Rossi v Living Choice Australia Ltd t/as Living Choice

[2012] NSWLEC 112

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Rossi v Living Choice Australia Ltd t/as Living Choice & Ors [2012] NSWLEC 112
Hearing dates:	15 May 2012
Decision date:	16 May 2012
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See [66]
Catchwords:	EXPERT EVIDENCE: application to adduce expert evidence in judicial review proceedings - application made before pleadings finalised - whether leave granted under r 31.19 of the Uniform Civil Procedure Rules 2005 - whether expert evidence reasonably required - leave refused. COSTS: whether applicant to pay the costs thrown away occasioned by amendments to points of claim - whether applicant to pay costs of joinder of third respondent -applicant to pay costs of first and second respondent thrown away occasioned by amendments to points of claim and of joinder of third respondent where applicant ought to have been aware third respondent was the consent authority - applicant to pay first respondent's costs of motion to adduce expert evidence.
Legislation Cited:	Civil Procedure Act 2005, ss 56-60, 98 Environmental Planning and Assessment Act 1979, ss 23G, 79C, 81, 96 Uniform Civil Procedure Rules 2005, rr 31.17(b), 31.19
Cases Cited:	DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156 INL Group Ltd v Director-General, New South Wales Department of Planning [2011] NSWLEC 256 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division) [2011] NSWLEC 191 Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Category:	Procedural and other rulings
Parties:	Anthony Rossi (Applicant) Living Choice Australia Ltd t/as Living Choice (First Respondent) Hills Shire Council (Second Respondent) Joint Regional Planning Panel (Third Respondent)
Representation:	Ms J F Berglund (Applicant) Ms H P Irish (First Respondent) Mr J Lazarus (Second Respondent) N/A (Third Respondent) D G Briggs and Associates (Applicant) Pikes Lawyers (First Respondent) Maddocks (Second Respondent) N/A (Third Respondent)
File Number(s):	40018 of 2012

Ex Tempore Judgment

Two Notices of Motion Are Before the Court

1. Before the Court are two notices of motion: the first is an application that the applicant, Mr Anthony Rossi, pay the costs of the first and second respondents (the third respondent has filed a submitting appearance) occasioned by his amendments to his points of claim and the costs of a largely discontinued notice of motion; and the second is an application by Mr Rossi that he be granted leave to adduce expert evidence in support of his judicial review proceedings in this Court. I will deal with each in turn.

The Respondents Seek the Costs Thrown Away Occasioned by the Applicant's Amendments to the Pleadings and Joinder of the Third Respondent

1. On 27 April 2012, the Court made orders granting Mr Rossi leave to join the Joint Regional Planning Pannel (Sydney West Region) ("the JRPP") as a party to the proceedings. The Court also granted Mr Rossi leave to file and serve amended points of claim in accordance with a draft of that document dated 30 April 2012 that had been provided to the Court. Neither order was opposed by the first or second respondent, but both reserved debate on the issue of costs.

1. This leave had been originally sought by Mr Rossi in a notice of motion filed 27 March 2012. In addition to the orders made above, Mr Rossi sought additional orders in that motion including an order: that he be granted leave to discontinue the proceedings against the second respondent, The Hills Shire Council ("the council"); that he be awarded the costs of a mediation held on 16 March 2012; that a costs order made by Pain J on 6 March 2012 that Mr Rossi pay half of the council's costs of his earlier failed notice of motion for expedition be vacated; and that the hearing of the proceedings be expedited. These additional orders were abandoned by Mr Rossi when the matter was before the Court on 27 April 2012.

1. In this application both the council and the first respondent, Living Choice Australia Ltd ("Living Choice"), seek to agitate the reserved costs issues. Those parties seek an order that:

(a) Mr Rossi pay their costs of the largely abandoned notice of motion filed 27 March 2012; and

(b) that Mr Rossi pay their costs thrown away occasioned by his amendments to the points of claim.

