various issues raised by resident objectors, including the cumulative impact the proposed development might have on traffic.

12 On 10 November 2005, the Council filed an amended statement of issues. The amendments provided particulars to the issue concerning the adverse impact on Blue Gum Creek and to the issue concerning SEPP 65.

13 On 11 November 2005, a case management conference was held before the Senior Commissioner of this Court. One of the issues that was addressed by the Senior Commissioner was the applicability of DCP 55. The applicant had argued that DCP 55 was irrelevant and no regard could be had to it as it did not apply to the subject land. The applicant had sought that the Senior Commissioner direct that the Council remove any reference to DCP 55 from its statement of issues.

14 The Senior Commissioner did not uphold this submission of the applicant. DCP 55 was still relevant to future development on neighbouring land. The Senior Commissioner directed the Council to revise the statement of issues in respect of DCP 55. In particular, the Council was directed to specify what aspects of the proposed development will be out of harmony with nearby development such as the amount of landscaped area, the length of the building, the set backs etc. The Senior Commissioner also directed the Council to check the SEPP 65 assessment of the applicant in respect of the aspects with which it did not agree. The Council was also directed to check whether the impact on Blue Gum Creek remained an issue. If it did, the Council was directed to provide the applicant with the basis for the issue.

15 On 21 November 2005, the Council filed a further amended statement of issues. The amendments refined the issues which referred to DCP 55 and specified the aspects of the proposal which the Council contended would not be in harmony with the future development and the desired future character of the Nola Road precinct, added particulars to the streetscape issue, amended the particulars to the issue concerning the adverse impact of the development on Blue Gum Creek, and amended the particulars to the issue concerning SEPP 65 by specifying the respects in which the Council contended that the development was incompatible with the principles of SEPP 65.

16 On 9 December 2005, the court appointed expert on architecture, design and planning, Mr N Dickson, gave a preliminary report. In that report, Mr Dickson raised concerns in relation to the issues of streetscape, bulk and scale, and the need for further details on the plans.

17 In relation to streetscape, Mr Dickson had a concern about the relationship of the proposed development with the street frontage. Mr Dickson encouraged the applicant to add an additional pedestrian access point to provide greater activation to Nola Lane, thereby improving the streetscape. Mr Dickson stated his preference to see an amendment to the treatment of the front landscaping zone whereby more appropriate transition between the unstructured, semi-natural state of Nola Road and the formal elements to the proposed building would be provided.

18 In relation to the bulk and scale, Mr Dickson recommended that more be done to break up the perceived scale of the proposal. In particular, Mr Dickson encouraged a reduction of the repetitive nature of the three principal façade modules to the south-west elevation. Mr Dickson believed that such amendments would address Council’s concerns concerning building length.

19 In terms of building height, Mr Dickson requested additional information to demonstrate a satisfactory relationship with the adjacent four storey residential flat buildings to the east. Mr Dickson requested details to help in determining the impact of the height of the proposal as well the overlooking potential from adjoining sites. Mr Dickson also requested details of the buildings set back dimensions, and RLs per floor and adequacy of disabled access from street level.

20 On 13 January 2006, the applicant filed amended plans addressing the concerns raised by the court appointed expert, Mr Dickson. The amended plans addressed the following issues:

(a) Streetscape: An additional pedestrian access point was introduced midway between the two existing pedestrian pathways in order to provide greater activation to Nola Road. The location of the two sandstone walls was modified to reinforce the articulation of three separate elements. The treatment to the front landscaping was changed to make it more informal. Further information was provided in relation to retention of significant trees.

(b) Bulk and Scale: Amendments were made to break up the perceived bulk of the proposal. The design of the central building element was amended to obtain a greater level of articulation between the three building elements. Additional information was provided demonstrating the relationship with the adjacent four storey residential flat buildings.

(c) Additional information: Additional information was provided on the building set back dimensions, RLs per floor and the adequacy of disabled access from street level.

