Save Sydney's Koalas (South-West) Incorporated v Lendlease Communities (Figtree Hill) Pty Limited

[2020] NSWLEC 91

Land and Environment Court

New South Wales

Medium Neutral Citation:

Save Sydney’s Koalas (South-West) Incorporated v Lendlease Communities (Figtree Hill) Pty Limited [2020] NSWLEC 91

Hearing dates:

26 June 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Class 1

Before:

Moore J

Decision:

See orders at [12]

Catchwords:

EVIDENCE – application pursuant to s 192A of the Evidence Act 1995 to exclude or restrict the use of evidence – contest as to meaning of the undefined term “staging plan” in the relevant planning controls – whether expert planning evidence might assist the trial judge – matter appropriate to be left to the trial judge – application dismissed

Legislation Cited:

Evidence Act 1995, s 192A

Campbelltown Local Environmental Plan 2015, cll 6.3(2)(a) and 6.3(3)

Campbelltown (Sustainable City) Development Control Plan 2015

Cases Cited:

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

Category:

Procedural and other rulings

Parties:

Save Sydney’s Koalas (South-West) Incorporated (Applicant)
Lendlease Communities (Figtree Hill) Pty Limited (First Respondent)
Campbelltown City Council (Second Respondent)
Lendlease Communities (Figtree Hill No 3) Pty Limited (Third Respondent)
Mount Gilead Pty Limited (Fourth Respondent)

Representation:

Counsel:
Ms J Walker, barrister (Applicant)
Mr N Williams SC (First Respondent)

Solicitors:
Connor & Co (Applicant)
Addisons (First, Third and Fourth Respondents)
HWL Ebsworth (Second Respondent)

File Number(s):

403417 of 2019

Publication restriction:

No

Extemporaneous judgment

1. HIS HONOUR: The Notice of Motion that is presently before me seeks an anticipatory ruling pursuant to s 192A of the Evidence Act 1995 seeking the exclusion in the first proposition that the whole of the expert report of Ms Clare Brown, a town planner relied by the First Respondent in the proceedings, should not be admitted into evidence. The alternative to that proposition is that, if the first proposition is not accepted, there should be limitations placed on the admission of elements of Ms Brown's proposed evidence.

2. I have had read in these proceedings an affidavit of Ms Amanda Johnstone, solicitor for the Applicant, which appended a copy of Ms Brown's report. I have read that report in anticipation and it is now formally in evidence before me. Essentially, the nature of Ms Brown's evidence sought to be relied upon by the First Respondent goes to the question of the meaning, in the relevant context, of cll 6.3(2)(a) and 6.3(3) of the Campbelltown Local Environmental Plan 2015 (CLEP) and whether or not the Campbelltown (Sustainable City) Development Control Plan 2015 (the Development Control Plan) provides a staging plan that would satisfy the requirement contained in the CLEP.

3. In these proceedings, Ms Walker of counsel takes me to matters contained in Ms Brown's Statement of Evidence to put the proposition that the concept embodied by the term “staging plan” is, in the first instance for the purposes of seeking exclusion of the entirety of the proposed evidence, not a term about which an experienced judge of this Court would require assistance for the purposes of its interpretation.

4. Mr Williams SC, for the First Respondent, puts the propositions:

1. First, as I understood him, that the concept of “staging plan” is an undefined term anywhere in any relevant document which would be put before the trial judge; and

2. Second, that Ms Brown's evidence on that point, particularly matters that are contained in paragraphs 3.12, 3.13 and, potentially, 3.14 to 3.16 of her evidence are both admissible and relevant on that point.

5. Ms Walker relies, in the first instance, primarily on [28] of the decision of the Court of Appeal in Shellharbour City Council v Minister for Planning & Anor (2011) 189 LGERA 348, [2011] NSWCA 195. In my view, [27] to [29] of the leading judgment given by Hodgson JA in that matter are those that demonstrate to me that it is not appropriate for me to exclude the evidence at this point. It is an issue which should, quintessentially, await consideration by the trial judge.

6. Paragraph [27] of his Honour's judgment accepts the proposition that it was open to the trial judge in those proceedings to take the view that a contest between experts on the terms there arising for consideration was not likely to be of assistance to the trial judge in those circumstances.

7. In [28], particularly, his Honour accepted the submission that this Court is a specialist one but that that would not automatically justify the refusal of expert evidence if such evidence otherwise was such as to be relevant and significant to an issue in the case. His Honour made it clear, in [29], that the trial judge (my emphasis) could properly take 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 that evidence would be of assistance to her.

8. I am of the view that in these proceedings it is not established to my satisfaction at this time that the prospect of a contest between town planners on the use of the word "staging plan", in the context of the CLEP and what might be the content of the Development Control Plan to which I have referred, that I should conclude that it would be a waste of time and money for that evidence to be prepared, given the conclusion I have reached that Ms Brown's evidence is potentially admissible. Therefore, I do not accept the proposition that the exclusions should be made.

9. It is quite clear, in addition, that the matters that are contained in the elements of Ms Brown's report, to which the fallback position is put on behalf of the Applicant, are matters which go to the question of discretion. It is necessarily something that can only follow a finding that the first of the grounds in the Amended Summons has been established.

10. Questions of discretion are ones which, also quintessentially, only arise in the context of such a finding adverse to the First Respondent on the primary issue of what might constitute a staging plan and whether it was provided for by the terms of the Development Control Plan.

11. I therefore decline to make the alternative order excluding the answers given by Ms Brown to Questions 2 and 3. It therefore follows that the Notice of Motion is to be dismissed.

12. The orders therefore are:

1. The Notice of Motion is dismissed;

2. No exclusionary ruling is made pursuant to s 192A of the Evidence Act 1995 regarding the evidence of Ms Brown; and

3. Costs are reserved.

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Decision last updated: 16 July 2020