Living Choice Builds a Retirement Village

1. Mr Rossi is the owner of land situated at 1A Edgecliff Road, Glenhaven (Lot 33 in DP 852636). This land is zoned 1(c) under the Baulkham Hills Local Environmental Plan 2005 ("the LEP") and compromises an area of approximately 2 ha with a single detached dwelling house.

1. Living Choice owns, as tenants in common with another company, land situated at 93 Glenhaven Rd, Glenhaven (Lot 1 in DP 135818) and 15 Old Glenhaven Rd, Glenhaven (Lot 300 in DP 113039). This land is also zoned 1(c) under the LEP and compromises an area of approximately 13.25 ha ("the Living Choice Land").

1. On 19 August 2009 Living Choice lodged a development application with the council for the construction of a sizable retirement village ("the DA").

1. Specifically, the DA was for the construction of 97 one, two and three-bedroom villa units for use as serviced self care seniors living housing (with ancillary facilities, car parking and infrastructure).

1. On 23 September 2010 the JRPP determined the DA subject to conditions.

1. The JRPP was the consent authority responsible for determining the DA pursuant to s 23G of the Environmental Planning and Assessment Act 1979 ("the EPAA") and cl 13F of the State Environmental Planning Policy (Major Development) 2005 ("the SEPP"). The council was the body responsible for notifying Mr Rossi of the determination of the DA pursuant to s 81 of the EPAA and cl 13F(3) of the SEPP. The decision to approve the development was made by the JRPP because of the development's large capital value of approximately $45,000,000.

1. On 12 October 2010 the council purported to notify the determination of the DA pursuant to the EPAA. The Notice of Determination misleadingly stated (emphasis added):

Pursuant to Section 81 of the Environmental Planning and Assessment Act 1979 notice is hereby given of the determination by The Hills Shire Council of the Development Application referred to herein.

1. In notifying the decision, the council added general conditions of consent, including condition C(3). These additional conditions were not the subject of any resolution by the JRPP. Condition C(3) provided:

A separate Development Application and Construction Certificate Application are required for retaining walls where cut exceeds 1m in height, or fill to be retained exceeds 600mm in height. Structural Engineer's details are required to be submitted to Council as part of the application if the amount to be retained is over 1m in height.

1. On 23 March 2011 Living Choice lodged an application pursuant to s 96 of the EPAA to modify the development consent. The council determined the modification application on 27 June 2011 and notified its decision on 28 June 2011. Again, this decision was not the subject of any resolution by the JRPP.

1. Upon the commencement of the development, Mr Rossi noticed large amounts of fill were being moved onto the Living Choice Land site and were being placed along his common boundary.

1. Thus the gravamen of the dispute between Mr Rossi and the respondents is that the placement of this fill along the common boundary required assessment under s 79C of the EPAA at the time the DA was determined, and that this did not occur.

The Original Points of Claim as Pleaded by Mr Rossi

1. In his original points of claim Mr Rossi pleaded that the council had:

(a) failed to assess, pursuant to s 79C of the EPAA, how the volume, placement and method of retention of the fill would impact on the environment;

(b) deferred an essential consideration in approving the DA, namely, the method of retention of the fill;

(c) failed to consider a relevant matter and/or failed to properly consider a relevant matter, namely, the method of retention of the fill and the impact that any chosen method would have on the environment; and

(d) acted with manifest unreasonableness in approving the development consent.

1. Mr Rossi sought by way of relief a declaration that the development consent was void and of no effect and an order that Living Choice be restrained from carrying out any works pursuant to the consent.