21 On 20 January 2006, the court appointed expert, Mr Dickson, provided his final report. In that report Mr Dickson expressed his opinion that the amendments had addressed the concerns that he had raised in his preliminary report. However, Mr Dickson raised an additional concern relating to the potential extent of overshadowing of the proposed building of the townhouse development immediately to the south of the site. This was an issue that had been raised by the Council from the outset. Mr Dickson expressed the view that this was the key planning issue remaining before the Court. Mr Dickson stated that in order to address this issue further information detailing the full extent of the impact of overshadowing needed to be submitted by the applicant.

22 On or about 3 February 2006, the applicant provided a solar drawing to the court appointed expert.

23 On 7 February 2006, the court appointed expert, Mr Dickson, provided a further explanatory memorandum in response to the additional information provided by the applicant. In that memorandum, Mr Dickson stated that the solar drawing that had been provided on 3 February 2006 still did not provide sufficient detail for an effective assessment of the overshadowing of the proposed development on the town houses to the south. Further detail was still required.

24 The hearing commenced on 16 February 2006. On the same day, there was a joint conference between the court appointed expert, Mr Dickson, and Messrs Hunt and Lake, experts called on behalf of the applicant. A joint expert report was produced.

25 In that joint expert report, Mr Dickson noted that he had received from the applicant, only on that day, further daylight information designed to show the solar access to the adjoining town houses to the south and an elevation shadow analysis. Mr Dickson considered the solar access and overshadowing shown to be satisfactory although still he suggested some modifications to the development.

26 The hearing continued until 17 February 2006. The evidence at the hearing included that of the experts as well as residents who objected to the development. The residents addressed issues concerning the character of the area, streetscape, effects on Blue Gum Creek, impacts on residential amenity, solar access to the town houses to the south and the design of the development as well as traffic issues.

27 Commissioner Tuor reserved her decision.

Judgment of the Court

28 On 3 May 2006, Commissioner Tuor delivered judgment, upholding the appeal.

29 Commissioner Tuor dealt with the issues raised by the parties under six headings: future character of the area, impact on adjoining properties, traffic, Nola Road, impact on Blue Gum High Forest and Blue Gum Creek, and conditions.

30 In relation to the future character of the area, Commissioner Tuor noted that the experts agreed that the area was in a state of transition and that the desired future character was that envisaged by the planning controls in Local Environmental Plan 194 and DCP 55. This future character was at variance with the existing character of Nola Road of predominately detached dwellings. The experts agreed that the proposal was of a height, bulk and form that was consistent with the desired future character.

31 Commissioner Tuor dealt with a recommendation of the court appointed expert, Mr Dickson, concerning the removal of a planter and an associated parapet to reduce the bulk of the building. That was not supported by Mr Lake, an expert called by the applicant. Commissioner Tuor accepted Mr Lake’s evidence and declined to make Mr Dickson’s suggested amendments.

32 Commissioner Tuor noted that the residents were concerned that the height of the building would be above the tree canopy and result in the built form dominating over the landscape. Commissioner Tuor noted that the proposal would be of a height, bulk and scale that is different to the height, bulk and scale of the existing dwellings in Nola Road. However, Commissioner Tuor considered that this change in character was one anticipated by the new planning controls and therefore was not a basis to refuse the application.

33 Commissioner Tuor also considered the proposed landscaping. Commissioner Tuor noted that in response to the residents concern, additional trees were proposed by the applicant to be retained along the eastern boundary to screen the development while the additional landscaping is established. Commissioner Tuor was satisfied that implementation of this amended landscaping plan would ensure the proposal did not dominate the landscape.

34 In relation to impact on adjoining properties, the main concern was the likely impact of the proposal on the solar access to the adjoining townhouse development to the south. Commissioner Tuor dealt with the experts’ evidence in this regard. Commissioner Tuor found that the overshadowing impacts of the proposal would be acceptable.

35 In relation to the residents’ concern to screen the development, Commissioner Tuor considered these concerns were addressed by amendments to the landscape plan to retain more trees along the common boundary.

