Land and Environment Court New South Wales Medium Neutral Citation: Landco (NSW) Pty Ltd v Camden Council [2017] NSWLEC 86 Hearing dates: 14 July 2017 Date of orders: 14 July 2017 Decision date: 19 July 2017 Jurisdiction: Class 1 Before: Robson J Decision: See orders at [2] Catchwords: DIRECTIONS – delay in preparation of joint expert report – whether one expert is entitled to affix amended plans to joint report – experts unable to agree on form and content of joint report – directions made requiring experts to complete their allocated task Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: John v Henderson (No 1) [2013] NSWSC 1435 Marinkovic v Rockdale City Council [2007] NSWLEC 71; (2007) 151 LGERA 385 Ruan v Cumberland Council [2016] NSWLEC 1565 Category: Procedural and other rulings Parties: Landco (NSW) Pty Ltd (Applicant) Camden Council (Respondent) Representation: Counsel: A Gadiel, solicitor (Applicant) C Novak (Respondent) Solicitors: Mills Oakley (Applicant) Swaab Attorneys (Respondent) File Number(s): 2017/00080132 Publication restriction: No REASONS 1. At 3:00pm on Friday, 14 July 2017 these proceedings came before me as Duty Judge. The parties' legal representatives had requested that the matter be listed before the Registrar on 14 July 2017 for directions and to explain the delay in the preparation of a town planning/urban design joint report that was to be filed and served by 7 July 2017. The matter was transferred to me as Duty Judge as the Class 1 hearing is to commence next Thursday 20 July 2017. 2. Mr Gadiel, solicitor, appeared for the applicant and Ms Novak, of counsel, appeared for the respondent, Camden Council ('Council'). Detailed documentary material was provided and oral submissions made. At the completion of the submissions, I indicated to the parties that due to the fact that the hearing was imminent and the nature of the dispute between the parties, which I will summarise below, I considered it appropriate to provide orders immediately (with some truncated reasons) and I indicated to the parties that I would provide short written reasons as soon as practical. The Orders I made (including two notes) were as follows: 1. The joint report of the town planning and urban design experts is to be filed and served by 5:00pm on 17 July 2017. 2. The joint report is to identify the matters upon which the experts agree and disagree, and the reasons for the agreement and disagreement. 3. The joint report is to be prepared and organised in accordance with the Land and Environment Court's Practice Note: Class 1 Development Appeals; Joint Expert Report Policy; and Conference of Expert Witnesses Policy. Notes: (a) To the extent that any expert engaged by a party is seeking to rely on amended plans for the purposes of an expert report, this is not indicative that that party will be able to rely on amended plans in the hearing. (b) The experts are to be informed that the joint report is not a vehicle to provide significant changes to plans that are presently before the Court, and that have previously been the subject of amendments. Background 1. The matter was listed for directions as a result of what was described as an "impasse" between two expert witnesses. The background facts are relatively uncontentious and may be summarised as follows. 2. The Class 1 application before the Court involves the consolidation of four lots, the erection of three two-storey buildings (each containing three attached dwellings), and associated strata title subdivision and site works at Newmarket Street, Currans Hill in the Local Government Area of Camden. 3. The issues between the parties are detailed in the Amended Statement of Facts and Contentions filed 5 June 2017 and relevantly relate to visual impact, residential amenity, design detail and over-development. In relation to urban design and town planning matters, Council has retained Mr Brett Newbold, town planner and urban designer; and the applicant has retained Mr Nigel Dickson, urban designer; and Mr John O'Grady, town planner. In accordance with the usual Court practice and directions of the Court, the experts have conferred amongst themselves and were to complete a joint report on or before 7 July 2017. As a result of disagreements between Mr Newbold and Mr Dickson in relation to the "format and content" of the joint report, the matter was listed urgently before the Registrar "…in order to explain delays to completion to the joint report". 4. I received evidence in relation to the background of the matter and correspondence passing between the experts (in particular, Mr Dickson and Mr Newbold and between the respective parties' solicitors). The essential disagreement between the experts and consequent delay arose because Mr Dickson who is also an architect, included in his draft contribution to the joint report, what Mr Newbold described as being "full sets of amended architectural and landscape plans", which were not included by Mr Newbold in the final version of the draft report. Mr Newbold was not prepared to consider the amended plans and this led Mr Dickson to claim that "a large component of my report …had been deleted and moved and the amended architectural drawings, which I was seeking to rely on, were deleted from reference …" 5. Despite there being various drafts of the joint report passing between the experts, the experts are not prepared to complete and sign a final report. 6. Therefore, the essential dispute relates to whether or not the joint reporting process has been thrown off course by Mr Dickson's inclusion of amended architectural drawings. 