20 HINDMARSH SQUARE PTY LTD v STATE PLANNING COMMISSION & ANOR [2026] SASC 72

Applicant: 20 HINDMARSH SQUARE PTY LTD Counsel: MR D BILLINGTON SC WITH MR J RODER - Solicitor: HWL EBSWORTH LAWYERS First Respondent and Interested Party: STATE PLANNING COMMISSION AND ATTORNEY- GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: MS A DOECKE KC WITH MS J CLARE - Solicitor: CROWN SOLICITOR (SA) Second Respondent: PULTENEY STREET STUDENT ACCOMMODATION PTY LTD Counsel: MR T BESANKO SC - Solicitor: HILDITCH LAWYERS Hearing Date/s: 01/04/2026 File No/s: CIV-26-000536 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. 20 HINDMARSH SQUARE PTY LTD v STATE PLANNING COMMISSION & ANOR [2026] SASC 72 Decision of the Honourable Justice Bochner 15 May 2026 ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - DISCOVERY AND INTERROGATORIES PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES The applicant has sought judicial review of a decision of the State Planning Commission (the first respondent) to grant planning consent to the second respondent for the construction of a 16-storey building for the purpose of student accommodation, which boundaries the applicant’s land, namely, the Pullman Adelaide Hotel. The decision to grant planning consent was exercised by the State Commission Assessment Panel (‘SCAP’), as a delegate of the first respondent under the Planning, Development and Infrastructure Act 2016 (SA) (‘the PDI Act’). The applicant argues that the first respondent, by its delegate has contravened its general duties under s 15 of the PDI Act by: denying the applicant an opportunity to communicate its concerns about the development application; considering the development in private; and failing to give reasons for its decision. The applicant has filed two interlocutory applications which are the subject of these reasons. In the first, the applicant seeks an order that the first respondent discover and produce all documents which are directly relevant to the issues arising in this action, and in particular, all notes made by any member of the SCAP. In the second, the applicant seeks leave to administer interrogatories to both respondents. Both the first and the second respondents oppose these applications. In regard to the first application, the applicant argues that it is fundamentally important in establishing its grounds of judicial review to understand the reasoning of individual SCAP members and the -- 1 of 25 -- materials before it (including “the notes” of individual members) in reaching the decision to grant planning consent. It argues that where the decision maker has not provided reasons for its decision, discovery is warranted. The first respondent opposes the application for discovery, primarily on the basis that the applicant has not demonstrated that the notes are relevant to or will assist in establishing any of the grounds of review, nor that the reasons for the SCAP’s decision can be inferred from the notes of individual members. In regard to the second application, the applicant argues that it is appropriate to require the respondents to answer interrogatories which might elicit evidence of some material of probative value in the proceeding and that it is in the interests of justice to allow interrogatories to be administered. The first respondent contends that interrogatories should not be allowed where the questions sought to be asked are speculative and amount to mere fishing. The second respondent also contends that leave should only be granted to the applicant to interrogate it if the applicant is able to demonstrate that it would suffer some unfairness if it is not permitted to do so, and that cross- examination by interrogatories should not be permitted. The second respondent says that the allegations relied on by the applicant in support of this application are clearly identified in the Statement of Fact, Issues and Contentions and are within the applicant’s own knowledge. Held, refusing the applications for discovery and leave to administer interrogatories: The principles to be applied when determining whether interrogatories should be allowed in a judicial review application are: • The state of mind of the decision maker will only rarely be relevant in an application for judicial review, unless a question arises as to whether the decision maker acted in good faith; in this instance, interrogatories on this topic may be relevant, depending on the circumstances of the case. • Interrogatories will not be allowed where they are underpinned by mere allegation or suspicion. If the case is one which falls into the category of that described by Brennan J in Bannerman, as one where a bare allegation is denied as a result of which the interrogator “seeks to interrogate the Chairman and ransack his documents in the hope of making a case” , then interrogatories should not be allowed. A mere allegation, not grounded in evidence or inference reasonably drawn from known facts or the pleadings, is generally not sufficient to justify an order allowing interrogatories. • Once the proposed interrogatories are shown to have the required evidential or other foundation, consideration should then be given to whether allowing them would further the object of the UCR; that is, whether they “facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings”. Orders: 1. The interlocutory application for discovery (FDN 15) is dismissed. 2. The interlocutory application for leave to administer interrogatories (FDN 21) is dismissed. Planning, Development and Infrastructure Act 2016 (SA) ss 15, 29(1)(a), 33, 34, 107(3)(b); Local and District Court Act 1926 [ceased] (SA) ss 25(1)(II)(c); Uniform Civil Rules 2020 (SA) ss 1.5, 117.5(1), 256.4(6), referred to. Pearce v Hall (1989) 52 SASR 568; Barber v The Nominal Defendant (1989) 153 LSJS 8; McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 812; Khabbaz & Anor v State Planning Commission & Ors [2022] SASC 11; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, applied. Sumitomo Life Realty v Grace Bros Holdings Ltd & Ors (1994) 83 LGERA 46, distinguished. YBF v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 1; Carmody v MacKellar (1996) 68 FCR 265; Moreland City Council v Minister for Planning (2014) 203 LGERA 152; Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCFC 327, discussed. Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190; Lester Land Holdings v DAC (2020) 243 LGERA 221, considered. -- 2 of 25 -- -- 3 of 25 -- -- 4 of 25 -- 20 HINDMARSH SQUARE PTY LTD v STATE PLANNING COMMISSION & ANOR [2026] SASC 72 Civil: Application BOCHNER J. Introduction 1 The applicant has sought judicial review of a decision of the State Planning Commission (the first respondent) to grant planning consent to DA 25009168 on 27 August 2025 (‘the decision’). The decision was made by the first respondent, by its delegate, the State Commission Assessment Panel (‘SCAP’). The decision granted planning consent to the second respondent to develop the land comprised in Certificate of Title Register book Volume 5354 Folio 53 and Volume 5374 Folio 824 (‘the development land’), of which the second respondent is the registered proprietor. 2 The applicant is the registered proprietor of the land comprised in Certificate of Title Register Book Volume 6049 Folio 724 and described in Community Plan 25916 Lot 1. The applicant also holds the majority of the lot entitlements created by the Community Plan, giving it effective control over the common property. I will refer to this as the “applicant’s land”. 3 The western boundary of the applicant’s land is the eastern boundary of the development land (‘the common boundary’). The building on the applicant’s land, the Pullman Adelaide Hotel, is a 16-storey building comprising of one basement level, one ground floor level and 15 levels above ground floor. The decision granted planning consent for a multilevel student accommodation building on the development land, which includes a 50m concrete wall located on the common boundary. 4 The SCAP is established under the Planning, Development and Infrastructure Act 2016 (SA) (‘the PDI Act’) pursuant to s 29(1)(a), as a relevant authority with respect to determining whether to grant planning consent under Division 2 of the PDI Act.1 5 The applicant says that the first respondent was obliged to accord it procedural fairness pursuant to s 107(3)(b), by allowing it to make representations about the proposed development. 6 The applicant further says that the first respondent, by its delegate, has contravened its general duties under s 15 of the PDI Act in addition to the Minister’s Code for Assessment Panel Members and the Code of Conduct for Accredited Professional Scheme – Version 1 by: 1 Planning, Development and Infrastructure Act 2016 (SA), s 30(3). -- 5 of 25 -- [2026] SASC 72 Bochner J 2 • denying the applicant an opportunity to communicate its concerns about the development application; • considering the development application in private; and • failing to give reasons for its decision. Interlocutory Applications 7 The applicant has filed two interlocutory applications which are the subject of these reasons. In the first, FDN 15, the applicant seeks an order that the first respondent discover and produce all documents which are directly relevant to the issues arising in this action and in particular, all notes made by any member of the SCAP, or any other staff member present for the meeting of the SCAP at which the decision was made. In the second, FDN 21, the applicant seeks leave to administer interrogatories to both respondents. The interrogatories are exhibited as Exhibits JAL-23 and JAL-24 to FDN 23. Both the first and the second respondents oppose these applications. The application for discovery The submissions 8 The applicant says that, fundamentally important to establishing its grounds of judicial review are knowledge and consideration of the materials that were actually considered by the SCAP. It is also important to understand the reasoning of individual SCAP members in reaching the decision to grant planning consent, and how each member behaved during the process, including during the period of time that the meeting was closed to the public. Only the SCAP itself has knowledge of the materials that were before it for consideration and the way in which those materials were considered and assessed. Only the SCAP has knowledge of the way that members behaved during the closed part of the meeting. The only way that the applicant can obtain this information is through discovery and interrogatories. The applicant has described the approach of the SCAP to its decision making as a “black box” approach, immune from scrutiny by the applicant. In making this submission, the applicant points to the facts that the SCAP did not provide reasons for its decision, it deliberated in private with the only records of that deliberation being those made by three of the members, and the first respondent, by abiding the event, has avoided addressing the issues raised by the applicant’s grounds of review. As a result, none of the parties will adduce evidence relating to the SCAP’s deliberations. The applicant only has knowledge of the materials that were attached to the SCAP’s agenda (referred to as the “Staff Report”); it has no knowledge of what other materials may have been before members. In addition, the only way that the applicant could adduce evidence of the members’ reasoning processes is by calling each one to give oral evidence. The applicant says that, if this is the case, then it will have significantly reduced prospects of proving its grounds of judicial review. -- 6 of 25 -- [2026] SASC 72 Bochner J 3 9 The applicant accepts that there is no automatic entitlement to discovery on an application for judicial review. It submits, however, that where the decision maker has not provided reasons for its decision, discovery is warranted, particularly where the legislation governing the conduct of the decision maker makes it clear that transparency, even-handedness and accountability on the part of the decision maker are important. In this regard, the applicant relies on the words of Beech-Jones J in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs,2 where he noted the lack of requirement for the Minister to give reasons for decisions, which might create a difficulty when seeking judicial review. He said: 3 That lacuna could be at least partly filled by the exercise of a court’s power, in an appropriate case, to require production of documents concerning such a decision and to allow interrogatories to be administered to those who made it… (footnotes omitted) 10 The applicant submits that there is no barrier in principle to allowing discovery on an application for judicial review. At the same time, it accepts that more than bare assertion or speculation is required before discovery should be allowed. 11 The applicant says that the purpose of the discovery application is to establish the materials that were actually before the SCAP during the decision making process. The first respondent has advised that no material was before the SCAP save for that specified in the agenda papers, and that three members made notes. As a result, the applicant’s application is confined to the notes made by those three members. I will refer to these documents as “the notes”. 12 The applicant notes that the interested party has submitted that, in determining whether the SCAP took into account a relevant consideration, the Court must consider all of the materials before the SCAP and the minutes of its meeting, as well as the professional expertise, skills and experience of the SCAP members. At the same time, the first respondent does not assert that the notes are irrelevant to the matters in dispute. Rather, the first respondent asserts that, as a collegiate decision making body, the reasons for the SCAP’s decision cannot be inferred from the notes of individual members. The applicant says that the notes are directly relevant to identifying the matters that the SCAP took into account (or failed to take into account), and the provisions of the Code against which the development was assessed. 13 The applicant says that the assessment of development applications is not a confidential process; rather, the decisions of the SCAP are public decisions where principles of transparency are championed by the legislation. While an application may contain confidential information, the process is not, itself, confidential. 2 (2024) 99 ALJR 1. 3 Ibid, [324]. -- 7 of 25 -- [2026] SASC 72 Bochner J 4 Discovery of the notes will narrow the issues in dispute and assist in the just and efficient resolution of the dispute. 14 The first respondent opposes the application for discovery, primarily on the basis that the applicant has not demonstrated that the notes are relevant to or will assist in establishing any of the grounds of review. It says that the subjective reasoning process of some (but not all) of the members of the SCAP will not be helpful in the hearing of the application, where the Court is required to assess the decision making process of a multi-member expert panel. 15 The first respondent says that, to succeed in the judicial review application, the applicant must demonstrate that the SCAP’s decision was tainted by errors of law or by jurisdictional error. It is not an avenue by which the applicant can challenge the merits of the decision. The decision of the SCAP was made by the five members who were present at the meeting, utilising their professional skills and expertise as part of a collective decision making process. 16 The first respondent submits that, when judicial review of this type of decision making process is sought, the Court must examine what was considered by the SCAP on a collegiate basis. While individual members will likely hold differing opinions on various aspects of a development, the result is a consensus following the discussion of the members. The subjective reasoning of individual members is not relevant when determining whether the SCAP took into account all mandatory relevant considerations and did not take into account irrelevant considerations. These matters must be determined on an objective basis. In making this submission, the first respondent relies on the words of Pearlman CJ in Hospital Action Group Association Inc v Hastings Municipal Council,4 where she said: 5 The challenger is required to establish the state of mind of a body of persons. Whilst the Court should not shirk from its duty to draw inferences as to that state of mind, it can only do so from objective evidence, which makes the task of the challenger a difficult one. 17 It is the first respondent’s position that the objective evidence is made up of the materials that were before the SCAP and does not extend to include notes made by individual members. As a result, the applicant is limited to drawing inferences from the material which was before the SCAP. 18 The first respondent accepts that, if it is in the interests of justice to do so, it is appropriate for the Court to make an order for discovery on an application for judicial review. In determining where the interests of justice lie, it says that the Court should be guided by the standard principles governing discovery. Discovery should only be ordered of directly relevant documents, that is, those documents that would tend to prove an issue on the pleadings. In addition, the Court should take into account factors such as the time and cost likely to be expended on 4 (1993) 80 LGERA 190. 5 Ibid, 195. -- 8 of 25 -- [2026] SASC 72 Bochner J 5 discovery, and how proportionate that is to the likely value of the discovery and the overall efficiency of the conduct of the litigation. 19 In making the submission that there was no basis for an order for discovery in this matter, the first respondent relied on the case of Carmody v MacKellar,6 where Merkel J said: 7 The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission (1979) 36 FLR 450, WA Pines Pty Ltd v Bannerman (1980) 41 D FLR 175 and Australian Securities Commission v Somerville (1994) 51 FCR 38: • the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision; • the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought; • if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise; • the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case; • if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made. 20 In particular, the first respondent says that the discovery application is directed toward ascertaining the subjective reasoning of individual members of the SCAP. The grounds of review to which they relate are speculative and supported by bare allegation. As a result, the application for discovery amounts to no more than a fishing expedition. The applicant has not filed any evidence which supports the grounds of review; in particular, there is no evidence to suggest that the members of the SCAP did not appropriately take into account all of the materials which were before them. 21 The first respondent submits that the documents that were before the SCAP (as set out in the agenda, which includes the Staff Report) are sufficient to allow the Court to determine the applicant’s application. The SCAP’s reasoning can be inferred from the materials before it. On this basis, the state of mind of individual members of the SCAP is not relevant. 