Ross v Lane

[2021] NSWLEC 61

Land and Environment Court

New South Wales

Medium Neutral Citation:

Olivia Ross v Patrick Lane [2021] NSWLEC 61

Hearing dates:

2 June 2021

Date of orders:

10 June 2021

Decision date:

10 June 2021

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [61].

Catchwords:

EVIDENCE: whether expert town planning and survey evidence should be permitted in judicial review proceedings where only declaratory relief claimed – whether expert town planning evidence necessary to demonstrate materiality of jurisdictional error – materiality conceded – whether expert survey evidence necessary to establish a jurisdictional fact – no error identified in survey material before the Council at the time it granted the consent – no error identified in the manner in which the Council considered the survey material before it – expert evidence not required.

PROCEDURE: application to inspect land the subject of judicial review proceedings – whether inspection of land by town planner and surveyor required – power of the Court to order inspection of land – inspection not required because expert evidence not required.

Legislation Cited:

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

Environmental Planning and Assessment Act 1979, cl 4.15(1)(a)

Evidence Act 1995, s 169(1)

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cls 4(1), 28, 30

Sydney Local Environment Plan 2012, cls 4.3, 4.6

Uniform Civil Procedure Rules 2005, rr 23.8, 31.17, 31.19

Cases Cited:

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 383 ALR 407

Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73

Attorney-General (NT) v Hand [1988] FCA 272; (1988) 16 ALD 318

Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536

Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141

Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156

Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349

Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442

Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; (2012) 194 LGERA 226

Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 3) [2014] NSWLEC 133

Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229

Gilbank v Bloore [2012] NSWLEC 172

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Liverpool City Council v Tabone [2021] NSWLEC 3

McCormack v Deputy Commissioner of Taxation [2001] FCA 1700; (2001) 114 FCR 574

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151

Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Reysson Pty Ltd v Minister Administering the Environment Planning and Assessment Act 1979 [2020] NSWCA 281

Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348

Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Category:

Procedural rulings

Parties:

Olivia Ross (Applicant)
Patrick Lane (First Respondent)
The Council of the City of Sydney (Second Respondent)

Representation:

Counsel:
L Sims (Applicant)
Dr J Smith (First Respondent)

Solicitors:
Benjamin & Khoury (Applicant)
Swaab Attorneys (First Respondent)

File Number(s):

2020/321900

Publication restriction:

Nil

Judgment

Applicant Seeks an Order for the Filing of Expert Evidence in Judicial Review Proceedings

1. The applicant, Olivia Ross, and the first respondent, Patrick Lane, are embroiled in a dispute concerning a consent granted by the City of Sydney Local Planning Panel as delegate of the second respondent, the Council of the City of Sydney (“the Council”), on 12 August 2020. The consent was granted in respect of alterations and additions to an existing residential apartment building at 10 Onslow Ave, Elizabeth Bay (“the site”). They comprise an additional level on the southern portion of the building to create a new living space, bathroom, and outdoor terrace to apartment 11 (“the consent”).

2. The two grounds of review contained in the amended summons filed on 29 January 2021, are that:

1. first, the Council failed to comply with the jurisdictional preconditions to the making of the decision mandated by cls 28 and 30 of the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (“SEPP 65”), insofar as the development application did not provide a design verification certificate and various information and drawings relevant to the design quality principles and the Apartment Design Code (“the SEPP 65 considerations”); and

2. second, the Council did not have jurisdiction to grant consent to the development application because the proposed development exceeded the building development standard maximum height of 22m (measured from the existing level of a site at any point to the highest point of the building) in cl 4.3 of the Sydney Local Environment Plan 2012 (“the SLEP”), and Lane did not make a request in writing to the Council to approve the development notwithstanding any non-compliance with the relevant development standard (see cl 4.6(3) and (4) of the SLEP).

3. Section 4.15(1)(a) of the Environmental Planning and Assessment Act 1979 relevantly states that:

4.15    Evaluation

(1)    Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)    the provisions of—

(i)    any environmental planning instrument, and

(ii)    any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)   any development control plan,…

4. Pursuant to cl 4(1) of SEPP 65, that environmental planning instrument applies to:

4    Application of Policy

(1)    This Policy applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component if—

(a)    the development consists of any of the following—

(i)   the erection of a new building,

(ii)    the substantial redevelopment or the substantial refurbishment of an existing building,

(iii)    the conversion of an existing building, and

(b)    the building concerned is at least 3 or more storeys (not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking), and

(c)    the building concerned contains at least 4 or more dwellings.

5. Clause 28 of SEPP 65 relevantly provides that:

28    Determination of development applications

(1)    After receipt of a development application for consent to carry out development to which this Policy applies (other than State significant development) and before it determines the application, the consent authority is to refer the application to the relevant design review panel (if any) for advice concerning the design quality of the development.

(2)    In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration)—

(a)    the advice (if any) obtained from the design review panel, and

(b)    the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

(3)    However, if the relevant design review panel fails to inform the consent authority of its advice concerning the design quality of the development to which this Policy applies within 14 days after its first meeting to deal with the application concerned, the consent authority may determine the development application without considering any such advice and a development consent so granted is not voidable on that ground.

6. Clause 4.3 of the SLEP relevantly states that:

4.3    Height of buildings

(1)    The objectives of this clause are as follows—

(a)    to ensure the height of development is appropriate to the condition of the site and its context,

(b)    to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,

(c)    to promote the sharing of views,

…

(2)    The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

7. Only declaratory relief as to the validity of the consent is sought in the amended summons.

8. Both Lane and the Council have filed a response to the amended summons. The Council is not an active participant in this application, having filed a submitting appearance.

9. Lane’s response is to the effect that he denies the first ground of the amended summons. In respect of the second ground, he does not admit that the development standard concerning height has been breached. At paragraph 16 he pleads that the amended summons “does not disclose with any precision the point at which the Applicant says the building exceeds a height of 22 metres”. This is correct.

10. The Council disputes that SEPP 65 and the Apartment Design Guide applied to the development (in approving the development application the Council determined that it did not apply). In addition, the Council disputes that the development exceeds the height building control in cl 4.3 of the SLEP, and therefore, contends that no contravention arises. A particular to the latter pleading states that “the Council had sufficient material available to it in the application for the Development to be able to determine the height of the building and the height of the Development”. It is not in dispute that there was material before the Council identifying the height of the building and of the proposed works.

11. The proceedings have been listed for final hearing for two days commencing on 13 October 2021.

12. By amended notice of motion filed on 24 May 2021, Ross seeks the following relief:

1 Pursuant to rule 31.19 of the Uniform Civil Procedure Rules 2005, the Court makes the following directions regarding expert evidence:

a.    Mr Michael Lockley may prepare an individual expert’s report on building height as identified in paragraph 6 of the Affidavit of Dieb Peter Khoury dated 27 April 2021.

b. Mr Ben Tesoriero may prepare an individual expert’s report on compliance with the Apartment Design Guide as identified in paragraph 6 of the Affidavit of Dieb Peter Khoury dated 27 April 2021.

2 Pursuant to rule 23.8 of the UCPR, the Court authorises Mr Michael Lockley and Mr Ben Tesoriero and their agents to access the property known as 21C Billyard Avenue & 10 Onslow Avenue, Elizabeth Bay (Strata Plan 9561) to inspect and take any measurements and/or photographs they think necessary in order to prepare the report referred to in order 1 above.

13. Both orders were resisted by Lane. In the result, Ross withdrew her application with respect to the town planning evidence and the Court has not acceded to her request for leave to file expert surveying evidence or for access to the site for the purpose of inspection.

Whether the Proposed Expert Town Planning and Survey Evidence Should be Permitted to be Filed

The Granting of Leave to Rely on Expert Evidence in Judicial Review Proceedings

14. Rule 31.19 of the Uniform Civil Procedure Rules 2005 (“UCPR”) relevantly states as follows:

31.19   Parties to seek directions before calling expert witnesses

(1)    Any party:

(a)    intending to adduce expert evidence at trial, or

(b)    whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2)    Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3)   Unless the court otherwise orders, expert evidence may not be adduced at trial:

(a)    unless directions have been sought in accordance with this rule, and

(b)    if any such directions have been given by the court, otherwise than in accordance with those directions.

15. The context to r 31.19 of the UCPR is found in r 31.17, which provides that the main purposes of the division in which the former rule appears include:

31.17    Main purposes of Division

The main purposes of this Division are as follows—

(a)    to ensure that the court has control over the giving of expert evidence,

(b)    to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,

(c)    to avoid unnecessary costs associated with parties to proceedings retaining different experts,

(d)   if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

(e)    if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,

(f)    to declare the duty of an expert witness in relation to the court and the parties to proceedings.

