Land and Environment Court of New South Wales CITATION : Meck v Waverley Council [2005] NSWLEC 269 Boris and Philip Meck (Appls) PARTIES : Waverley Council (Resp) FILE NUMBER(S) : 11507 of 2004 CORAM: McClellan CJ KEY ISSUES: Practice and Procedure :- Whether once an expert is appointed by the Court parties can provide further written material for the expert to consider DATES OF HEARING: 20 April 2005 EX TEMPORE JUDGMENT DATE : 04/20/2005 M Carpenter (Appl) John Lloyd & Co (Sols - appl) LEGAL REPRESENTATIVES: A Hudson (Resp) Wiltshire Webb (Sols - resp) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES McCLELLAN J WEDNESDAY 20 APRIL 2005 11507/04 MECK v WAVERLEY COUNCIL JUDGMENT 1 HIS HONOUR: This matter comes before me this morning to resolve a dispute which has arisen in relation to the material which is appropriate to provide to the Court expert. 2 The appeal relates to an application to seek modification of a consent which has been granted for the construction of a dual occupancy. As I understand the position, the applicant provided the usual documents including a statement of environmental effects to the Council. The application was reported on by the Council's planning staff and recommended for refusal and the Council has refused the application. 3 The matter then came before the Court and a court expert town planner was appointed. The person appointed is Mr Robert Player who is a very experienced planner with undoubted capacity to analyse the attributes of this proposal. It is to that analysis that the Court will look for assistance in resolving whether or not the application should be approved. 4 Apparently, after the matter was referred to the court expert, the council planning staff prepared a further written document entitled "Council Submission to Joint Expert". As I understand the position, this document seeks to re-agitate matters raised in the report to the Council and expand upon those matters. It is a written document comprising, with annexures, a total of about twenty pages. 5 The applicant seeks directions which would exclude this document from consideration by Mr Player. The Council opposes that position. 6 The fact that the Council has found it necessary to prepare this written document is a matter of some concern. The expectation which the Court has when appointing an expert to assist in the resolution of a dispute is that the material which was provided to the Council by the applicant together with material provided to or generated within the Council for the purpose of considering the application will be the written material placed before the expert. If parties resort to preparing further complex written documents, plainly, the costs of litigating in this Court will be significantly increased. 7 Furthermore, if councils, with the resources available to them, were to take this course, inevitably it would lead to applicants seeking to respond with the consequence that the costs of litigation in modest matters could end up being out of proportion to the issues involved. 8 In the present case, the application relates to the modification of the existing consent for a modest two dwelling development. It is not difficult to see that if written documents multiply on both sides, the costs of resolving the dispute could seriously escalate. 9 The matter having come before the Court I propose to direct that the further submission prepared by the Council should not be provided to Mr Player and it is not necessary for him to consider it. If, after consideration of Mr Player's report in the matter, the Council believes that further expert material is necessary to resolve the dispute then an application for leave in accordance with the rules can be made. 10 However, the process of consideration of an appeal by a court expert should generally be confined to consideration of the material which has been provided to the Council by both the applicant and the expert. If this is done there is some prospect that the costs associated with these appeals can be kept to a minimum. ********** 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.