Mr Rossi Opposes Paying the Respondents' Costs

1. Mr Rossi opposes the costs orders sought by the first and second respondents. He does so for the following reasons:

(a) first, when the summons was initially filed on 11 January 2012, the council was named as a party to the proceedings in the capacity of consent authority because it was not apparent from the face of the Notice of Determination issued by the council that the JRPP was in fact the consent authority;

(b) second, it was not until the council pleaded in its points of defence filed on 2 March 2012, which stated that the JRPP had determined the DA, that Mr Rossi became aware of this fact. This necessitated consequential changes to the points of claim and the application to join the JRPP as a proper party to the proceedings;

(c) third, although the decision to approve the DA had been made by the JRPP, the council, in notifying the decision, added further conditions to the development consent including condition C(3). Accordingly, although Mr Rossi initially believed that it was appropriate to discontinue the proceedings against the council, it was necessary to retain the council as a party to the proceedings; and

(d) fifth, on 24 April 2012, however, the council conceded in a letter to Mr Rossi's legal representatives that the conditions of consent added to the DA by the council did not form part of the DA because, as Mr Lazarus appearing for the council conceded, the council did not have the power to impose these conditions. This included condition C(3).

1. But, according to the affidavit of Mr Michael Winram sworn 7 May 2012 on behalf of the council (Mr Winram is the council's solicitor), Mr Rossi ought to have been aware that the JRPP was the consent authority from numerous references to the JRPP in documents provided to his legal representatives prior to the commencement of the proceedings, and because the council expressly indicated this by letter dated 10 January 2012.

1. Notwithstanding these disclosures, when proceedings were commenced on 11 January 2012, the council was named as the second respondent and was alleged to be the consent authority determining the DA.

1. It was not until 27 March 2012 that Mr Rossi subsequently filed the notice of motion seeking to join the JRPP and to discontinue proceedings against the council.

1. However, on 3 April 2012 Mr Rossi served the council with draft points of claim that curiously maintained all of the previous allegations made against the council but also added cognate claims against the JRPP, which by then had been joined as a party to the proceedings.

1. On 3 May 2012 the current version of the amended points of claim were filed and served by Mr Rossi (that is to say, following the council's letter of 24 April 2012 in relation to condition C(3)). In this amended pleading all of the previous claims made against the council, with the exception of the claim made in respect of condition C(3), were abandoned and the alleged failure by the council to notify Mr Rossi of the determination of the DA was pleaded as the primary ground in support of the claim that the consent was invalid.

1. The council submits that it has incurred costs responding to both the original points of claim, as well as the draft amended points of claim served on 3 April 2012, most of which have now been thrown away by reason of the subsequent abandonment of almost all of the claims originally made against it. On this basis, it argues, Mr Rossi should be liable for the council's costs occasioned by the amendments.

1. The position of Living Choice is not dissimilar. While its costs thrown away are likely to be insignificant compared to those of the council, it nevertheless submits that the pleadings challenge the validity of the whole of the consent, which it is entitled to defend. In doing so it has incurred legal costs in meeting allegations that have now been abandoned to which it is entitled to be recompensed. Living Choice seeks these costs on an indemnity basis.

Mr Rossi Must Pay the Respondents' Costs Thrown Away

1. Mr Rossi quite correctly argues that the costs the subject of this application are "trivial". Mr Rossi also suggests that because the council is a model litigant and he is a person "who is seeking to have a serious issue addressed arising out of an oversight in the determination under challenge that has a very adverse effect upon him and his property interest", the council should facilitate the overriding purpose contained in s 56 of Civil Procedure Act 2005 ("the CPA") and agree that the disputed costs, particularly at this early stage in the proceedings, should be costs in the cause.

1. The answer to this contention is that Mr Rossi could, and should, have agreed to pay the council's and Living Choice's costs thrown away occasioned by his various amendments of the pleadings. It is Mr Rossi's refusal to agree to the payment of costs that has necessitated this application with its attendant further legal expenditure.