16. The legal principles applicable to the exercise of the discretion to grant leave to adduce expert evidence in judicial review proceedings have been reviewed in a number of authorities (Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38 at [42]-[45]; (2013) 195 LGERA 229; Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 3) [2014] NSWLEC 133 at [22]-[25]; DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156; Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348; Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113; (2012) 194 LGERA 226 at [66]-[83]; Gilbank v Bloore [2012] NSWLEC 172 at [7]-[12]; Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [119]-[139]; Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWLEC 14 at [18]-[40]; and Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141 at [4] and [5]).

17. The Court of Appeal considered the rationale underpinning r 31.19 of the UCPR in Shellharbour City Council where Giles JA stated that (at [35]):

35    … The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible.

18. Relevance and admissibility are therefore insufficient to guarantee that leave will be granted to rely on the expert evidence. Instead, when exercising the discretion available under the rule, it will be necessary for the Court to determine whether the evidence is "reasonably required" in order to ensure the just, quick, and cheap disposition of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (“CPA”), as informed by ss 57-60 of that Act).

19. The circumstances in which expert evidence is admissible in judicial review proceedings is confined (Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540; McCormack v Deputy Commissioner of Taxation [2001] FCA 1700; (2001) 114 FCR 574 at [37]-[41]; DEXUS at [9]; and Friends of King Edward Park at [74]). Expert evidence is generally not admissible in respect of a ground of review premised on a bare allegation of an error of law (Attorney-General (NT) v Hand [1988] FCA 272; (1988) 16 ALD 318 at [23] per Wilcox J; Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77-78 per Brennan J; and Attorney-General (NT) v Minister for Aboriginal Affairs at 540).

20. The issue is tested by reference to the grounds of review in issue (Attorney-General (NT) v Minister for Aboriginal Affairs at 539-540 per Lockhart J and Friends of King Edward Park at [74] and the authorities usefully collected thereat per Biscoe J). As Preston J pithily put it in Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 (at [42]):

42    As was noted in Arnold v Minister Administering the Water Management Act 2000 (No 6) at [123], “the admissibility of evidence not actually or constructively before the decision-maker on an application for judicial review of an administrative decision depends on the ground of review, the relevant issue and the nature of the evidence.” See also Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540; McCormack v Commissioner of Taxation (Cth) (2001) 114 FCR 574; [2001] FCA 1700 at [38]; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at [459]. There is no general rule against the admission of expert evidence in judicial review cases: “everything depends upon the grounds of review and the circumstances of the case”: Australian Retailers Association v Reserve Bank of Australia at [459].

21. Material that was not before the decision-maker may be admissible if, for example, the ground of review pleaded is that of manifest unreasonableness; there was a failure to make inquiries where the decision-maker was under a duty to do so and where those inquiries would have revealed information readily available and relevant to the determination to be made (Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155; Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [65]-[67]; and DEXUS at [9]); or, on occasion, breach of procedural fairness based on a legitimate expectation that a decision-maker would follow particular procedures that were not followed (see Friends of King Edward Park at [75]-[82]).

22. Generally, whether or not a decision-maker has failed to consider a mandatory relevant consideration is determined by reference to the record before the decision-maker, assuming of course that the consideration was required to be taken into account as a matter of statutory construction; not by reference to additional material such as expert scientific evidence (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40; Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at [22]-[23]; and Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349 at [126] and [132(1)-(5)]).

The Granting of Access to the Site for the Purpose of Inspection by the Experts

23. Ross also seeks an order that both experts be granted access to the site for the purpose of preparing their evidence.

24. For present purposes, r 23.8 of the UCPR states:

23.8    Inspection of property

(1)    For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following—

(a)   the inspection of any property,

(b)    the taking of samples of any property,

(c)    the making of any observation of any property,

(d)    the trying of any experiment on or with any property,

(e)    the observation of any process.

(2)    An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property.

(3)    A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made.

(4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.

25. Section 169(1) of the Evidence Act 1995 provides that:

169    Failure or refusal to comply with requests

(1)    If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders—

(a)    an order directing the party to comply with the request,

(b)    an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166,

(c)    an order that the evidence in relation to which the request was made is not to be admitted in evidence,

(d)    such order with respect to adjournment or costs as is just.