36 Commissioner Tuor accepted the evidence of Mr Dickson that the proposed set backs, staggering the building and the architectural treatment would break down the building mass.

37 In relation to traffic, Commission Tuor noted that there was a traffic report by the applicant’s traffic consultant. Commissioner Tuor also noted that the residents raised concerns about the cumulative impacts on traffic in the area. Commissioner Tuor concluded that the proposal would create a low level of additional traffic movement and would therefore not exacerbate the existing road conditions to Nola Road. Commissioner Tuor held that although the development site of itself does not generate the need for works to upgrade the whole of Nola Road, it does generate some demand and that an appropriate condition should be adopted that the applicant make a contribution towards a study for the upgrade of the road.

38 In relation to the impact on Blue Gum Creek, Commissioner Tuor noted that the water course vegetation assessment undertaken by the Council showed the proposal would have a negligible impact on the habitat values within Nola Road.

39 Finally, Commissioner Tuor dealt with contested conditions.

Applicant’s submissions on costs application

40 The applicant submitted that it was forced to bring the appeal to the Court in circumstances where it should not have had to do so. The applicant relied on the decision in Raiti v Leichhardt Municipal Council (1990) 72 LGRA 333. The applicant submitted that, as in Raiti’s case, the Council here had offered token resistance only to the appeal and gave no real assistance to the court in discharge of its duty to rehear the application. In particular, the applicant submitted that the Council offered token evidence in the form of evidence from objectors and no expert evidence was adduced contrary to the opinions of the court appointed expert, Mr Dickson.

41 The applicant submitted that it was fair and reasonable to order costs for the reasons stated in ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 (26 April 2006). The applicant submitted that the evidence was all one way, in support of the applicant. The Council was forced to rely solely on the evidence on non-expert residents. Every issue raised was ultimately determined in favour of the applicant.

42 The applicant referred to the circumstances set out in Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) in sub-paragraph 15(d), (f) and (g).

43 As to the sub-paragraph 15(d), the applicant submitted that the Council acted unreasonably in failing to amend the statement of issues in accordance with the directions of the Senior Commissioner and by the continuation of issues up until the day of the hearing at which time the applicant informed the Court that issues 5, 7 and 9 were no longer pressed.

44 The application also submitted that the Council had adopted a scatter gun approach by raising every conceivable objection to the proposed development.

45 In relation to sub-paragraph 15(f), the applicant submitted that Council had the benefit of two reports of a Council officer recommending approval and the comments of a SEPP 65 design specialist noting that the development was “an exemplary design”. Yet, the Council proceeded to a fully defended appeal. In these circumstances, the applicant submitted that the Council should have known that it had no chance or very poor prospects of success.

46 In relation to sub-paragraph 15(g), the applicant submitted that, having regard to the two reports of the Council officer and the comments of the SEPP 65 design specialist, the Council’s decision to defend the appeal was in dereliction of its duty and that the Council made its decision not on a rational basis.

47 The applicant further submitted that the Council, in relying on the resident’s evidence, had blindly accepted the subjective fears and concerns of the residents. The objectors’ evidence should not have been given much weight. The applicant relied on New Century Developments v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003) at [61].

48 Accordingly, the applicant submitted that an order for costs should be made in favour of the applicant.

Council’s submissions

49 The Council opposed the applicant’s application for costs and submitted that no order for costs should be made.

50 The Council distinguished the decision of Raiti v Leichhardt Municipal Council (1990) 72 LGRA 333 as being a case decided when the test for making an order for costs was whether there were exceptional circumstances, rather than the fair and reasonable test that now applies under Part 16 Rule 4 of the Rules.

51 The Council further distinguished the circumstances of this case from those that existed in Raiti’s case. The Council submitted it did not act unreasonably in refusing consent to the development application. The Council’s collegiate body was entitled to take a different view to that recommended by its officers.