7. The respective positions may be summarised as follows. Council's position 1. Council submits that Mr Newbold should not be put in a position where he is faced with a "complete suite of new plans," in circumstances where he has formed his opinion based upon the plans presently before the Court (which themselves have been the subject of an earlier Court approved amendment). Further, it is not the intent nor within the purview of the Court's various practice directions and policies, which invite experts to attach "sketches" and the like to their reports so that their respective opinions are able to be properly articulated, to permit significantly amended plans to be attached to expert reports. Applicant's position 1. The applicant submits that Mr Dickson, who was the architect of the original plans (and the earlier amendments), is in a unique position to provide amended plans in greater detail than what would otherwise be communicated by way of mere "sketches" which are provided for in the practice directions. The applicant submits that the purpose and intention of the Class 1 Development Appeals Practice Note ('practice note') is to allow for experts to properly express their views without being burdened by external interference. Accordingly, the applicant submits that Mr Dickson is properly expressing his view, which requires consideration of his suggested further amendments to the plans. 2. My brief summary of the parties' positions is not an exhaustive reflection of the detailed submissions that were made, nor the material that was tendered, including Exhibit 1 (comprising various correspondence between the experts and the parties). 3. During the course of submissions Mr Gadiel took the Court carefully through the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR Rules'), the Land and Environment Court Conference of Expert Witnesses Policy, the Land and Environment Court of NSW Joint Expert Report Policy, the practice note, and the Short Minutes of Order made in these proceedings, as well as making reference to a number of decisions of this Court including Marinkovic v Rockdale City Council [2007] NSWLEC 71; (2007) 151 LGERA 385 at [22]; John v Henderson (No 1) [2013] NSWSC 1435 at [25]-[26]; and Ruan v Cumberland Council [2016] NSWLEC 1565 at [4], [34]-[36] and [45]. 4. Ms Novak distinguished a number of the cases referred to by the applicant and raised concerns about the unforeseen cost and time required should the amended plans need to be reviewed by Mr Newbold. In summary, Council submitted that even considering all relevant practice notes and policies, it is neither appropriate nor fair for the applicant to flourish, through the purview of the joint report process, a "full set of amended plans" which Council and its legal representatives had not seen. Consideration 1. I have reviewed the various policies and considered the decisions referred to, and have taken this material into account in forming my decision. 2. As I indicated to the parties, albeit in truncated form at the completion of submissions, in the light of the fact that neither of the parties (and their legal representatives) nor the Court, had, for understandable reasons, seen the plans that were the subject of the correspondence between the experts, I was unable to determine whether the so-called "full set of amended plans" contemplated significant amendments to the plans which were otherwise properly before the Court in the Class 1 hearing which, as noted above, commences next Thursday, 20 July 2017. In those circumstances, I was unable to form any view as to the nature and extent of the amendments and whether they would be appropriate amendments to the plans presently before the Court or whether they, quite possibly, amounted to a new development application. 3. In the circumstances, it was my view that the experts should be directed to complete their allocated task in accordance with the Court's directions and that it be made clear to them that any attempt by the applicant (or its expert) to rely upon amended plans would require, depending upon the extent of the changes, an application to be made in accordance with the Court's rules and practices. If this application were made, Council (and any objectors) would then have the opportunity to consider any such amendments. Paragraphs 90 and 91 of the practice note provide appropriate detail as to what an applicant is required to do in relation to an application for leave to amend its appeal, which in the current circumstances, may require a Notice of Motion. 4. In making the orders I did, I was conscious, as raised with the parties, that the Court policy set out in the Land and Environment Court of NSW Conference of Expert Witnesses Policy provided, at [14], that "the experts should bring to their conference all notes, background material, reports, surveys, studies, photographs, montages or any other material to support their position on the matters to be discussed". Again, whilst this does not provide carte blanche to an expert to seek to raise matters which otherwise may necessitate a formal amendment, it should be kept in mind, as enshrined in [23] that "…If, for whatever reason, an expert is unable to reach agreement with the other experts on any matter, that expert should be free to express his or her disagreement with the other experts" and, as referred to, at [26] "…the experts should, within reason, discuss alternatives when addressing the matters in issue". Paragraph 26 also states that "Sketches providing alternative solutions …that address a particular issue are a legitimate part of such discussion …" 5. Whether amended plans are "sketches" for the purposes of the Court's practice notes and policies is not a matter that is able to be debated absent the plans. Accordingly, for the above reasons, I made the orders set out above at [2] and specifically noted the matters set out in "Notes (a) and (b)". ********** 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: 19 July 2017