26. There is no doubt that, having regard to the provisions of the UCPR and the Evidence Act, the Court has discretionary power to order an inspection of land for the purpose of and in the manner contemplated by Ross (see Liverpool City Council v Tabone [2021] NSWLEC 3 at [15]). Again, the exercise of this discretion is informed by the overriding purpose contained in s 56 of the CPA.

27. Ross conceded that if leave was not granted by the Court for her to rely on either or both proposed experts, then the logical corollary of that decision would be that no access and inspection order would be made by the Court. This concession was, in my view, correctly and properly made.

28. After further discussion, Ross additionally agreed that, even if expert town planning evidence was permitted, it was not necessary for the town planner to have access to the site in order to prepare and complete their expert report. That is, the report could be prepared on the basis of existing documentary material. I agree.

29. Not dissimilarly, Lane conceded that if the Court granted leave to Ross to rely upon expert survey evidence for the reasons argued by her, then access to the site for the purpose of taking the necessary measurements would be essential. Again, I agree.

30. It therefore follows that access to the site by Ross’s nominated surveyor falls to be determined by the conclusion that the Court reaches as to whether or not to grant leave to Ross to rely on such evidence.

The Town Planning Expert Evidence is Not Necessary

31. Initially, Ross submitted in writing that town planning evidence was required in respect of the following matters:

a.    Whether the setbacks of the balcony and windows of the new level of apartment 11 comply with the design criteria in Part 3F of the Apartment Design Code.

b.   Whether the ceiling height of the new level of apartment 11 complies with the design criteria in Part 4C of the Apartment Design Code.

c.    Whether any aspect of the proposed development does not comply with the design criteria of the Apartment Design Code.

32. Ross argued that because the procedural requirements under SEPP 65 are jurisdictional preconditions to the grant of consent, any failure to comply with them amounted to a “legal error” by the Council, and therefore, expert town planning evidence was needed to establish that the error was material (citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421). Expert town planning evidence was therefore necessary to demonstrate what information the Council “would have considered had it complied with the procedures in SEPP 65”, and moreover, whether compliance with those processes “could realistically have resulted in a different decision”.

33. Ross contended that the making of an order directing that expert town planning evidence be filed was consistent with authority in this Court permitting expert evidence to be relied upon in judicial review proceedings as to what inquiries, reports, or consultations “would have revealed” where there was an alleged failure to make inquiries, receive reports, or consult with authorities (citing CalderaEnvironment Centre Inc v Tweed Shire Council [1993] NSWLEC 102; Friends of King Edward Park; and Gilbank, among others).

34. During the course of the hearing Lane conceded that, as framed in the amended summons, if the Council was obliged to consider SEPP 65, that is, if he was wrong that the development did not constitute “the substantial redevelopment or the substantial refurbishment of an existing building” (cl 4(1)(a)(ii) of SEPP 65), then the Council’s decision to grant the consent was infected with jurisdictional error of a material kind. It was, in my opinion, a concession correctly made by Lane having regard to the authorities.

35. As a consequence, Ross amended her notice of motion to withdraw her application for leave to rely on expert town planning evidence and for access to the site by her town planner.

36. But even if the concession had not been made, I would not have granted Ross leave to rely on expert town planning evidence in any event. This is because, in seeking to rely upon expert town planning evidence, Ross had misconceived the application of the concept of materiality as expressed in the cases.

37. It is recognised that not every error of law will invalidate an exercise of statutory executive power (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91]-[93]). Non-compliance with an express or implied condition of an exercise of power, as pleaded here, will result in a decision exceeding the limits of the decision-making authority conferred by statute unless the compliance was not material (Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; SZMTA; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 383 ALR 407; and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17).

38. At issue is whether the asserted jurisdictional error could – not would – have made a difference to the decision that was made in all the relevant circumstances (MZAPC at [84]). In SZMTA a majority of the High Court of Australia explained that materiality involved a “realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred” (MZAPC at [2]). The existence or non-existence of a realistic possibility that the decision could have been different is a question of fact (MZAPC at [2]).

