Land and Environment Court of New South Wales CITATION : Fast Buck$ and Terence Hamill v Dudley Pastoral Pty Limited and Byron Shire Council [2002] NSWLEC 100 APPLICANTS Fast Buck$ and Terence Hamill PARTIES : RESPONDENTS Dudley Pastoral Pty Limited and Byron Shire Council FILE NUMBER(S) : 40064 of 2000 CORAM: Cowdroy J KEY ISSUES: Judicial Review :- the Wednesbury principle - whether evidence relevant and admissible. LEGISLATION CITED: Evidence Act 1995 s 55 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135 ; CASES CITED: Hale and Ors v Parramatta City Council and Anor (1981-1982) 47 LGRA 269; Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 ; ULV Pty Ltd v Scott and Ors (1990) 19 NSWLR 190 (CA); Weal v Bathurst City Council and Anor (2000) 111 LGERA 181 (CA); DATES OF HEARING: 27/04/01 EX TEMPORE JUDGMENT DATE : 04/27/2001 APPLICANTS In Person SOLICITORS N/A 1st RESPONDENT Mr J B Maston (Barrister) LEGAL REPRESENTATIVES: SOLICITORS Wroth Wall 2nd RESPONDENT Mr K Webber SOLICITORS Wilshire Webb JUDGMENT: IN THE LAND AND MATTER No. 40064/00 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 27 April 2001 Fast Buck$ and Terence Hamill Applicants v Dudley Pastoral Pty Limited and Byron Shire Council Respondents JUDGMENT 1. By a second amended class 4 application the applicants seek a declaration that consent condition C6 has not been satisfied and that a consequential building permit is null and void. Condition C6 requires a report to be submitted from a suitably qualified person addressing the risk of land contamination due to past use of chemicals. The report is to be prepared in accordance with Australian and New Zealand Environment and Conservation Council ("ANZECC") and Environment Protection Authority ("EPA") guidelines and submitted for the approval of Council's Environmental Health Officer prior to the release of a building application. 2. The question for determination raised by the application is whether that condition has been satisfied. 3. The applicant seeks to rely upon an affidavit of Gregory Albert Alderson sworn 27 September 2000 which appends a report by Mr Alderson, an engineer or scientist, expressing his views of reports made by Tricend, engineers, which were submitted to Byron Shire Council ("the council") by the first respondent as required by condition C6. The thrust of the applicant's claim is that the reports prepared by Tricend were not prepared by a suitably qualified person and further that the methods adopted by the author were inadequate. Accordingly it is claimed that the Tricend reports could not satisfy condition C6. 4. The Court is required to consider the decision made by the council in approving the relevant development application. The limits of such inquiry have been clearly stated by the New South Wales Court of Appeal in ULV Pty Ltd v Scott and Ors (1990) 19 NSWLR 190, especially by Priestley J at 200 and also at 208. 5. In Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 Mason J (as he then was) said at 40-41:- "The limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation ." His Honour continued at 41 to explain the principle established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. It establishes that an administrative decision must be manifestly unreasonable before a Court can intervene to set it aside. That principle has been widely recognised and has been referred to more recently by the New South Wales Court of Appeal in Weal v Bathurst City Council and Anor (2000) 111 LGERA 181. At page 188 Giles JA said that the impugned decision "…must amount to an abuse of power (Attorney-General (NSW) v Quin at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290). See also Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31." 6. Such principle does not mean that there can be no examination of an impugned decision of an administrative body. A court is entitled to consider the decision making process. For example in Hale and Ors v Parramatta City Council and Anor (1981-1982) 47 LGRA 269 at 295 the Chief Judge, McClelland J, permitted evidence to be given by experts relating to the decision making process. McClelland J said:- "They gave evidence that in their opinions the material before the Council was not adequate to enable councillors to give proper consideration to the proposal." An appeal from His Honour's decision to the New South Wales Court of Appeal was dismissed. 7. More recently the High Court of Australia in Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135 considered whether appropriate matters had been taken into consideration for the purposes of s 32 of the Development Act 1993 of South Australia. After referring to numerous authorities, including Peko-Wallsend, the Court held at 155:- "Where the question is whether the tribunal acted within jurisdiction, it must be for the court to determine independently for itself whether that is the case." In this case it is appropriate for this Court to determine whether the council acted within jurisdiction without descending into the merits of the decision. 8. Section 55 of the Evidence Act 1995 permits evidence that is relevant in a proceeding to be adduced, being evidence that if accepted could rationally affect, directly or indirectly, the assessment of a probability of the existence of a fact in issue in the proceedings. The question is what does Mr Alderson's report attempt to do? 9. An examination of the report reveals that it is essentially the expression of an opinion of what Mr Alderson as an expert would have done had he been the one selected to undertake the investigations. In that respect the competing views of Mr Alderson with those of Tricend would appear to relate to merit. Such matters cannot be adduced in evidence. However, there are two paragraphs in Mr Alderson's report, namely paragraphs 4 and 10 that go to the critical matter of the decision of the council that condition C6 had been satisfied. 10. Paragraph 4 of the report states that the relevant EPA guidelines required a minimum of thirty-five sampling points to be obtained, whereas in fact the Tricend reports did not contain the stipulated number of samples. Since condition C6 specifically required that the report be prepared in accordance with the ANZECC and EPA guidelines the issue raised by paragraph 4 is relevant. 11. Secondly, paragraph 10 of the report states that the council has established guidelines for investigation of contaminated sites, and that the requirements of the guidelines were not satisfied. 12. The matters in paragraphs 4 and 10 are relevant and the Court admits the report annexed to the affidavit of Gregory Albert Alderson confined to those two paragraphs. To do otherwise would in the Court's opinion be completely contrary to legal principle which has been enunciated by the New South Wales Court of Appeal in very clear and unambiguous terms. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.