22 The first respondent cautions that, if SCAP members were required to disclose their own subjective thoughts and deliberations, there is a risk that 6 (1996) 68 FCR 265. 7 Ibid, 280. -- 9 of 25 -- [2026] SASC 72 Bochner J 6 members would feel inhibited in the full and frank exchange of views during consideration of applications. Discovery should not be allowed on this basis. Consideration 23 In Hospital Action Group Association Inc v Hastings Municipal Council,8 Pearlman CJ said: 9 The challenger is required to establish the state of mind of a body of persons. Whilst the Court should not shirk from its duty to draw inferences as to that state of mind, it can only do so from objective evidence, which makes the task of the challenger a difficult one. What, then, are the matters from which the Court may draw appropriate inferences? It is not necessary for the Council to set out in writing every matter which it has taken into account: Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135 at 139 and Somerville v Dalby (at 429). Moreover, the adoption by the Council of a recommendation in a Council officer's report, which deals with s 90 matters, is sufficient, in the absence of evidence to the contrary, to give rise to an inference that Council took those s 90 matters into account: Parramatta City Council v Hale (at 346), Somerville v Dalby (at 429). Furthermore, the material from which the state of mind of the Council can be inferred is not limited to what occurred at the Council meeting, or the content of material actually or constructively before the Council in relation to the application the subject of the Council's decision. Councillors do not make decisions in a vacuum; they have local knowledge and general knowledge which is available to inform them on issues which they have to consider — see Parramatta City Council v Hale (at 346), Somerville v Dalby (at 429); Marnal v Cessnock City Council (at 140) and Lakeside Plaza Pty Ltd v Legal and General Properties No 2 Ltd (1992) 76 LGRA 60 at 65. 24 Justice Parker, in Lester Land Holdings v DAC,10 quoted this passage with approval, and said: 11 I accept that the plaintiffs face a difficult task in establishing the collective state of mind of a body of persons such as DAC. While the Court is entitled to draw inferences as to the reasoning of DAC, those inferences must be based upon the objective evidence. 25 The first respondent has advised, by way of correspondence dated 26 March 2026,12 that the only materials that were before the SCAP at the time that it made the decision under review were those set out in paragraph 31 of the applicant’s Statement of Facts, Issues and Contentions (“the SFIC”). 26 I do not consider that the notes are objective evidence of the deliberations of the SCAP, nor do I consider that they are materials that were before the SCAP at any time. They are the subjective notes made by individuals for their own use to assist in their own consideration and analysis of the application. They were not prepared for the purpose of advising other members; they were not prepared to assist any person other than the person who made them; nor were they prepared as 8 (1993) 80 LGERA 190. 9 Ibid, 195. 10 (2020) 243 LGERA 221. 11 Ibid, [55]. 12 Correspondence attached to FDN 29. -- 10 of 25 -- [2026] SASC 72 Bochner J 7 a draft or aide memoire in the production of minutes of the meeting. To suggest that they can in any way elucidate the decision making process of the SCAP is to overstate their significance; indeed, such a suggestion is based on an assumption that the notes comprehensively and completely capture all of the deliberations and discussion conducted by the SCAP. There is no evidentiary basis for such an assumption. 27 On this basis, the application for discovery falls at the first hurdle. The applicant has not demonstrated that the notes are directly relevant to the issues in dispute, nor that they would assist in the resolution of any of the issues in dispute. 28 FDN 15 will be dismissed. The application to interrogate 29 The applicant seeks to interrogate both the first and second respondents. The interrogatories directed toward the first respondent go to the processes, discussion and decision making of the SCAP members. In particular, they seek to ascertain which members supported the grant of consent, the matters that were considered and the reasoning of each member. The interrogatories directed to the second respondent relate to the allegations made by the applicant that the second respondent failed to comply with s 15 of the PDI Act and whether the development application was misleading. The applicant’s submissions on interrogatories 30 The applicant contends that interrogatories are legitimate forensic tools that can be utilised by applicants for judicial review, while accepting that there is no entitlement to administer interrogatories. In submitting that it is appropriate to require the respondents to answer interrogatories, the applicant relies on similar authorities to those relied on to support the application for discovery, such as the decision of Beech-Jones J in YBFZ Minister for Immigration, Citizenship and Multicultural Affairs,13 referred to at [9] of these reasons. Relying on Moreland City Council v Minister for Planning,14 it contends that the question to be determined is “whether the evidence relied upon by the Councils has demonstrated that the making of an order for [interrogatories] might elicit evidence of some material of probative value in the proceeding, and in particular, whether [interrogatories] would assist the Court in making any factual determination it needs to make for the purposes of determining the proceeding”.15 Ultimately, the Court must determine whether it is in the interests of justice to allow interrogatories to be administered. 31 The applicant says that the interrogatories directed to the first respondent are to establish the materials before the members of the SCAP, the processes that were followed, the records of the meeting, which members supported the granting of 13 (2024) 99 ALJR 1. 14 (2014) 203 LGERA 152. 