39. The process is two-fold (MZAPC at [85]):

85    There are evidently two steps. First, it is necessary for an applicant for judicial review to identify an error and establish that the identified error could realistically have resulted in a different decision. This sets a low bar. It would be a mistake to describe this as an evidentiary onus. The task of demonstrating that a decision could realistically have been different had an error not occurred is better understood as directed at the quality or severity of the error and what, as a matter of logic and common sense, might have resulted. It necessarily calls for an assertion as to how a decision might have been different and an explanation as to why that is so. But because the bar is low, a court should hesitate to reject a sensible and reasonable postulation about what the result could have been. Naturally, speculation and conjecture will not be sufficient. More is needed. But it is not necessarily a task which is determined by leading evidence and by demonstrating what is possible on the balance of probabilities. That is because the subject matter of the inquiry is hypothetical; it is not a matter of proving what could have happened. Rather, the task is one of persuasion, based upon the nature of the breach and the claims that have been made, as well as logic and common sense. Put in different terms, precisely what must be shown will depend upon the nature of the alleged error. In some cases, however, an error will be jurisdictional regardless of the effect the error may have had on the conclusion of the decision-maker.

40. The question of who must demonstrate materiality was determined in SZMTA to be the applicant and not the decision-maker whose decision is under review. This was recently affirmed authoritatively by the majority in MZAPC (at [2] and [3]).

41. The town planning evidence proposed by Ross sought to undertake an assessment of the development against SEPP 65 and the Apartment Design Guidelines. In Ross’s submission, it would provide “evidence as to what information the Second Respondent would have considered had it complied with the procedures in SEPP 65.” But the issue of whether or not the Council failed to take into account any mandatory SEPP 65 considerations (assuming their application) will be evident from the decision of the Council and the material before the Council at the time that it made its decision. If SEPP 65 and the Apartment Design Guidelines applied and were not considered by the Council then, applying the test for materiality in the decisions referred to above, there is, in my opinion, more than a realistic possibility that the decision in fact made could (not would) have been different, and materiality will be established by Ross. In other words, the challenge raised by ground 1 of the amended summons is a self-evident proposition not requiring expert evidence for its establishment.

42. Because the subject matter of the materiality inquiry is hypothetical, there is no need to lead expert town planning evidence. Reason will suffice. By seeking to rely on expert town planning evidence, Ross is effectively inviting the Court to impermissibly trespass into the merits of the Council’s decision (Peko-Wallsend at 40-42). If accepted, the logical corollary of Ross’s contentions in relation to materiality would be to permit expert evidence to be adduced in most judicial review challenges in this Court. This speaks against the correctness of her analysis of materiality and its application to these proceedings.

43. Finally, and for the sake of completeness, I do not accept the submission made by Ross that the orders sought in the notice of motion were consistent with authorities in this Court permitting an applicant for judicial review who alleges failures to make inquiries, to lead evidence as to what those inquiries would have revealed. Several observations may be made in response to this submission. First, as framed in the amended summons, ground one does not give rise to an analogous duty to inquire as articulated in Prasad and the cases cited by Ross (the touchstone of which is an obligation to afford procedural fairness). On the contrary, if the SEPP 65 considerations applied to the development, the Council was obliged to refer the development application to the relevant design review panel for advice concerning the design quality of the development and to take into account the advice received from that panel (cl 28). The Council was also obliged to take into account as a mandatory consideration the Apartment Design Guide (cl 28(2)). The duties imposed on the Council in each instance are not in doubt. Second, decisions such as Caldera and others of its ilk and vintage must now be treated with caution given that they were handed down before the concepts of jurisdictional error and materiality were conceived of.

The Expert Surveying Evidence

44. A similar conclusion may be reached in relation to the expert surveying evidence. According to Ross, the proposed survey evidence will assist in resolving:

a.    The height of the existing Building, without the Development.

b.    The height of the Development once constructed.

c.   Which parts of the Building (if any) exceed the Height Standard before the Development is constructed.

d.    Which parts of the Building (if any) will exceed the Height Standard once the Development is constructed.

45. In this context, the following relevant facts were agreed to between the parties:

5.   The height of buildings map applicable to the land the subject of the development application specifies a maximum height of 22m for the purposes of the height of buildings development standard in clause 4.3 of Sydney Local Environmental Plan 2012 (Sydney LEP).

6.   The First Respondent did not make a written request in relation to the height of buildings development standard as referred to in clause 4.6 of Sydney LEP.

7.   The development application contained documentation that purported to identify the height of the existing building and the height of the proposed works to be carried out under the development application.

8.   The application for development consent contained documentation that purported to identify the height of the existing building and the height of the proposed works. This documentation purported to identify:

a.   that the existing building exceeded the maximum height on the northern portion of the lift overrun;

b.   that the works proposed by the development did not exceed the 22M maximum height;

c.   that the development did not alter the existing height exceedance of the building.

9.   On 23 March 2021, the First Respondent sent a letter to the Applicant's solicitor seeking further and better particulars in relation to paragraph 16 of Ground 2 of the Amended Summons. The First Respondent requested the following further and better particulars:

a.   "please identify, with reference to a plan, which part of the development your client alleges breaches the 22m height standard; and

b.   please identify, with reference to plan, the location at which your client measures ground level (exiting) to the height point of the building."

46. It is not in dispute that Ross has not provided any reply to Lane’s request for further and better particulars dated 23 March 2021. That is, Ross has not identified any error, fault, or deficiency in the survey material that was before the Council and upon which the Council determined that the height development standard had been complied with.

47. Ross argues that the expert survey evidence is required to determine a jurisdictional fact, namely, whether the height of the building the subject of the development application exceeded the development standard contained in cl 4.3 of the SLEP. If it did, then in the absence of any written request from Lane to vary that standard, the Council did not have jurisdiction to grant consent. The Court must inquire into the existence of whether or not the proposed development complies with the development standard contained in the SLEP and expert surveying evidence is needed to determine this fact.

48. In my view, this submission cannot be accepted. While ultimately a matter for determination by the trial judge, a brief review of the authorities reveals that this argument is highly unlikely to succeed. That is, the height of the building is not a jurisdictional fact in the relevant sense thereby allowing the Court to decide for itself whether or not the height standard had been breached.

49. The use of the term ‘jurisdictional fact’ can sometimes be misleading. There is, for example, a difference between the determination of a precondition to the engagement of statutory power and the objective circumstances to which the Council is required to turn its attention to. As was stated by Basten JA (with whom Macfarlan and Meagher JJA agreed) in Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 at [9]-[11] and [52], footnotes omitted):

9    The language of “jurisdictional fact” is commonly used as a basis for review of administrative decisions. A “jurisdictional fact” describes a fact which is an essential precondition to the exercise of a power. For a person to seek to exercise the power absent such a fact is to act without legal authority.

10    Preconditions to the engagement of a power come in different forms. One common form is a requirement that the repository of the power be “satisfied” as to the existence of a particular matter. Perhaps unhelpfully, the existence or absence of such an opinion is itself referred to as a “jurisdictional fact”.

11    For legal purposes, facts do not exist, or not exist, in the ether. The existence or otherwise of a fact depends on a body with authority to do so making a finding as to the existence of the fact. To describe a fact as jurisdictional is to say that its existence or otherwise may depend upon a finding, not by the repository of the power, but by a court with the function of reviewing the repository’s decision. As a practical matter, a party challenging the existence of such a fact will be entitled to call evidence and, in effect, carry out a trial in the original jurisdiction of the court, to the extent necessary for the court to determine the fact.

…

52    It is appropriate, however, to make some further comment as to the approach adopted in Pallas Newco with respect to the concept of “jurisdictional fact”. As explained in Corporation of the City of Enfield, “[t]he term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.” In short, the phrase “jurisdictional fact” is a potentially confusing label for what is better described as a precondition to the engagement of a statutory power.

50. Whether legislation creates a jurisdictional fact of the kind to be objectively ascertained by the Court is a question of statutory construction (Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 and Reysson Pty Ltd v Minister Administering the Environment Planning and Assessment Act 1979 [2020] NSWCA 281 at [53]).

51. Various factors have been identified in the case law that have a bearing on the correct identification of a jurisdictional fact of the type that would permit the Court to determine the existence of the fact for itself (Reysson at [55]):

55    This Court has on a number of occasions identified the considerations bearing on the correct identification of a jurisdictional fact: Timbarra; Pallas Newco; Hunter Industrial Rental Equipment; Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695. In the present case the following were of particular relevance:

(1)    the structure of the legislation…: Pallas Newco at [46]; Timbarra at [52]; Colonial Bank of Australasia v Wilan (1874) LR 5 PC 417 at 442-443;

(2)    the nature of the task to be performed. If the resolution of the relevant matter said to be a jurisdictional fact is a straightforward one lending itself readily to objective resolution, it is more likely to be an objective jurisdictional fact. By contrast, the opposite conclusion is likely if the task is:

(a)    a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10;

(b)    one involving an “evaluative judgment”: Muswellbrook Shire Council per Basten JA at [31] (with whom Leeming JA agreed at [203]);

(c)    one raising “issues of fact and degree”: Pallas Newco per Spigelman CJ at [56]; or

(d)    one where “assessment and value judgments” need to be made: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 per French CJ at [57].

