Land and Environment Court New South Wales Medium Neutral Citation: Murray v Woollahra Municipal Council [2013] NSWLEC 40 Hearing dates: 28 March 2013 Decision date: 28 March 2013 Jurisdiction: Class 4 Before: Craig J Decision: Orders as set out at [24] Catchwords: PRACTICE AND PROCEDURE - notice to produce - Uniform Civil Procedure Rules 2005, r 21.10 - necessity for document to be relevant to a fact in issue - production of legal advices sought - proceedings challenge validity of development consent - Council interpretation of "height" in planning instrument challenged - Council's interpretation based on legal advice - determination of height jurisdictional - advice received by Council not relevant to a fact in issue - motion dismissed Legislation Cited: Environmental Planning and Assessment Act 1979 Evidence Act 1995 (NSW) Woollahra Local Environmental Plan 1995 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: John Murray (First Applicant) Wendy Murray (Second Applicant) Woollahra Municipal Council (First Respondent) Debra Ann Klein (Second Respondent) Representation: S Duggan SC with S Nash (Applicants) I J Hemmings (First Respondent) J E Robson SC (Second Respondent) Comino Prassas Solicitors (Applicants) Wilshire Webb Staunton Beattie Lawyers (First Respondent) Susan Hill & Associates Lawyers (Second Respondent) File Number(s): 41236 of 2012 ex tempore Judgment 1By a summons filed on 14 December 2012 John Murray and Wendy Murray sought orders declaring that, by reason of a breach of the Environmental Planning and Assessment Act 1979 (the EPA Act) by Woollahra Council (the Council), the development consent granted by it on 26 November 2012 for development of land at 61 Wentworth Road Vaucluse (the land) was invalid. The summons also sought an order restraining Debra Klein, the second respondent, from acting on that consent. Ms Klein is the owner of the land. 2By notice of motion filed on 12 March 2013, Mr and Mrs Murray seek an order that the Council produce to them the legal advices identified in a notice to produce served on the Council on the day upon which the summons instituting proceedings was filed in this Court. The Council has indicated in correspondence from its solicitors that the advices would not be produced for inspection by Mr and Mrs Murray on the basis that those advices reflect a confidential communication made between the Council and lawyers retained by it, the dominant purpose of those communications being the provision of legal advice to the Council (s 118 of the Evidence Act 1995 (NSW)). 3In April 2012 Ms Klein, through her architects, lodged a development application with the Council. The application sought consent to demolish the existing dwelling and garage on the land and to erect in its place a new dwelling with associated structures and site works. The development controls applicable to that application were, relevantly, the provisions of Woollahra Local Environmental Plan 1995 (the LEP). The height of any dwelling erected on the land was limited by cl 12 of the LEP. Any exceedence of that height was prohibited by the clause. The dwelling proposed for the land exceeded the height imposed by that control. 4Accompanying the development application was an objection made under State Environmental Planning Policy No 1 - Development Standards (SEPP 1). That objection contended that the application of the height control, as a development standard, was, in the circumstances of the case, unreasonable or unnecessary. 5Prior to determination of the development application, the plans were amended so as to reduce the height of the building. However, even in its amended form, the Council considered that the height of the building exceeded the maximum height stipulated in cl 12 of the LEP. It proceeded to determine the development application on that basis and, in the result, granted consent. In so doing, it exercised the discretion available to it under SEPP 1. 6The development application was the subject of a report to a meeting of the Development Control Committee of the Council on 19 November 2012. The report recommended that the objection under SEPP 1 be supported "as the minor non-compliance is considered to have no potential for significant amenity impacts upon adjoining properties or the public domain". The report also recommended that development consent be granted to the application on the conditions identified in that report. Apart from making the recommendation to grant consent and setting out the conditions upon which consent should be granted, the report of 19 November did not, itself, contain any discussion of the development application. 7However, attached to the report of 19 November was a report that had been prepared by a development officer of the Council on 23 October 2012. The latter report contained a detailed discussion of the development proposal. At page 8 the author set out the respective definitions of the word "height" and the expression "existing ground level" as contained in the LEP. The report also identified the effect of the LEP control limiting the height, in this case, to 9.5m whereas the height proposed by the application, as then understood by the Council, was 9.7m. 8After referring to the definitions to which I have referred, the report contained the following statement: "Recent legal advice has resulted in existing ground level being taken to be that which existed prior to the existing development of the subject site." Beyond that statement, no reference was otherwise made in the report of 23 October to that legal advice, nor is the legal advice attached to the report. 9On 12 November 2012, the Council had before it a report from its Manager of Development Control. That report was prepared for the Urban Planning Committee of the Council. It was a report recommending to that Committee that the Council prepare a planning proposal under s 55 of the EPA Act to amend the definition of both "height" and "existing ground level" as presently contained in the LEP. The report did not purport to relate to or address the development application for the land. 10In discussing the recommendation, the author of the report made reference to recent legal advice that had been obtained by the Council. That reference is contained in a number of paragraphs of the report. In the second paragraph the author said: "The interpretation of the height standard has been altered as a result of recent legal advice, which is not in itself disputed (for the purpose of this report we will refer to that as the 'new interpretation')". 11Later in the report under the heading of issues said to arise from the definition of "height" the author wrote: "Council recently received legal advice that, in the case of alterations and additions, the words " ... the surveyed level of the ground surface immediately prior to the proposed development and prior to any associated excavation, development or site works" operates in a manner requiring the measurement of height to exclude any associated development". (Original emphasis). The italicised section of the quote is from the definition of "existing ground level" in the LEP and not from the legal advice itself. 