15 Ibid, [15]. -- 11 of 25 -- [2026] SASC 72 Bochner J 8 consent and the reasoning of the individual members of the SCAP. Given that this evidence could be adduced through oral evidence, the applicant says that it is permissible to interrogate on these topics. In this regard, it relies on the words of Bignold J in Sumitomo Life Realty v Grace Bros Holdings Ltd & Ors,16 where he said:17 In my judgment, it would be clearly open to the applicant at the trial to call each of the members of the committee who participated in the decision of the committee to grant the aforesaid development consent, to ask each of the witnesses whether he or she considered specified statutory considerations and formed relevant statutory opinions in granting that development consent. If the testimony of a majority of those members was to the effect that they did not consider relevant considerations or did not form relevant opinions that testimony would provide an evidential basis upon which the Court could find that the collegiate decision of the Planning Committee had failed to consider relevant matters or had failed to form relevant opinions. To acknowledge this possibility at the trial is to recognise the legitimacy of the interrogatories which are objected to by the Council: Duke of Sutherland v British Dominions Land Settlement Corporation Ltd [1926] Ch 746. 32 The applicant submits that, given the opacity of the SCAP’s reasoning, the only way to ensure a fair trial is to allow the interrogatories to be administered. 33 The applicant says that the interrogatories directed to the second respondent are to address its contentions that the second respondent failed to comply with s 15 of the PDI Act. If the applicant’s contentions on this point are successful, the Court would be required to make findings about the second respondent’s behaviour and state of mind, which will be informed by these interrogatories. The first respondent’s submissions on interrogatories 34 The first respondent contends that interrogatories should not be allowed where the questions sought to be asked are speculative and amount to mere fishing. It relies on the case of Minister for Immigration & Multicultural & Indigenous Affairs v Wong18, where the Full Court of the Federal Court said:19 It is clear from Bannerman that a mere allegation, in the absence of something more, would not suffice to require discovery and it may be said here interrogatories. In fact the case concerned both interrogatories and discovery and did not suggest any difference in principle between the two. What that something more is will depend on the particular circumstances of the case. In some cases (the present is not one) there may be evidence upon which it is open to conclude that the matter into which enquiry is sought may be made out so that discovery or interrogatories may be appropriate. In other cases it may be possible by reference to known facts to draw inferences which then found a suspicion. But mere suspicion not “grounded” on evidence or inference will not suffice. 35 Further, the first respondent notes that the SCAP was not required to provide reasons for its decision. 16 (1994) 83 LGERA 46. 17 Ibid, 49. 18 [2002] FCFC 327. 19 Ibid, [32]. -- 12 of 25 -- [2026] SASC 72 Bochner J 9 36 The first respondent says that there is no basis for the interrogatories directed to ascertaining the materials before the SCAP members. Those materials are identified by the SFIC, and confirmed by the first respondent. There is also no basis for the interrogatories which seek to ascertain to whom the Staff Report was provided, and when and by what method it was provided. The first respondent says that the applicant has not adduced any evidence to suggest that the Staff Report was provided to any person other than the SCAP members; thus there is no basis for these questions, nor are they relevant to any issue in dispute. 37 The first respondent says that the interrogatories which seek to ascertain who made the decisions about the distribution of the Staff Report have no relevance to the issues in dispute. These questions amount to a fishing exercise to see if there has been a breach of the Act or any Code or Direction governing the operation of the SCAP. Even if there were evidence of such a breach, it would not amount to a jurisdictional error or an error of law and so is irrelevant to the application for judicial review. 38 Interrogatory 8 asks for identification of the power relied on by the presiding member of the SCAP to close the meeting to the public. The first respondent says that, given that the SCAP’s Practice and Operating Directions clearly give it the power to close a meeting to the public, the identification of this power is not relevant to any ground of review, nor are the presiding member’s reasons for doing so. 39 Interrogatory 9 seeks to interrogate further the decision of the presiding member to close the meeting to the public. This is mere fishing by the applicant and is based on no more than speculation. 40 Interrogatories 10 – 13 are inquiries as to whether individual SCAP members made notes, and if so, whether this occurred after the meeting was closed to the public. The first respondent says that it has advised the applicant that only three members of the SCAP made notes. These notes are not relevant to the issues in dispute and interrogatories in relation to them are speculative at best. 41 Interrogatories 14, 15 and 18 are directed towards the individual decision making of the SCAP members, including their consideration of the Staff Report, their acceptance of its contents and the way in which each member voted. The first respondent says that these questions amount to mere fishing. There is no evidence to suggest that the members of the SCAP did not fully consider the materials before them, or exercise their own independent judgment when considering the issues before them. This is a case where the SCAP’s reasoning can be inferred from the materials that were before it; it is no more than speculation to suggest that the members did not consider those materials, or considered other materials and undertake their own assessment. 