52 The fact that no expert evidence was called by the Council in addition to, or contrary to, the opinion of the court appointed expert, Mr Dickson is not determinative. The Court’s practice direction, Practice Direction No 1 of 2005 - Court Appointed Experts, anticipates that where a court appointed expert has been appointed, the parties will not require evidence from further experts. Leave is required to do so. Amongst the matters that would need to be shown is why it was necessary to call an additional expert to give evidence, rather than having the court appointed expert address the matters further or in cross-examination: see [14] of the practice direction.

53 The Council submitted that the evidence of the residents was not “token evidence”. Rather, the evidence reflected relevant and substantiated concerns relating to the development including the character of the area, the streetscape, the effects on Blue Gum Creek, the residential amenity, solar access to the townhouses to the south and the design of the proposed development. These were also issues that were raised by the Council.

54 The Council submitted that the case of ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 (26 April 2006) was distinguishable. First, in that case, court appointed experts were not appointed in relation to the key issues in the case, namely air pollution and noise in relation to a crematorium. The parties relied upon their own experts in relation to these issues. In the present case, however, there was a court appointed expert in relation to the key issues of town planning.

55 Secondly, the Council submitted the case of ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 (26 April 2006) was distinguishable because in that case the application was not modified by way of amended plans as a result of the court process as it was in this case. The Council referred to the fact that the applicant amended its plans to address the concerns raised by the court appointed expert, Mr Dickson. These amendments addressed the issues raised in the Council’s statement of issues.

56 The Council rejected the applicant’s submission that the evidence was all one way. The court appointed expert was not able to support the development application in its original form before the amendments were made. The application referred to the concerns of a court appointed expert that I have set out earlier in these reasons. Furthermore, even after the amendments were made, the court appointed expert still continued to raise concerns about the proposed development, in particular in relation to overshadowing.

57 The Council also referred to the fact that application was amended and conditions were imposed in response to certain residents’ evidence.

58 The Council disputed the applicability in this case of the categories in paragraph 15(d), (f) and (g) in Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006). The Council submitted that there was no unreasonable action by the Council. The Council amended the statement of issues in response to the directions of the Senior Commissioner at the case management conference. The Council did not withdraw issues from the statement of issues before it was satisfied that these issues had been satisfactorily addressed by the amended plans. Such action was reasonable.

Order for costs should not be made

59 I do not consider in the circumstances of this case it is fair and reasonable to order the Council to pay the applicant’s costs of the proceedings. My reasons include those advanced by the Council and set out above.

60 The Council did not act unreasonably in making its original determination to refuse development consent that lead to the appeal or in defending the appeal. Central to the Council’s concerns were the bulk and scale of the development, its impact on the desired future character of the area and its impact of the streetscape. The Council as a collegiate body had a different view on these matters to those expressed by the Council officers or its consultant on SEPP 65.

61 The issues raised by the Council in relation to these matters were real and relevant.

62 The Council’s conduct in defending the appeal cannot be characterised as offering “token” resistance or as giving no real assistance to the Court. That is to say, the Council did not engage in the type of conduct that founded an order for costs is Raiti’s case.

63 The Council did not press three of the issues at the hearing (Issue 3 concerning the impact on Blue Gum Creek, issue 7 dealing with energy efficiency, and issue 9 dealing with SEPP 65 as a separate issue, although the matters the subject of particulars to issue 9 concerning context, streetscape, bulk and scale were maintained under other issues including issues 3 and 4). The deletion of these three issues did not affect the conduct of the hearing. The central issues remained.

64 The Council called residents to give evidence in relation to the central issues. The Council actively participated in the hearing. It gave real assistance to the Court.

65 The evidence in the proceedings relating to these matters could not be characterised as being all one way in favour of the applicant, either at the stages of the court appointed expert’s preliminary or final reports or even at the hearing.

66 The court appointed expert in his preliminary report raised concerns, consistent with a number of the Council’s issues, in relation to streetscape, bulk and scale and the need for additional information to address the issues. The applicant amended its development application in response to these concerns and provided further information.