1. The Court retains a general discretion under s 98 of the CPA to award costs, not on a punitive basis, but as compensation (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543). In the present case the evidence of Mr Winram makes it tolerably clear, in my view, that Mr Rossi was put on notice prior to the filing of his original points of claim that it was the JRPP that granted the development consent. This is not only apparent from the documents provided to Mr Rossi's legal representatives by way of informal access to the council's files, it was also expressly stated by the council in its letter to Mr Rossi dated 10 January 2012. It is not correct to say that the first time Mr Rossi became aware that the JRPP was the consent authority for the approval was upon receipt of the council's points of defence on 2 March 2012.

1. But, having said this, I accept that the council, by reason of the allegation concerning the imposition of C(3) was, and continues to be, a necessary party to the proceedings. The pleadings concerning this issue have remained constant. The Council does not seek its costs in respect of this allegation, and nor could it.

1. In my opinion, an appropriate exercise of the Court's discretion to award costs is to order Mr Rossi to pay the costs thrown away by the first and second respondents occasioned by his amendments to the points of claim.

1. There is, however, absolutely no basis whatsoever that has been demonstrated for these costs to be paid on an indemnity basis.

1. In relation to the costs of the notice of motion dated 27 March 2012, again, to the extent that legal expense was incurred in meeting the orders that were not pressed by Mr Rossi on 27 April 2012, it is appropriate, if not axiomatic, that Mr Rossi, having determined not to pursue orders 1, 2, 3 and 5 in the motion, should also bear the first and second respondents' costs in this regard.

Mr Rossi Seeks Leave to Rely Upon Expert Evidence

1. By notice of motion filed 3 May 2012, Mr Rossi seeks to rely on the expert evidence of Mr Charles Hill, a town planner, Mr Vince Betro, an engineer and Mr Glenn Beasley, a registered surveyor. Mr Rossi tendered in support of his application letters from each of the experts stating the nature of the evidence each expert expected to give.

1. Pursuant to r 31.19 of the Uniform Civil Procedure Rules 2005 ("the UCPR"), a party seeking to call expert evidence must promptly seek directions from the Court in this regard. The rule relevantly provides 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) to 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.

1. Rule 31.19 of the UCPR applies to all civil proceedings filed in this Court. Its purpose is "to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings" (r 31.17(b) of the UCPR). In exercising its discretion under r 31.19 the Court must have regard to the matters contained in ss 56-60 of the CPA.

1. Typically, any determination of leave is to be grounded in the pleadings. If the pleadings do not disclose a reasonable need for expert evidence, leave ought to be refused.

1. The amended points of claim filed 3 May 2012, in summary, allege the following:

(a) that the council failed to notify Mr Rossi of the determination of the DA by the JRPP;

(b) that in determining the DA, the JRPP did not consider or assess the impact of the depth, placement and method of retention of the fill deposited along the common boundary on the environment, in breach of s 79C of the EPAA;

(c) that condition C(3) was unlawfully added to the consent by the council;

(d) that bulk earthworks had been undertaken upon the Living Choice Land by Living Choice that substantially interfered with Mr Rossi's amenity;

(e) that the JRPP did not, as it was obliged to, consider the proposed method of retention of any fill on the Living Choice Land and the impact of any retaining structures upon the amenity of Mr Rossi;

(f) that the JRPP did not, as it was obliged to, consider the loss of privacy caused to Mr Rossi by the development;

(g) that the JRPP did not, as it was obliged to, consider whether any conditions should have been imposed on the grant of the development consent to ameliorate the environmental impacts of the fill and whether such conditions were reasonable in all the circumstances;

(h) in the alternative, that, in making the determination to approve the DA, the JRPP deferred an essential consideration that constituted a central aspect of the consent; and

(i) that the JRPP acted in an irrational or arbitrary manner in making its decision to approve the DA and that this did not, therefore, constitute a valid exercise of statutory power.

1. The relief claimed is the same as that requested in the original points of claim, except that additional orders are sought to the following effect:

3. Orders requiring that:

(a) The fill be removed from the Living Choice land from the area adjacent to the common boundary for a distance of 50 metres;

(b) Buildings erected on the fill in the area descried in (a) above including timber piles, retaining walls and related infrastructure be demolished forthwith.