42 Interrogatories 16 and 17 relate to the content of the minutes of the SCAP meeting. Interrogatory 16 asks the first respondent to admit a fact, that is, whether -- 13 of 25 -- [2026] SASC 72 Bochner J 10 the minutes record a short explanation for the decision. Interrogatory 17 then seeks to explore the admission (or otherwise) further. The first respondent says that it is not appropriate to seek the admission of a fact by way of interrogatories. This is either a fact to be determined at trial, or should be the subject of a notice to admit. As interrogatory 17 is entirely dependent on the answer to interrogatory 16, it should be disallowed for the same reasons. Interrogatory 17 also asks for an explanation for the decision made by the SCAP. The first respondent says that, against a legislative background that does not require the SCAP to provide reasons for its decisions, this is not an appropriate topic for interrogatories. 43 Finally, the first respondent says that the provision of answers to the interrogatories dealing with the decision making process would offend against the Hardiman principle.20 The first respondent has indicated that it will not take an active role in this litigation and will abide the event, so as to ensure that there can be no suggestion of bias should the application be remitted to it for further consideration. To provide the answers sought may lead to an apprehension of bias in the future. The second respondent’s submissions on interrogatories 44 The second respondent notes that it has agreed with almost all of the factual allegations made by the applicant; as a result, there are very few factual matters in dispute between them. It says that leave should only be granted to the applicant to interrogate it if the applicant is able to demonstrate that it would suffer some unfairness if it is not permitted to do so. Interrogatories should be permitted in limited cases where the applicant demonstrates that it would be unfair to require it to go to trial without the information sought, and that it has no other way of obtaining the information. Cross-examination by interrogatories should not be permitted. Interrogatories which amount to no more than fishing should also be disallowed. 45 The second respondent notes that the most recent decision of the Full Court or Court of Appeal of this State that addresses the purpose of interrogatories is that of Pearce v Hall,21 in which King CJ endorsed the words of Judge Lunn in Barber v The Nominal Defendant.22 Barber and Pearce demonstrate a more restrictive approach to the granting of leave to administer interrogatories than had been applied in the past. The second respondent says that, while the UCR are in different terms to the rules that applied when Pearce and Barber were decided, they remain relevant authorities in determining whether interrogatories should be allowed under the UCR. A similar approach has been taken by the Federal Court; in support of this submission, the second respondent relies on the words of Colvin J 20 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 21 (1989) 52 SASR 568. 22 (1989) 153 LSJS 8. -- 14 of 25 -- [2026] SASC 72 Bochner J 11 in McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (McQueen)23, where he said:24 The principles to be applied in determining whether to allow interrogatories in judicial review proceedings were considered in Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 at [24]-[34]. Interrogatories may be ordered in an 'appropriate case' according to the same principles that apply in considering whether to order discovery in judicial review proceedings. There must be a foundation in evidence or in the pleadings to support the application to administer interrogatories. There must be more than mere speculation or a bare allegation. If evidence is led as the basis for the application then it must demonstrate a foundation for suspicion that answers to the interrogatories may support a ground of review. Where an allegation is made in proceedings that have been commenced (whether in an application or a pleading) and the proceeding is not an abuse of process then a claim that has been formulated as part of the proceeding may adequately ground the order. If the interrogatories are shown to have the requisite foundation then other case management considerations are brought to bear in deciding whether to allow the application to administer interrogatories. Those considerations include a balancing of the burden that would fall on the answering party, the forensic significance that the answers might have in resolving the issues, any delay that may result if interrogatories were to be administered, the practical consequences of the decision under review and whether the information may be obtained by other means. 46 The second respondent says that this means that, in order to be granted leave to administer interrogatories, the applicant must demonstrate that there is an evidential basis for the questions and they must be relevant to the grounds of review, in addition to satisfying the requirements of the object of the UCR. 47 The interrogatories that the applicant seeks to administer to the second respondent relate to the allegation that it had breached s 15 of the Act. The applicant has submitted that, in reaching a decision on this point, the Court would need to make findings about the second respondent’s state of mind; while the applicant accepts that Mr Whittle, one of the second respondent’s directors could be cross-examined on this question, interrogatories would be an efficient way to elicit this information, particularly given that Mr Whittle is not its sole director. This is the only basis on which the applicant seeks to interrogate the second respondent. The forensic significance of the answers to the proposed interrogatories has not been identified by the applicant, nor has the applicant identified any forensic disadvantage that it would suffer if interrogatories were not permitted. 48 The second respondent says that the allegations relied on by the applicant in support of the application are clearly identified in the SFIC and are within the applicant’s own knowledge. Interrogatories are not required in order to prove them. In addition, the contentions in the SFIC to which the proposed interrogatories relate do not give rise to a recognised ground of judicial review; 23 [2021] FCA 812. 24 Ibid, [7] – [8]. -- 15 of 25 -- [2026] SASC 72 Bochner J 12 thus interrogatories relating to them are not relevant. The second respondent has pleaded that they are liable to be struck out as a result. 49 The second respondent says that the fact that the proposed interrogatories do not relate to a ground of judicial review should be fatal in itself. 