Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 3)

[2011] NSWLEC 31

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 3) [2011] NSWLEC 31
Hearing dates:	4 March 2011
Decision date:	04 March 2011
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Procedural
Catchwords:	Evidence: whether town planning affidavit served late should be admitted into evidence - whether report relevant - whether consideration of affidavit by Court constitutes impermissible merits review in Class 4 proceedings - affidavit admitted into evidence.
Cases Cited:	Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 2), Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited [2010] NSWLEC 79; (2010) 176 LGERA 356 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [2011] NSWLEC 25
Category:	Procedural and other rulings
Parties:	Wollondilly Shire Council (Applicant) Foxman Environmental Development Services Pty Ltd (First Respondent) Phillip Foxman (Second Respondent) Botany Building Recyclers Pty Ltd (Third Respondent)
Representation:	Counsel: Mr T Howard (Applicant) Mr P Clay with Mr M Seymour (First, Second and Third Respondents) Solicitors: Hones La Hood (Applicant) Whittens Lawyers (First, Second, Third Respondent)
File Number(s):	40578 of 2010

Judgment

Introduction

1. This judgment contains my reasons, in an amplified form, for admitting the report of a town planner into evidence in these proceedings. The background to this judgment is contained in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd [2011] NSWLEC 25.

1. Wollondilly Shire Council ("the council") objects to the admission into evidence of an affidavit of Mr Andrew Darroch, a consultant town planner and the principal of Mersonn Pty Ltd, sworn 24 January 2011.

1. In December 2010 Mr Darroch prepared a development application ("the DA") in respect of the land the subject of these proceedings. The DA was lodged with the council. Attached to that DA was a Statement of Environmental Effects also dated December 2010 ("SEE").

1. The DA is to permit the respondents to remediate the imported fill on the land, remediate and restore the water courses and bushland areas and to complete the fire access trails including, compaction, cut and fill, battering, vegetation and landscaping, bush regeneration and weed eradication. The application also seeks to erect a dwelling with its attendant infrastructure and to carry out bushfire management works.

1. In the SEE, Mr Darroch opines that there are no significant environmental issues that would preclude consent been granted to the DA. In coming to these conclusions Mr Darroch has relied on:

(a) flora and fauna assessment prepared by Bushfire and Environmental Services Pty Ltd dated December 2008;

(b) a remedial action plan prepared by JBS Environmental Pty Ltd dated December 2010;

(c) an ecological review prepared by Elizabeth Ashby of Keystone Ecological, dated 3 December 2010;

(d) a geotechnical opinion dated 2 December 2010, prepared by Jeffery and Katauskas Pty Ltd;

(e) a bushfire hazard assessment report prepared by Building Code & Bushfire Hazard Solutions Pty Ltd dated 8 December 2010;

(f) a fluvial geomorphology and impact assessment prepared by Andrew Macleod of Strategic Environmental and Engineering Consulting Pty Ltd, dated 6 December 2010; and

(g) various aerial photographs, plans and surveys of the land requiring remediation

1. All of these reports were annexed to the affidavit. Most had been in the possession of the council on or about the date of their creation.

Chronology of the Filing and Service of the Affidavit

1. The affidavit was filed on 24 January 2011 and served on the council the next day. The filing and serving of the affidavit was late. According to orders by Craig J on 24 November 2010, the affidavit ought to have been served, assuming for present purposes that it constitutes the evidence in chief of the respondents, by 8 December 2010, in order to permit the council to obtain evidence in reply and if necessary, for the parties' respective town planning experts to confer and jointly report.

1. While complaint was made by the council about the lateness of the affidavit prior to it being served, no communication of any sort objecting to its late service passed from the council to the respondents after its service.

1. Further, when the matter came before Sheahan J on 16 February 2011 for a further directions hearing, the council indicated that it would object to expert evidence being lead "through the back door" by reason of the DA lodged in December 2010, but again no specific objection was made by it to the late service of Mr Darroch's evidence.

1. In fact, it was not until the night before the hearing was due to commence on 28 February 2011, that the council informed the respondents that it would be objecting to the admission of Mr Darroch's affidavit.

