Lo v Sutherland Shire Council [2024] NSWLEC 76

Land and Environment Court New South Wales

Medium Neutral Citation: Lo v Sutherland Shire Council [2024] NSWLEC 76 Hearing dates: 26 July 2024 Date of orders: 26 July 2024 Decision date: 26 July 2024 Jurisdiction: Class 1 Before: Pain J Decision: The Court orders: (1) The Applicant's notice of motion dated 9 July 2024 is dismissed. (2) Costs reserved. Catchwords: PROCEDURE – review of senior deputy registrar's decision to allow expert planning evidence dismissed – no error of law established – no procedural unfairness established Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.20, 49.19 Cases Cited: Malek v Woollahra Municipal Council (2017) 277 LGERA 401; [2017] NSWLEC 124 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Texts Cited: Practice Note Class 1 Residential Development Appeals Category: Principal judgment Parties: Michelle Lo (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: M Lo (Litigant in person, Applicant) J Amy (Solicitor advocate, Respondent)

Solicitors: N/A (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2024/54349-002

EX TEMPORE JUDGMENT 1. The Applicant Ms Lo has commenced Class 1 proceedings appealing the refusal by the Respondent Sutherland Shire Council (the Council) of a modification application (MA) of a dual occupancy and strata subdivision at a property in Menai for which development consent was granted on 23 September 1998. Ms Lo is representing herself in her appeal. 2. Ms Lo has filed a notice of motion dated 9 July 2024 appealing a decision of the Senior Deputy Registrar on 21 June 2024 allowing the Council to rely on a specified town planning expert in relation to its contention 1. Contention 1 identifies as an issue whether the MA is substantially the same as the 1998 development consent. The notice of motion dated 9 July 2024 seeks an order that the Senior Deputy Registrar's decision be discharged (meaning set aside) or alternatively that a single court appointed expert be ordered. 3. Part of Ms Lo's affidavit in support of the notice of motion dated 9 July 2024 was read attaching the correspondence between the parties. 4. An affidavit of Ms Amy solicitor for the Council dated 19 July 2024, except the second sentence in par 17(c), was read. It also attached much of the same correspondence. No transcript of the hearing before the Senior Deputy Registrar was in evidence as none was able to be supplied in time following an application for it being made by Ms Amy. Ms Amy attests to her recollection of the Senior Deputy Registrar's comments at par 16. The affidavit dated 19 July 2024 identifies a chronology of events leading up to the hearing before the Senior Deputy Registrar on 21 June 2024. 5. The parties agreed before me that they made submissions to the Senior Deputy Registrar in support of their position on 21 June 2024. 6. The Class 1 appeal was commenced on 12 February 2024. By email dated 28 March 2024 (Ex 1) the Council's solicitor advised the Applicant of the capacity to adduce expert evidence and provided information about the Court's processes in relation to expert evidence. This is consistent with par 21(c) of Practice Note Class 1 Residential Development Appeals which requires that matters of expert evidence be generally dealt with at the first callover. The Council filed its Statement of Facts and Contentions (SOFAC) on 28 March 2024 and the Applicant's SOFAC in reply was filed on 13 May 2024. The Council raised at the first callover on 2 April 2024 that it wished to rely on expert evidence. The Senior Deputy Registrar did not make such an order and adjourned the issue of expert evidence to an online directions hearing on 17 May 2024. The matter was set down for hearing on 2-3 September 2024. The Council flagged that it wished to rely on expert evidence in online court communications on 16 May 2024 in responding to the Applicant's request for an adjournment of the 17 May 2024 directions hearing. The matter was stood over to 21 June 2024, the Senior Deputy Registrar noting the issue of expert evidence would be dealt with on the next occasion. The Council sought leave to rely on expert evidence of its town planner at the further directions hearing on 21 June 2024, the Council's application to rely on expert evidence being provided for under r 31.19 and r 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The Senior Deputy Registrar made orders on 21 June 2024 as follows: The Court orders that: 1. The Applicant is to file and serve the modification application documents (MA 22/0106) by 28 June 2024. 2. Under r 31.19 and r 31.20 of the Uniform Civil Procedure Rules 2005 the Respondent is granted leave to rely on expert evidence of Evan Phillips (Town Planner) in relation to contention 1 and is to prepare an individual report to be filed and served by 22 July 2024. 1. This order was amended on 4 July 2024 on the Council's application to change the name of the town planner to David Sheehan. Mr Sheehan has been substituted as he did not undertake the original assessment of the Applicant's MA and this was considered preferable in providing independent evidence to assist the Court. The Council wishes to use its town planner to save costs and time.