52. The extent of the evaluative exercise and the degree of inconvenience are material factors to be taken into account to inform the interpretative task (Reysson at [56]).

52. Although, to reiterate, the question of whether compliance with the building height development standard is a matter for the trial judge, having regard to the criteria outlined above, in my view, it is unlikely that the proper construction of cls 4.3 and 4.6 of the SLEP results in the conclusion that it is part of the Court’s role to determine for itself whether the development breached the height standard.

53. Accordingly, provided that the Council attained the necessary state of satisfaction that the height of the building was less than 22m, the statutory precondition will have been met.

54. Determination of whether the statutory precondition as to the height of the building was met does not, in my view, require the opinion and expertise of a surveyor. As noted above, Ross has not been able to identify any error in the material before the Council when it made its determination or in the manner by which it satisfied itself that the height standard had been met. Rather, establishment of what Ross describes as a ‘jurisdictional fact’ can be ascertained by looking at the various plans and related documents submitted with the development application that were before the Council when it granted consent. In other words, “expert evidence is not required to prove matters which can be readily discerned from documents” (Botany Bay City Council at [20]).

55. Lane took the Court to the Council’s Planning Assessment Report dated 12 August 2020, where express reference is made to the “City’s Model Team and Surveyors” and to the view impact documentation (that impact is at the heart of these proceedings), including the reduced level (or RL) measurements on the drawings submitted with the development application. A review of this material indicates that the existing building was found to be lower than previously thought, and therefore, well below the maximum height requirement permitted in the development standard. Plans tendered before the Court which were before the Council at the time that it made its decision, which included a registered surveying plan, clearly indicate that the height of the building as modified by the proposed development is below the 22m height line mandated by the SLEP.

56. In the absence of Ross being able to identify any error inherent in the material before the Council, in the Council’s deliberations, or in the decision that the Council made based upon that material, it is difficult to conceive of any reasonable basis for the preparation of expert surveying evidence in the proceedings. Indeed, there is considerable force in the contention by Lane that the application for leave to rely on expert surveying evidence amounts to “fishing” by Ross.

Conclusion and Orders

58. In conclusion, the Court declines to grant leave to Ross to rely on both expert town planning and expert survey evidence. It therefore declines, in conformity with the concessions made by the parties, to make an order allowing access to the land in relation to either expert for the purpose of inspecting the building the subject of the consent. The notice of motion must therefore be dismissed.

59. Because these are Class 4 proceedings, costs follow the event. There is nothing about the circumstances of this application that would cause the Court to make a different order. I do not consider Lane’s concession regarding the materiality of the alleged error by the Council discussed above sufficient to alter this position. Accordingly, Ross must pay Lane’s costs of the notice of motion.

60. Given that this is a dispute between two neighbours, with the Council playing no active role in the proceedings, the Court raised the possibility of mediation notwithstanding that the proceedings seek judicial review of the Council’s decision to grant consent. After discussion with the parties, the Court, albeit reluctantly, decided against making an order that the matter be mediated. However, concerned at the likely cost of the proceedings to the parties, especially the unsuccessful party, the Court decided to make “such further or other order as the Court sees fit”, namely, an order that each party’s legal representative write to that party setting out the costs, especially if that party is ultimately unsuccessful, of the proceedings (which currently have a two day estimate).

61. The formal orders of the Court are therefore that:

1. the notice of motion filed by the applicant on 24 May 2021 is dismissed;

2. the applicant is to pay the first respondent’s costs of the motion;

3. the solicitors on the record for the applicant and for the first respondent are, with seven days of the publication of these reasons, to notify in writing the party for whom they act of the estimated costs up to and including a two day hearing, together with an estimate of the costs if that party is unsuccessful at the final hearing;

4. the exhibits are to be returned; and

5. the matter is to be listed for further directions before the list judge on 18 June 2021.

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Decision last updated: 10 June 2021