Submissions of the Parties

1. The council submitted that the affidavit should be rejected on four grounds:

(a) first, that it was prejudiced by reason of its late filing and service, the consequence of which was that no town planning evidence in reply had been commissioned;

(b) second, the evidence had only marginal relevance to the issue of the Court's discretion to grant the relief sought in the amended summons;

(c) third, that if admitted, the Court would be required to engage in an assessment of the contents of the DA and the SEE, which would amount to impermissible merits review in Class 4 of the Courts jurisdiction ( Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 2) , Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited [2010] NSWLEC 79; (2010) 176 LGERA 356 at [129]); and

(d) fourth, many of the reports appended and replied upon by Mr Darroch were reports from other experts who were in the process of conferring and producing joint reports. Accordingly, any opinion of Mr Darroch would need further refinement upon the conclusion of these joint reporting processes. To admit the report would, the council submitted, subvert the orderly process of obtaining expert evidence in this Court, particularly where there would be no joint conferencing of any town planners to assist the Court.

1. In reply, the respondents, tendered a letter dated 15 February 2011 from Hones La Hood Lawyers, the solicitors for the council, to Whittens Lawyers, the solicitors for the respondents, requesting that a number of experts be available at the hearing for the purposes of cross-examination, including Mr Darroch.

1. While accepting that the evidence of the town planner was late, the respondents nevertheless submitted that the council had had ample time prior to the commencement of the hearing for it to retain a town planner in response to the evidence of Mr Darroch. Moreover, and in any event, by reason of the council's silence in relation to Mr Darroch's late evidence, coupled with the letter of 15 February 2011 requesting his presence, they were misled into believing that the late service would not be an issue.

1. The respondents also submitted that the material was highly relevant to the issue of discretion, and furthermore, rejected the assertion that in having regard to the material attached to the affidavit, the Court would be required to engage in merits review. On the contrary, the respondents submitted that the evidence of Mr Darroch was no more than an expert report like any other filed in the proceedings, the opinions of which could be challenged in cross-examination.

Consideration

1. First, turning to the issue of prejudice, while the respondents ought to be chastised for the late service of Mr Darroch's evidence, the fact remains that at no time after the affidavit's service did the council put the respondents on notice that it was prejudiced as a consequence and would be objecting to its admission. In these circumstances, it was not unreasonable, in my view, for the respondents to assume no objection, at least on this basis, would be taken by the council. This assumption was, again not unreasonably in my view, reinforced by the letter dated 15 February, 2011 requesting Mr Darroch's presence for cross-examination.

1. The fact remains that the council had almost five weeks in which to engage and obtain town planning evidence in reply. Absent any submission or evidence from the council that this would have been an insufficient timeframe in which to obtain a report, the Court is not willing to infer that it could not have been completed in the intervening period.

1. Whether due to oversight or otherwise, the council ought to have put the respondents on notice that it would be objecting to the late service of Mr Darroch's evidence on the basis of prejudice. It did not do so.

1. Second, the Court has a broad discretion to grant relief in civil enforcement proceedings ( Ko-veda (No 2) at [96]). Because, as can be anticipated, the respondents ultimately will submit that alternate orders to those proposed in the amended summons should be made by the Court requiring something substantially less than the removal of all of the impugned fill from the land, the evidence contained in Mr Darroch's affidavit is, in my opinion, more than marginally relevant to the issue of discretion.

1. Third, I do not accept that in having regard to this evidence the Court will be engaging in merits review. By taking this material into account, the Court is neither being requested, nor required, to determine whether the DA ought to be approved, or even whether it would be approved. Rather, the Court, by having regard to Mr Darroch's evidence, is merely considering his opinions as expressed in the SEE as a factor relevant to the exercise of its discretion to grant the relief sought by the council. The Court's examination of the material contained in his affidavit does not rise any higher than this. While in Ko-veda (No 2) Pain J (at [129]) refused to consider a landscape vegetation plan because to do so would be to determine a merit matter in the course of Class 4 proceedings, when properly analysed this level of scrutiny is not necessary by the Court of the DA or SEE in the present hearing.

1. Fourth, while I accept that some of the conclusions that Mr Darroch has arrived at are based on expert material that may alter as a result of the ongoing process of joint conferencing and reporting by other experts, this is not a reason to refuse to admit his affidavit evidence. Rather, such a matter goes to the weight to be attributed to the evidence. Alternatively, it is a matter about which challenge may be made in cross-examination. In my view, there is no subversion of the Court processes in this regard.

1. Finally, to the extent that the receipt of the affidavit may, as foreshadowed by the respondents, necessitate an application for leave to adduce oral evidence from Mr Darroch, the Court can determine this application separately if and when it is made.

1. It follows that the affidavit is admitted into evidence.

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Decision last updated: 11 March 2011