50 The second respondent says that the interrogatories amount to fishing: it has admitted nearly all of the facts set out in the SFIC and has not denied any of them. Rather, they are directed towards the legal contentions that those facts seek to establish. As a result, it must be concluded that the applicant is looking for further evidence to bolster its review application. Consideration The principles to be applied 51 While the terms of the UCR relating to interrogatories are different to those considered by the Court in Pearce and Barber, I do not consider that the principles to be applied have substantially changed. At the time that Pearce was decided, the Local Court Rules 1970 provided that leave was required to administer interrogatories in personal injuries matters.25 In addition, the Local and District Criminal Court Act 1926 (SA) contained a provision to the effect that an order should not be made requiring a party to answer interrogatories unless such an order is “necessary for disposing fairly of the action or matter or for saving costs.”26 With respect to these provisions, King CJ said: 27 The essential features of the statutory provision are that a party is not to be required to answer interrogatories except by order of the court and that no such order is to be made unless it is necessary for disposing fairly of the action or for saving costs. 52 UCR 117.5(1) simply provides: (1) A party may, with prior leave of the Court, administer interrogatories to another party. 53 However, the UCR must be read against the background of their object: “… to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings…”.28 Thus, if the interrogatories do not facilitate this object, then they should not be permitted. In this regard, I consider that the UCR are, if anything, more restrictive in the approach to allowing interrogatories than were the rules considered in Pearce and Barber, where the consideration was whether they were required for disposing fairly of the action or for saving costs. While notions of efficiency, cost effectiveness and proportionality may have been implicit in the concept of the fair disposal of an 25 Rule 127(1). 26 Section 25 (1)II(c). 27 (1989) 52 SASR 568, 570. 28 UCR 1.5. -- 16 of 25 -- [2026] SASC 72 Bochner J 13 action, they are now made explicit and must be considered independently in any application for the administration of interrogatories. 54 I consider that the principles that should be applied in this Court are similar to those applied by the Federal Court in McQueen and Wong. I note that the relevant rule in the Federal Court Rules 2011 provides: 21.01 Order for interrogatories (1) A party may apply to the Court for an order that another party provide written answers to interrogatories. (2) The application must be accompanied by an affidavit annexing the proposed interrogatories. 55 Rule 21.01 must be read in conjunction with s 37M of the Federal Court Act 1976 (Cth), which provides: 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court’s overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court made under this Act; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court. -- 17 of 25 -- [2026] SASC 72 Bochner J 14 56 Thus, it can be seen that, while not identical in terms to the provisions in this State, similar considerations inform their application and the conduct of proceedings within that Court. While I am not bound by decisions of the Federal Court, I consider that their approach to the use of interrogatories is instructive. 57 Based on a consideration of Pearce, Barber, McQueen and Wong, and against the background of the provisions of the UCR that I have referred to, I consider that the principles to be applied when determining whether interrogatories should be allowed in a judicial review application are:29 • The state of mind of the decision maker will only rarely be relevant in an application for judicial review, unless a question arises as to whether the decision maker acted in good faith; in this instance, interrogatories on this topic may be relevant, depending on the circumstances of the case.30 • Interrogatories will not be allowed where they are underpinned by mere allegation or suspicion.31 If the case is one which falls into the category of that described by Brennan J in Bannerman, as one where a bare allegation is denied as a result of which the interrogator “seeks to interrogate the Chairman and ransack his documents in the hope of making a case”32, then interrogatories should not be allowed. A mere allegation, not grounded in evidence or inference reasonably drawn from known facts or the pleadings, is generally not sufficient to justify an order allowing interrogatories.33 • Once the proposed interrogatories are shown to have the required evidential or other foundation, consideration should then be given to whether allowing them would further the object of the UCR;34 that is, whether they “facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings”. 58 I note the applicant’s reliance on Sumitomo Life Realty v Grace Bros Holdings Ltd & Ors.35 I do not consider that it represents the position in South Australia, either at the time that it was decided, or now. In Barbarian Motor Cycle Inc v Koithan36, King CJ said:37 29 UCR 1.5. 30 Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCFC 327 at [26]. 31 Ibid, [28] – [29]. 32 Quoted by the Full Court of the Federal Court in Wong at [30]. 33 Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCFC 327 at [32], McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 812 at [7]. 34 McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 812 at [8]. 35 (1994) 83 LGERA 46. 36 (1984) 35 SASR 481. 37 Ibid, 484. -- 18 of 25 -- [2026] SASC 72 Bochner J 15 The freedom with which interrogatories have been allowed and answers required has varied a good deal from time to time according to the current experience of the courts as to their utility in serving the ends of justice. He went on to say:38 There are, of course, some well-established rules as to types of interrogatory which will not be allowed. Two such types are referred to by Helsham J. in the passage just quoted, namely, interrogatories "directed only to an attempt to ascertain the nature of the opponent's evidence or the names of his witnesses". It is also well-established that an interrogatory will not be allowed if it is merely "fishing", that is to say if it is not sufficiently material to the issues in the case, but seeks information which might disclose a cause of action against a person who is not a party to the proceedings or might disclose a cause of action against the party interrogated other than the cause of action pleaded. 