12After making further reference in section 2.4 of the report to the definitions being considered, the following conclusion is expressed: "In order to remedy the currently unsatisfactory situation it is recommended that Council prepare a planning proposal under the provisions of Section 55 of the Environmental Planning and Assessment Act 1979 to modify the definition of height and existing ground level in a manner which is consistent with those definitions contained in the Standard Instrument - Principal Local Environmental Plan." 13The report annexed two documents described as follows: "1. Confidential legal advice dated 3 May 2012 from Wilshire Webb Staunton Beattie. 2. Confidential memorandum of advice dated 3 May 2012 from John Ayling SC." 14It is those two advices provided to the Council that Mr and Mrs Murray now seek to have produced to them. They are so identified in the notice to produce served upon the Council. 15Apart from the summons, the only document thus far filed in the case identifying the nature of the case sought to be made are the applicants' points of claim. Without doing disservice to the manner in which those points of claim are framed, the essence of the case sought to be made seems to be this: (i)in order to empower the Council to grant consent it was necessary for the development application to comply with the height control imposed by cl 12 of the LEP; (ii)the only means by which the prohibition imposed by cl 12 could be overcome, if the development exceeded the height standard, was by the Council, as the consent authority, upholding an objection under SEPP 1; (iii)in order validly to uphold the objection, it was necessary that the Council correctly identify or calculate the extent of exceedence of the height control imposed; (iv)that calculation could only be made if the Council correctly interpreted the definition of "height" contained in the LEP; (v)the determination of "height" was a jurisdictional question to be determined by the Court in these proceedings; (vi)the Council did not correctly interpret the word "height" as defined in the LEP and therefore had not correctly directed itself in law to the exercise of the discretion which it purported to exercise under SEPP 1; (vii)the failure so to do meant that the exercise of power to grant development consent miscarried with the consequence that the consent was invalid. It is against that understanding of the applicant's case that the present motion must be determined. 16The notice to produce that was issued and served by Mr and Mrs Murray was founded in r 21.10 of the Uniform Civil Procedure Rules 2005 (UCPR). Relevantly, that rule entitled them to issue a notice to the Council requiring it to produce, for inspection by them, "any specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". The expression "relevant to a fact in issue" is defined in r 21.9 of the UCPR for the purpose of the Division which authorises the serving of a notice to produce. That definition requires that for a document to qualify as relevant to a fact in issue, it must be a document that "could or contains material that could, rationally affect the assessment of the probability of the existence of that fact". The "fact" last mentioned is the fact in issue. 17Whether a particular document meets the definition is ordinarily to be determined by reference to the issues that arise in the proceedings. Those issues, in turn, are ordinarily to be determined by pleadings. In the present case the only document which has the effect of a pleading are the points of claim to which I have referred. As the authorities make clear, one can extend the material available to determine whether a document is relevant to a fact in issue, within the meaning of the rule, by including in a case of the present kind the summons by which the proceedings were commenced. 18An examination of both the summons and the points of claim does not lead me to conclude that the advices that are sought to be produced qualify as a document relevant to a fact in issue. In the summary that I have given of the case sought to be made by Mr and Mrs Murray, it is for the Court to determine whether, on the proper meaning of "height" under the LEP, the development exceeded the height imposed by cl 12 of the LEP and if it did, the extent of exceedence in order to address the contention on behalf of the applicant that the exercise of discretion available to the Council, under SEPP 1, miscarried. 19I agree that the elements of the meaning of the word "height" in the LEP will have to be determined by the Court. Having made that determination, the Court will, by application of that meaning, determine the extent to which, if at all, the height was exceeded in order to address what might be called the second issue, namely whether the exercise of discretion under SEPP 1 miscarried. However, fundamental to the determination of the present motion is the proper meaning of "height". The summary I have endeavoured to give of the claim made by Mr and Mrs Murray, acknowledges, in terms, that the question of height is jurisdictional. That proposition is accepted by the respondents. 20It follows that, whatever opinion the Council may have formed as to height and whatever advice may have informed that opinion, be it legal or non-legal advice, can, on the case as presently advanced, have no relevance whatsoever to the determination which the Court will be required to make when addressing the applicants' case. The legal advices sought could not rationally affect the existence of a fact in issue. 21It follows that the notice to produce issued by Mr and Mrs Murray does not call for the production of any document that satisfies the requirements of r 21.10(1) of the UCPR. That determination renders it unnecessary for me to determine whether, if the advices sought were produced, the claim which the Council makes, loosely described as a claim for legal professional privilege, should be sustained. It is appropriate that I refrain from expressing any view upon that matter lest on a subsequent occasion that matter should arise directly for determination. 22In the result, the applicants' notice of motion must be dismissed. The Council seeks that its costs of the motion be paid by Mr and Mrs Murray. That application is not opposed by them. 23The parties have agreed upon directions that should now be made to have this matter prepared for hearing. The agreed directions will be incorporated in the orders I make. 24The orders that I make are therefore these: 1. The applicants' notice of motion filed on 12 March 2013 is dismissed. 2. The applicants are ordered to pay the Council's costs of that notice of motion. 3. Costs of the second respondent on the motion are reserved. 4. Vacate the directions hearing listed for 5 April 2013. 5. By consent I make the following directions: (i) applicant to answer the Second Respondent's request for particulars by 5 April 2013. (ii) respondents to file and serve points of defence by 12 April 2013. (iii) any application to rely upon expert evidence to be filed and served by 19 April 2013 and to be made returnable on 26 April 2013. (iv) applicant to serve a draft bundle of documents on the respondents by 19 April 2013. (v) stand over the proceedings for further call over on Friday 26 April 2013 before the List Judge. ********** 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. Decision last updated: 04 April 2013