1. Drawing upon three letters received from each of the proposed experts, Mr Rossi submits that Mr Hill is required because, according to Mr Hill's review of the documents relating to the grant of the development consent "and the issuing of the construction certificate(s)", there are numerous inconsistencies between the development consent, the construction certificates and the work that has been carried out.

1. Notwithstanding that there are no allegations concerning the construction certificates made in the pleadings and that there is no claim that the works being carried out are not authorised pursuant to the consent, Mr Hill proposes to explain the nature and extent of these inconsistencies in an expert report. The difficulties with adducing this evidence are therefore obvious.

1. Mr Betro states that the detail, and in some instances the absence of detail, in the DA and construction drawings cannot be understood or interpreted by a lay person and hence expert evidence is required. According to Mr Betro, Australian Standards apply to the preparation of drawings and "only an expert and can truly say whether particular drawings are adequate, complete or even what they show and fail to show with accuracy and reliability". From the drawings Mr Betro has reviewed, there are a number of deficiencies identified in the DA supporting material, particularly in relation to the method of retaining the fill on the common boundary, that require explanation that only an expert can provide. With respect to Mr Betro, this ignores the specialist expertise of this Court.

1. Finally, Mr Gardener states that he has prepared a number of survey plans both in respect of the pre-development state of the Living Choice Land and the state of the Land as the works are progressing, and that further survey plans are proposed to be drawn up that will accurately identify levels and features of the fill in accordance with standard industry survey practice to enable the Court to make appropriate factual findings with accuracy. What these findings were likely to be and how they related to the pleadings was not explained.

Leave is Refused to Adduce the Proposed Expert Evidence

1. In DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156 Craig J summarised the legal principles applicable to a grant of leave to adduce expert evidence in judicial review proceedings commenced in Class 4 of this Court's jurisdiction (at [8]-[9]):

8.The Court of Appeal has recently had occasion to consider UCPR 31.19. In Shellharbour City Council v Minister for Planning [2011] NSWCA 195 Giles JA said (at [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."

His Honour's observations made clear that relevance and admissibility alone will be insufficient. When exercising the discretion available under the rule, it is necessary to determine whether the evidence is "reasonably required" in order to ensure the just, quick and cheap disposition of the real issues in dispute.

9.It is well established that the scope for admissible expert evidence in judicial review proceedings is very confined. Indeed, the scope for evidence that was not before the decision maker is limited: (Attorney-General for the Northern Territory 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] - [38]; ULV Pty Ltd v Scott (1990) 19 NSWLR 190; Woolworths Ltd v Wyong Shire Council [2005] NSWLEC 400). While it is accepted that evidence may be adduced in such proceedings of material available to the decision maker had appropriate enquiry been made (Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155), such an enquiry is not sought to be the subject of expert evidence to be adduced in this matter, assuming that such evidence could ever properly be the subject of expert material.

1. In Shellharbour City Council v Minister for Planning [2011] NSWCA 195 the Court of Appeal held that the trial judge had correctly taken the view "that a substantial contest of experts would be a waste of time and money, having regard to her assessment of the unlikelihood that it could be of assistance" (at [29] per Hodgson JA).

1. Generally in judicial review proceedings, only the material that was before the decision-maker at the time the decision was made is relevant. This is because judicial review examines the lawfulness of the decision and not its merits. While there are a number of limited exceptions to this general principle, depending on the circumstances of the case and the challenges made to the decision under review (see DEXUS (at [9]); Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division) [2011] NSWLEC 191 (at [69]-[76]) and INL Group Ltd v Director-General, New South Wales Department of Planning [2011] NSWLEC 256 (at [31]-[32])), none are applicable here.

