Fred Caterson Champions Inc trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council

THE COURT: On 4 September 2025, Fred Caterson Champions Inc commenced Class 4 proceedings by summons filed in the Land and Environment Court against the Hills Shire Council. The applicant is an incorporated association, the objective of which is to maintain full community access to the Fred Caterson Reserve in the Hills Shire, while also preserving its endangered ecological bushland, flora and fauna.

On 10 October 2025, the applicant filed an amended summons seeking relief that included the following:

The amended summons included the following ground:

On 31 October 2025, the applicant filed a notice of motion in the court below seeking an order that it be granted leave to rely upon the expert evidence of Dr Stephen Debus, owl biologist, pursuant to UCPR 31.19, which is in these terms:

The applicant sought to adduce this expert evidence on the basis that no assessment of the impact of light on the Sooty and Masked Owl species had been conducted and that neither the REF nor FFA had considered the BirdLife Australia records of Powerful Owl sitings or the site and surrounds as breeding habitat for the Powerful Owl (see Statement of Request for Expert Evidence at [7]).

Dr Debus’ report is dated 29 October 2025. Among other things, the report identifies the inquiries which Dr Debus says, if made, would have “produced information readily available to [the] Council as to the extent and location” of the core breeding territory of the Powerful Owl, “the extent and location of its foraging territory”, and would have enabled an “assessment of the impacts on those aspects of the environment by reason of the combination of tree removal and increased light spill”. Dr Debus refers to the information held by BirdLife Australia following the “completion of the Powerful Owl Project” in relation to the Powerful Owl's use of the reserve, including “mapping of sightings of the Powerful Owl in the reserve”, which information he says was not referred to in the REF, Addendum REF, or the accompanying reports.

The report also says that if the “appropriate” examination pursuant to s 5.5 of the EPA Act had been undertaken, it would have allowed the Council to undertake an holistic assessment of the impact of habitat alteration and disturbance on the Powerful Owl’s breeding habitat, nest sites and breeding success, as well as an assessment of the impingement of light spill into the core breeding territory and into foraging habitat in adjoining bushland downslope of the site.

The applicant identified the relevance of the expert evidence as going to Ground 3 of its amended summons (its “failure to inquire” case).

On 4 December 2025, Pritchard J dismissed the application for leave to rely upon Dr Debus’ report: see Fred Caterson Champions Inc. trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2025] NSWLEC 139. The applicant now seeks leave to appeal to this Court from her Honour’s refusal of that interlocutory application.

Section 5.5(1) of the Environmental Planning and Assessment Act 1979 provides as follows:

Her Honour dealt with the application to rely upon Dr Debus’ report in light of the terms of s 5.5(1) of the Act. Part of what she said in her judgment was as follows:

It is apparent from her Honour’s reasons that her refusal of the application for leave to adduce expert evidence was based on her conclusion that the report amounted to a “critique of the merits” of the assessment by Council’s experts (see [33] of the judgment). Her Honour (at [33]) had already accepted that, to the extent that a challenge is made that the decision-maker should, acting reasonably, have made some additional inquiries, then expert evidence as to what those inquiries should have been and what the outcome of those inquiries would have been might in some cases be admissible. Here, in circumstances where the applicant’s amended summons alleged a failure to examine and take into account “to the fullest extent possible” all matters affecting or likely to affect the environment, in its consideration whether to approve the Activity, the relevance of Dr Debus’ report as to what additional inquiries could (or should) have been made seems apparent, leaving aside for present purposes what Dr Debus considered as to the likely outcome had such inquiries been made (which might perhaps be seen as straying into the area of a merits review). To the extent that Dr Debus’ report addressed the question of what additional enquiries could (or should reasonably) have been made, it is difficult to see his evidence as amounting solely to a critique of the merits of the assessment by the Council’s experts (even though parts of the report may trespass into that area).

Her Honour’s decision was interlocutory and concerned a matter of practice and procedure. It dealt with the matters critical to her Honour’s conclusion: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [93]. The principles that apply to a grant of leave to appeal in those circumstances are well settled. In Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141, the Court said this:

In order to succeed on the application for leave to appeal, the applicant needs to establish that her Honour’s discretionary decision not to grant leave to rely upon Dr Debus’ report is attended by sufficient doubt to warrant its reconsideration on appeal: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

As noted already, s 5.5 of the Environmental Planning and Assessment Act requires an examination and taking into account “to the fullest extent possible” all matters affecting or likely to affect the environment by the decision in respect of the activity in question. Dr Debus’ report addresses squarely the further inquiries that he considers should have been made and the outcome he believes there would have been had those inquiries been made.

In our opinion, there is sufficient doubt as to the characterisation of Dr Debus’ report (as being in effect a critique of the merits) to bespeak error in the House v The King sense. While there is no issue of principle or question of general importance raised by the proposed appeal, it can be accepted that there is a public interest in the underlying proceedings (as evidenced by the fact that it is a community organisation bringing the application for judicial review of the decision by the Council to approve the development in relation to the Reserve). The refusal to permit the expert evidence to be adduced may well have a real impact on the ultimate determination of the judicial review application (such that the refusal is likely to cause prejudice or an injustice going beyond what is merely arguable, in the sense referred to in Jaycar Pty Ltd v Lombardo, as quoted in the passage set out at [13] above).

In those circumstances, we consider that the applicant has demonstrated a basis for the grant of leave in conformity with the established principles on which this Court could, or should, intervene. We do not, of course, express any opinion on the merits of the appeal itself, which will fall to be considered in due course.

The application for leave to appeal should therefore be granted with costs to be costs in the cause. We make the following orders: