Architect Marshall Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 756

Land and Environment Court of New South Wales

CITATION : Architect Marshall Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 756 PARTIES : Architect Marshall Pty Ltd (Appl) Lake Macquarie City Council (Resp) FILE NUMBER(S) : 10663 of 2004 CORAM: McClellan CJ Evidence :- Expert evidence KEY ISSUES: Whether a court is bound by procedural fairness COSTS: Fair and reasonable costs LEGISLATION CITED: FGT Custodians Pty Limited (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 CASES CITED: DATES OF HEARING: 30 November 2004 EX TEMPORE 11/30/2004 JUDGMENT DATE :

C H Shaw (Appl) Shaw Reynolds (Sol - Appl)

LEGAL REPRESENTATIVES: G Newport (Barrister - Resp) P Rees (Sol - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

TUESDAY 30 NOVEMBER 2004

10663/04 ARCHITECT MARSHALL PTY LTD v LAKE MACQUARIE CITY COUNCIL

JUDGMENT 1 HIS HONOUR: This matter comes before me this morning for further mention. The case involves an application for medium density development comprising ten units in Rathmines in the area of Lake Macquarie City Council. 2 As I understand the position, there has been a relatively recent change in the local environmental planning controls for the area which have given rise to the opportunity for medium density development. That opportunity is seen by many local people to conflict with the special nature of Rathmines which has both an architectural and social history extending back over many years. 3 Once the issues in the matter had been identified, the Court appointed Mr Terence Byrnes to assist by giving evidence in relation to planning aspects of the matter. In the course of Mr Byrnes preparing his report, a complaint is made that he spoke with representatives of the applicant without first informing the Council representatives that he proposed to do so and had discussions with them which have resulted in the bringing forward of amended plans. A complaint is made that Mr Byrnes thereby breached obligations which fall upon a court expert to afford procedural fairness and accordingly, a motion has been brought seeking that he be removed as a court expert. 4 Although pressing that motion, counsel for the Council has indicated that the Council proposes to retain another planner to give evidence in the proceedings. The Council will also challenge the views which Mr Byrnes has offered in his written report both by questioning and also by proffering views of another expert. 5 It seems to me that this is not a case in which it is necessary for the Court, certainly at this stage of the proceedings, to discuss the principles which might apply to a court expert in the preparation of his or her report. It may be, as suggested by Ormiston JA in FGT Custodians Pty Limited (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 at [14]-[15], that in circumstances where a court appointed expert is not challenged and his or her views may ultimately be the views adopted by the court, obligations reflecting the conventional procedural fairness doctrines, may be relevant. However, in circumstances where a challenge is to be brought, both in questioning and in the bringing of other expert evidence, it must be doubted whether there is any obligation in the expert to observe the requirements of procedural fairness. 6 With the Council having indicated that it proposes to take the course of bringing a challenge, in my opinion, the current motion should be dismissed. It will of course be a matter for the commissioner or judge who hears the class 1 matter to ensure that a fair hearing is given to both sides and that appropriate opportunities to challenge the evidence of any expert are provided. It will be a matter for that judge or commissioner to rule as to whether or not leave should be granted to allow the Council to bring additional expert evidence, but the circumstances of this case suggest that it would be appropriate. In this way, not only will a fair hearing be provided but also all of those, including the significant number of local people with an interest in the matter, can be assured that all relevant points of view have been ventilated and a sound decision made. 7 Accordingly, I dismiss the Council's motion. 8 The respondent seeks an order for costs in relation to the motion. I am of the opinion that no costs order should be made. The ventilation of the difficulties which the Council has identified have been of benefit in the management of the proceedings. Although the Council has failed, I do not consider that it was inappropriate for the difficulties to be raised so as at the very least the Council could identify to the applicant and the Court, the steps which it proposed to take to bring a challenge to Mr Byrnes' evidence. Accordingly, I make no order as to costs. **********