1. In DEXUS a declaration of invalidity was sought in relation to the granting of a development consent for the construction of a new shopping centre by Blacktown City Council. Four grounds upon which the decision of the Council was claimed to have miscarried were pleaded. First, that the Council failed to give any proper consideration to parking and traffic impacts upon local roads and traffic signal-controlled intersections in the vicinity of the proposed development. Second, that a deferred commencement condition was said to be lacking in finality and certainty in a number of nominated matters. Third, that the Council failed to give any proper consideration to matters concerning contamination of part of the land the subject of the consent. And fourth, that the grant of development consent was manifestly unreasonable.

1. These grounds are analogous to the grounds of review pleaded in the present case.

1. In refusing to grant leave Craig J opined as follows (at [13]):

13 In considering these matters, the task of this Court when determining the proceedings will be to assess the information that was before the Council in order to determine whether it has failed to consider the matters pleaded in paragraph 14 of the points of claim. Expert evidence directed to the sufficiency of that information or whether the Council failed to consider matters or was satisfied as to matters about which it was required to be satisfied are all issues of fact in respect of which expert evidence would not appear to be admissible.

1. In my opinion his Honour's comments are directly applicable to the present application. I respectfully adopt and apply them.

1. Craig J went on to reason that (at [17]-[22]):

17 Observations similar to those made in respect of the proposal to call a contaminated land expert apply with equal force to the directions sought to call a traffic expert. DEXUS has pleaded the manner in which there was a failure to consider relevant considerations in relation to traffic and parking matters. Documents before the Council or available to it at the time of making its decision must surely be the basis upon which the Court will determine whether relevant matters were considered. Assuming, as I am told was the case, that there was expert evidence available to the Council a the time of making its decision, the calling of expert evidence to express a different opinion would not be evidence relevant to be considered in judicial review proceedings.

18 It was suggested on behalf of DEXUS that "various factual matters" upon which it seeks to rely "can only be identified with the assistance of expert witnesses". That statement does not appear to support, on a ground relevant to the present proceedings, the basis upon which evidence should be adduced. If the role of the intended experts is to identify "factual matters" then that expert is in no better position to do so than is the Court.

19 The prospect that the evidence sought to be adduced by DEXUS will impermissibly slide into merit review is exemplified by the manner in which its written submissions identify the "relevant factual matters" that it seeks to have addressed. I do not recite all of them but nomination of three of them will exemplify the proposition. They are:

"(i) the identification of matters which should have been considered by Council in respect to traffic;

(ii) the identification of impacts which should have been considered in respect to such matters

...

(vii) in particular the impacts which should have been assessed as to the likely impact of traffic control signals at the changed eastern access to the site in respect to ... " (Emphasis added)

20 In similar vein, the "relevant factual matters" required from the land contamination expert identified propositions of which the first is an appropriate example:

"(i) that the information before Council at the time it determined the application was insufficient to enable it to conclude whether and to what extent the land is contaminated"

21 All of these matters of "fact" ought not, for the purpose of judicial review, require expert evidence. Rather, at least as they are framed both in the letter of particulars provided by DEXUS and articulated in the written submission, they are matters that are capable of being argued on the basis of the material provided to or available to the Council at the time of its determination.

22 I do not overlook the claim made by DEXUS alleging that the Council's decision was manifestly unreasonable. However, as this claim is pleaded simply by reference to the traffic and contaminated land issues said not to have been considered by the Council, it does not appear to me to be a ground that gives rise to an independent basis upon which to direct expert evidence.

1. Again his Honour's reasoning is apposite. In this case, there is clearly a risk that the particular expert evidence that Mr Rossi seeks to adduce will slide impermissibly into merits review. This is illustrated by the manner in which the orders sought in the notice of motion identify the relevant considerations that ought to have been taken into account by the JRPP and the council in determining the DA. For example, the evidence of Mr Hill is sought to demonstrate (emphasis added):

1.When determining the development application, what the JRPP as the decision maker and the Council as the consent authority ought to have taken into consideration of relevance to the development the subject of the development application...

