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June 2012 – Provision of experts reports to Objectors in Class 1 Appeal

The Land & Environment Court (“L&E Court”), in the case of Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 20, has considered whether an objector can be provided with a copy of experts reports filed in the proceedings. At the heart of the dispute is the role of objectors in Class 1 development appeals.

The Facts

The case concerned a merits appeal against the refusal by a Joint Regional Planning Panel of a development application for a mosque and community facilities. After the commencement of proceedings, the applicant was granted leave to significantly amend its development application (“DA”). The respondent council filed a notice of motion seeking permission to provide, prior to the hearing, copies of the expert reports concerning the amended DA filed in the proceedings, to resident objectors. There were over 1000 objections to the amended DA.

The Court had previously refused a notice of motion by a residents group (the Elermore Vale Community for Appropriate Residential and Environmental Strategies Incorporated) to be joined as a party to the proceedings so that, with the benefit of the access to all the expert evidence, it could pursue its objection.

The applicant submitted that disclosure of expert reports, which are not yet admitted into evidence, without leave of the Court, would breach the council’s implied undertaking to the Court not to use the reports otherwise than for the purposes of the proceedings. This is known as the ‘Harman principle’. The principle applies where documents are required to be disclosed under some compulsive process of the Court, for example, by a direction that affidavits or witness statements be served on the other party before the hearing.

It was not ultimately necessary for Biscoe J to decide whether the Harman principle applies to expert reports in class 1 proceedings but he proceeded on the basis that it did.

The Findings

In determining that leave should be granted, Biscoe J considered:

  • the object of the Environmental Planning & Assessment Act 1979 to provide opportunity for increased public involvement;
  • a person’s rights to inspect a DA when it is before a council for consideration and the right to be provided with information under the Government Information (Public Access) Act 2009, and that, in a merits appeal the Court stands in the shoes of the council;
  • that a document tendered in evidence at the hearing of an appeal is accessible by an objector;
  • the Court’s usual directions in class 1 development appeals provide for objectors to give evidence and for their submissions to be received;
  • access by objectors to expert reports would likely improve the efficient conduct of the hearing because it could eliminate false issues and save time and would enhance the confidence of objectors in the transparency of the appeal process.

Biscoe J also considered the Court’s Site Inspections Policy which requires councils to ensure that local residents have a full understanding of the proposal, including any amendments, so that any concerns expressed on-site are relevant. Arguably, this can only be done if residents have an opportunity to access and make submissions in relation to experts’ reports. This case has clarified that while a party is free to give copies of its own expert reports to whomever it wishes, leave of the Court may still be required before a council can provide an applicant’s report served in proceedings, to objectors.

Note: This information is not to be relied upon as legal advice.

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