Save Sydney’s Koalas (South-West) Incorporated v Lendlease Communities (Figtree Hill) Pty Limited [2020] NSWLEC 91

Save Sydney’s Koalas (South-West) Incorporated v Lendlease Communities (Figtree Hill) Pty Limited [2020] NSWLEC 91

The Court dismissed the Notice of Motion because it was not established at this stage that a contest between town planners on the meaning of "staging plan" in the CLEP and Development Control Plan context would be a waste of time and money, and Ms Brown's evidence was potentially admissible. The alternative proposed exclusions concerned matters of discretion that would only arise after a finding adverse to the First Respondent on the primary issue and should be left to the trial judge.

Jurisdiction
Australia
Judgment Date
26 June 2020
Procedural Posture
Class 1; Procedural and Other Ruling / Notice of Motion Seeking an Anticipatory Ruling Pursuant to S 192 a of the Evidence Act 1995 to Exclude or Restrict Expert Evidence
Outcome
Notice of Motion dismissed; no exclusionary ruling made; costs reserved.
Legal Topics
['exclusion or Restriction of Evidence' 'expert Planning Evidence' 'meaning of Undefined Planning Control Term "staging Plan"' 'campbelltown Local Environmental Plan 2015' 'campbelltown (sustainable City) Development Control Plan 2015']
['evidence' 'planning and Environment'] ['exclusion or Restriction of Evidence' 'expert Planning Evidence' 'meaning of Undefined Planning Control Term "staging Plan"' 'campbelltown Local Environmental Plan 2015' 'campbelltown (sustainable City) Development Control Plan 2015']

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Procedural Posture

Class 1; Procedural and Other Ruling / Notice of Motion Seeking an Anticipatory Ruling Pursuant to S 192 a of the Evidence Act 1995 to Exclude or Restrict Expert Evidence

Legal Issues

  1. 1 ['Whether the whole of the expert report of town planner Ms Clare Brown should be excluded from evidence under s 192A of the Evidence Act 1995.' "Whether limitations should be placed on the admission of elements of Ms Brown's proposed evidence, including answers to Questions 2 and 3." 'Whether expert planning evidence might assist the trial judge on the meaning of the undefined term "staging plan" in cll 6.3(2)(a) and 6.3(3) of the Campbelltown Local Environmental Plan 2015 and the Development Control Plan context.']

Ratio Decidendi

The Court dismissed the Notice of Motion because it was not established at this stage that a contest between town planners on the meaning of "staging plan" in the CLEP and Development Control Plan context would be a waste of time and money, and Ms Brown's evidence was potentially admissible. The alternative proposed exclusions concerned matters of discretion that would only arise after a finding adverse to the First Respondent on the primary issue and should be left to the trial judge.

Court Disposition

Notice of Motion dismissed; no exclusionary ruling made; costs reserved.

Orders

  • ['The Notice of Motion is dismissed;' 'No exclusionary ruling is made pursuant to s 192A of the Evidence Act 1995 regarding the evidence of Ms Brown;' 'Costs are reserved.']