1. Similarly, Mr Betro's evidence is allegedly required to show (emphasis added):

6.What engineering issues arise... that ought to have been considered in the determination of the development application by the decision maker and consent authority.

7.Whether the decision maker failed to take into account the matters that it ought to have given the extent of land-filling approved by the Development Consent.

1. Although these alleged discrepancies between what was and what "ought to have been" considered may provide a foundation for arguing that the documentation that was put before the JRPP was inadequate, this does not, as presently pleaded, properly sound in an action for judicial review. First, the claims by Mr Betro are not anchored to any identifiable statutory contravention. Second, the omissions are matters that are capable of being argued on the basis of the material that was before the JRPP at the time it made its decision. That is to say, either the JRPP had, assuming it was relevant, the material before it and failed to consider it, or it did not have material that it was obliged to consider. Either way, it is the statute that is the objective touchstone of what material the JRPP should have taken into account, not the subjective views of Mr Betro.

1. Mr Rossi submitted that Mr Hill is required to give evidence regarding:

(a)what environmental planning instruments applied to the development application and in what respects;

(b)what development control plan/s applied to the development application and in what respects;

......

(h)whether and if so in what respects the development has been carried out otherwise than in accordance with the development consent.

1. Not only are these matters not the subject of any allegations in the pleadings, they are matters that, with respect to Mr Hill, the Court is best placed to determine because they require the interpretation, construction and application of environmental planning instruments.

1. The evidence of Mr Beasley concerns "identifying by accurate survey the work that has been carried out since the grant of development consent" in order to determine the volume and placement of cut and fill along the common boundary. But the determination of these facts is not relevant to the validity of the development consent as pleaded.

1. As the recitation of the claims pleaded against the respondents demonstrates, the proposed expert evidence cannot assist the Court. The matters pleaded require an objective assessment as to whether or not the alleged breaches have occurred. The subjective views of the putative experts are irrelevant. These are judicial, and not merits, review proceedings.

1. If, as is submitted, there has been a failure by the JRPP to consider matters concerning the fill in the approval of the development application, this will be, as I discussed above, manifested by recourse to the material before the JRPP. To reiterate, stated above, either the JRPP has considered, or properly considered, these matters, assuming Mr Rossi is able to demonstrate as a matter of law that they are required to be taken into account pursuant to the EPAA or some other statutory instrument, in which case Mr Rossi will fail; or the JRPP has not, in which case Mr Rossi will almost certainly succeed.

1. Mr Rossi further submitted that the expert evidence was directly relevant to the exercise of discretionary relief, in particular the claim for demolition and removal of the fill from the common boundary.

1. Assuming Mr Rossi is successful in obtaining a declaration that the development consent is invalid, it is possible that expert evidence will, at this point, become necessary to the question of the appropriate relief to be granted.

1. However, having regard to the overriding purpose contained in s 56 of the CPA, as informed by the principles contained in ss 57-60 of that Act, it would be neither "quick, just" nor "cheap", to put the respondents to the cost and inconvenience of adducing expert evidence of the type foreshadowed by Mr Rossi at this stage of the proceedings in order to meet a claim for relief that may never eventuate. If Mr Rossi is ultimately successful in his quest for invalidity, then the issue of relief on the question of discretion can be determined at this stage.

Conclusion

1. In summary, as his claim is currently pleaded, the expert evidence proposed to be relied upon by Mr Rossi is not reasonably required to resolve the central issue of the validity of the consent as pleaded. Leave is therefore refused.

1. Having said this, it is conceivable that, once defences have been filed and the material of the respondents has been examined by Mr Rossi, it may become apparent that expert evidence is necessary to prosecute his claim. There is nothing precluding Mr Rossi from making a further application to adduce expert evidence at a later stage should it be necessary.