67 The court appointed expert in his final report raised an additional concern in relation to the overshadowing by the proposed development of the townhouses to the south. The applicant sought to address this additional issue, initially by a solar drawing, but later, on the first day of the hearing when the experts jointly conferred, by more detailed information. Even then, there were still some residual concerns of the court appointed expert, involving some suggested modifications, which needed to be adjudicated upon by the Court.

68 The raising of concerns by the court appointed expert and the response of the applicant to address those concerns validated the reality and relevance of the issues raised by the Council.

69 The applicant’s reliance in its costs submissions on only the expert evidence and its dismissal of the lay evidence of the objectors is misplaced.

70 Many of the central issues involved value judgments upon which minds may reasonably differ. In particular, the compatibility of a proposed development with the character, let alone the future character, of the area is a matter where value judgments need to be made. Similarly, assessing the degree of impact and the acceptability of impact on adjoining properties are matters where minds may differ.

71 The Council and the residents were of different opinions on these matters to those of the court appointed expert and the applicant’s experts.

72 The residents gave evidence in relation to these matters. Their evidence was legitimate. It is not solely within the province of experts to express opinions about the character of the area in which development is proposed or the perceived impact that a proposed development would have on that character or whether that impact is acceptable. Similarly, the impacts that a proposed development may have on adjoining developments and the acceptability of those impacts are not solely within the province of expert evidence. The residents are entitled to and can give meaningful evidence in relation to these matters.

73 The applicant’s reliance in its costs submissions on the court appointed expert’s evidence is also misplaced. The expert evidence of a court appointed expert does not have, by reason only of the expert’s status of being appointed by the court, any paramountcy over other evidence. The court can and should consider all of the evidence on the relevant issues before the court.

74 As I said in Vigor Master Pty Ltd v Warringah Council [2006] NSWLEC 140 (29 March 2006) at [48]-[49] the appointment of a court appointed expert, in appropriate cases, does have advantages. It may reduce costs and ensure the Court had the benefit of evidence from a person who is not engaged by only one party. The elimination of possible adversarial bias and the consequent neutrality, as between the parties, of the expert evidence of a court appointed expert may give greater confidence to the Court in relying on the assistance of court appointed experts: see also Port Securities Pty Ltd v Wollongong City Council (2006) 145 LGERA 285 at 289 [11] and G L Davies, “Civil justice reform: Why we need to question some basic assumptions” CJQ 2006 25 (JAN) 32 at 44 and G L Davies “Current Issues – Expert Evidence: Court Appointed Experts” CJQ 2004 43 (OCT) 367 at 378.

75 But this does not mean that the Court should receive and consider only the evidence of a court appointed expert. There are occasions where the court may be assisted by receiving and considering the evidence of another expert called by a party. This was done in this case. The applicant called its own expert evidence. It was also done in Vigor Master Pty Ltd v Warringah Council [2006] NSWLEC 140 (29 March 2006) and Port Securities Pty Ltd v Wollongong City Council (2006) 145 LGERA 285.

76 Where the nature of the issue is such that lay evidence (such as from residents) can also be relevant and assist the Court, that evidence should be received and considered by the Court.

77 The evidence of the court appointed expert is, subject to any proper objection of a party, received as evidence in the proceedings along with the other expert and lay evidence. It is considered by the Court together with that other evidence relating to the relevant issues: para 9 of the Practice Direction No 1 of 2005: Court Appointed Experts.

78 Again, as I stated in Vigor Master Pty Ltd v Warringah Council [2006] NSWLEC 140 (29 March 2006):

“[52] The obtaining of a court appointed expert’s evidence does not relieve the Court of its duty to consider all the evidence in the case: Mifsud v Campbell (1991) 21 NSWLR 725 at 728D.
[53] The Court’s duty is to look at the court appointed expert’s evidence and to obtain from it (with or without cross-examination) whatever assistance it can. This does not mean that the Court is bound to accept the report: Non-Drip Measure Co. Ltd v Strangers Ltd (1942) 59 RPC 1 at 24; Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd (1979) 144 CLR 253 at 269; Botany Bay City Council v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 414 (6 December 2004) at [54]; PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41 (10 February 2005) at [31].
[54] The Court is also a specialist tribunal. Where the Court determining a merit appeal is constituted by a commissioner who is an expert in a relevant discipline, the commissioner is entitled and is expected to bring his or her own expertise and experience to the questions in issue. The commissioner’s task is not so much to decide which expert (the court appointed expert or the applicant’s expert) is right and which expert is wrong, but to derive what assistance the commissioner can from the experts in arriving at the commissioner’s own assessment: Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 303 (15 June 2005) at [43].”