1. Because Mr Rossi has failed in his application to seek leave to adduce expert evidence, he must pay the costs of his application. However, as the second respondents did not participate in this application, these costs are limited to those of the first respondent.

Orders

1. In addition to the orders made in respect of the two motions determined above, it is appropriate that further orders are made to prepare the matter for hearing.

1. The formal orders of the Court are therefore as follows:

(1) the applicant is pay the costs thrown away of the first and second respondent occasioned by his amendments to the points of claim;

(2) the applicant is to pay the costs of the first and second respondents of his motion dated 27 March 2012;

(3) the applicant is to pay the first respondent's costs of his motion dated 3 May 2012 seeking leave to adduce expert evidence;

(4)the applicant is to serve a response to the first respondent's request for particulars, dated 10 May 2012, by 18 May 2012;

(5) the applicant is to serve a draft index to its proposed bundle of documents by 18 May 2012;

(6) the applicant is to file and serve an amended summons that is in conformity with the amended points of claim by 18 May 2012;

(7) the respondents are to file and serve their respective points of defence to the amended points of claim by Friday, 25 May 2012;

(8) the directions regarding the filing and service of evidence in the proceedings made on 27 April 2012 are vacated;

(9) the applicant is to file and serve any additional evidence on which he intends to rely by 30 May 2012;

(10) the parties are to confer and the applicant is to prepare a bundle of documents on which the parties seek to rely. The bundle is to include a table of contents and be paginated. The bundle is not to include documents annexed or exhibited to an affidavit unless there are good reasons for it to do so. Unnecessary copying and duplication of documents is to be avoided. Any party objecting to the tender of a document within the bundle is to notify the other party of the objection(s) and the grounds in support at least three working days before the bundle is to be filed. The documents subject to objection are to be included in the bundle, but the objection(s) and grounds in support, as well as the party tendering the document and the party objecting to the tender, are to be noted in the table of contents to the bundle. The bundle is to be filed by the parties by 1 June 2012;

(11) the respondents are to file and serve any evidence on which they intend to rely by 13 June 2012;

(12) the applicant is to file and serve evidence in reply by 20 June 2012;

(13) leave is granted to approach the Registrar forthwith to obtain hearing dates for the hearing of order 1 of the applicant's claim for relief, with an estimate of 2 days and not prior to 9 July 2012;

(14) if any witness is required for cross-examination, notice is to be given at least seven days before the hearing;

(15) a party who proposes to object to any part of an affidavit is to file and serve a notice of its objections, including the grounds in support, at least 7 days before the hearing;

(16) by 4.00pm 14 days before the hearing the applicant is to cause to be delivered to the trial judge and served;

(a) an outline of submissions and a list of agreed issues for determination at the trial;

(b) a list of authorities;

(c) an agreed chronology of relevant events (if needed);

(d) where the number of persons who feature warrants it, an agreed list of relevant characters; and

(e) a list of affidavits, statements and reports to be relied upon at the hearing setting out:

(i) in alphabetical order, the name of the deponent or maker;

(ii) the date; and

(iii) the role of the deponent or the maker.

(17) by 4.00pm 7 days before the hearing the respondents are to cause to be delivered to the trial judge and serve:

(a) an outline of submissions;

(b) a list of authorities;

(c) a list of affidavits, statements and reports to be relied upon at the hearing setting out:

(i) in alphabetical order, the name of the deponent or maker;

(ii) the date; and

(iii) the role of the deponent or the maker.

(18) by 4.00pm 3 days before the hearing the applicant is to cause to be delivered to the trial judge and served an outline of submissions in reply;

(19) parties are to promptly notify the Court if there is any material slippage in the timetable; and

(20) the parties have liberty to restore on three working days' notice.

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Amendments

25 May 2012 - Amendment pursuant to slip rule

Amended paragraphs: 66

Decision last updated: 28 May 2012