79 It is a misunderstanding of the role of the court appointed expert in a planning appeal to look only at the ultimate opinion that the expert expresses. Expert evidence, whether of a court appointed expert or other expert, is designed to assist the Court to draw conclusions in relation to the issues that are within the expertise of the expert. Although the prohibition on an expert giving an opinion about the ultimate issue has been abolished by s 80 of the Evidence Act 1985 (NSW) in proceedings where the rules of evidence apply, it is not the role of the expert in a planning appeal to express an opinion on the ultimate issue as to whether development consent should be granted. Such an opinion is of no assistance to the Court. The ultimate issue as to whether development consent should be granted is for the Court to determine, exercising the functions of the consent authority.

80 An expert expresses opinions on only one or some of the matters that are relevant to be considered in determining the development application and the appeal. It is the role of the Court, exercising the functions of the consent authority, to consider all of the matters that are relevant to the development the subject of the development application under s 79C of the EPA Act and to give such weight as the court considers appropriate in the circumstances to each of those matters. This involves assessing all of the evidence in relation to all of the matters. The expert’s evidence will comprise only part of the total evidence considered by the Court and will relate to only one or some, but certainly not all, of the matters required to be considered by the Court.

81 Furthermore, the real utility of expert evidence provided by a court appointed expert, or indeed any expert, is not an opinion on the ultimate issue in the case but the intermediate opinions on each matter within the expert’s field of expertise together with the factual foundation of each opinion and the reasoning process by which the expert moves from that factual foundation to the opinion expressed.

82 The factual foundation and the reasoning process for the opinions established in the expert evidence can be used, legitimately, by the parties either to support the conclusion expressed by the expert or to derive an alternative conclusion to that reached by the expert. The Court can similarly use the factual foundation established in the expert evidence and the reasoning process from that factual foundation to arrive at the same or different conclusions to that expressed by the expert.

83 The Council in this case proceeded in this manner. It made submissions that different conclusions should be drawn from the factual foundation established in the expert evidence and also from the evidence of the residents. The Council was entitled to do so. Contrary to the appellant’s submission, it was not necessary for the Council to call another expert to contradict the opinions of the court appointed expert and the applicant’s experts and which mirrored the submissions the Council wished to make. The Council was able to use the evidence that was available before the Court, both expert and lay, to found its submissions.

84 The judgment of Commissioner Tuor also discloses that there was a legitimate debate on the central issues raised in the case. The judgment does not establish that the evidence was all one way or that there was no rational argument to the contrary of the applicant’s arguments. The fact that Commissioner Tuor ultimately determined the issues in favour of the applicant’s arguments does not speak against these conclusions.

85 The circumstances of this case do not fall within the categories where the Court has in previous cases found it to be fair and reasonable to make an order for costs, such as the circumstances set out in sub-paragraphs 15(d), (f) or (g) of Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) or in ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 256 (26 April 2006).

86 The evidence of the objectors was not irrational and the Council did not blindly accept subjective fears or concerns of objectors. The circumstances in New Century Developments v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003) are distinguishable.

87 For these reasons, I do not consider that the making of a costs order is, in the circumstances of this particular case, fair and reasonable.

88 In relation to the costs of the motion, the usual rule is that the successful party is entitled to its costs: Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [74]. Accordingly, the applicant should pay the Council’s costs of the applicant’s motion for costs of the proceedings.

Orders

89 Accordingly, I make the following orders:

1. Each party pay their own costs of the proceedings.

2. The applicant pay the Council’s costs of the applicant’s motion for costs.

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