59 I consider that this statement addresses the suggestion that it is appropriate to use interrogatories to cross-examine the opponent’s witness, if it is open to the applicant to call that witness at trial. This amounts to no more than an attempt to ascertain the nature of their evidence in advance of trial; it should not be allowed. Since the decision in Barbarian, the right to administer interrogatories has been further restricted and is now governed by the principles underpinning the UCR. Interrogatories that amount to cross-examination would not facilitate the object of the UCR as set out in UCR 1.5. 60 For the purpose of these reasons, it is necessary to set out each of the interrogatories proposed to be directed to the respondents. The interrogatories directed to the first respondent 1. To whom was the Staff Report provided? 2. For each such person in Answer 1 (a Report Recipient), when and how was the Staff Report first provided to them? 61 I do not understand the relevance of these interrogatories. There is no allegation that the Staff Report was provided to a person who was not entitled to receive it. As a result, interrogatories 1 and 2 will not be allowed. 1. To which of the persons present at the SCAP Meeting, if any, were each of the following documents provided (and, if so, when and how): a. the Council Letter? b. the ODASA Letter? c. the Representation Email? d. the Representation Letter? e. the Shadow Diagrams? 38 Ibid, 486. -- 19 of 25 -- [2026] SASC 72 Bochner J 16 2. If any of Answers 3(a), (b), (c), (d), or (e) does not include all SCAP Members together with the author(s) of the Staff Report: (i) which person or persons decided upon the recipients of that document (Distribution Decision)? (ii) was the decision not to provide the document to all SCAP Members made in consultation with any other persons, and if so, who were those persons? 3. For each person identified in Answer 4, if any, were they at the time of the relevant Distribution Decision: a. a SCAP Member? b. an accredited professional? c. a person providing services to the First Respondent? d. a person providing services to the SCAP? 4. For each person identified in Answer 4, if any, what documentary record, if any, did that person make of the relevant Distribution Decision? 5. For each person identified in Answer 4, if any, what consideration, if any, did that person give to: a. Section 15? b. the Professionals Code? c. the Panel Code? d. the SCAP Operating Directions? 62 These interrogatories will not be allowed. The applicant has pleaded in the SFIC the documents that were before the SCAP members; this has been confirmed as correct by the first respondent. Further, the Staff Report describes the material on which it is based. As a result, the interrogatories that relate to the material that was considered by the SCAP members or by the author of the Staff Report raise matters which are already within the knowledge of the applicant, or can be readily ascertained by it from the material currently in its possession. 63 Further, I do not consider that the applicant has established the relevance of questions going to the identity of the person who decided to whom the Staff Report should be provided, or what matters were taken into consideration by that person. There is no allegation that the Staff Report was distributed to a person who was not entitled to receive it, or that it was not received by someone who should have. 6. What power did the presiding member rely upon, at the SCAP Meeting and at the time of making that decision, to 'close the public hearing' concerning the Application (Private Deliberations Decision)? -- 20 of 25 -- [2026] SASC 72 Bochner J 17 7. In making the Private Deliberations Decision, what consideration, if any, did the presiding member give to: a. Section 15? b. the Professionals Code? c. the Panel Code? d. the SCAP Operating Directions? e. the Council Letter? f. the ODASA Letter? g. the Representation Email? h. the Representation Letter? 64 The power to close the SCAP meeting to the public is clearly expressed in Clause 17.9 of the SCAP’s Practice and Operating Directions. As a result, the answer to interrogatory 8 is known. I do not understand the relevance of interrogatory 9. There is no allegation that any of the matters in interrogatory 9 (a) – (h) should have been considered by the presiding member of the SCAP but were not in making the decision to close the meeting to the public. I consider that this question amounts to a fishing expedition to ascertain evidence to support the allegation of apprehended bias. Interrogatories 8 and 9 will not be allowed. 8. Did any SCAP Member make any notes of their consideration of the Application? 9. If Answer 10 is, "Yes": a. identify all such Members? b. identify all such notes? 10. After the public hearing had been closed, did any person present at the SCAP Meeting make any notes of any discussions concerning the Application? 11. If Answer 12 is, "Yes": a. identify all such persons? b. identify all such notes? 65 The answer to interrogatory 10 is already known by the applicant. I have already determined that the notes made by individual SCAP members are not directly relevant to the issues in dispute, nor would they assist in the resolution of any of the issues in dispute. As a result, I consider that interrogatories 11 to 13 amount to no more than a fishing expedition and do not go to a matter that is relevant to an issue in dispute between the parties. Interrogatories 10 to 13 will not be allowed. -- 21 of 25 -- [2026] SASC 72 Bochner J 18 12. Which SCAP Members voted in favour of Resolution 2 (Approving Members)? 13. In respect of each Approving Member: a. did they read the Staff Report in its entirety (including Appendix 1 and all Attachments thereto)? b. did they accept as correct: i. the Collaboration Statement (as defined in the SFIC)? ii. the Boundaries Policy Statement (as defined in the SFIC)? iii. the Limited Policies Statement (as defined in the SFIC)? iv. the Impacts Statement (as defined in the SFIC)? v. the No Detriment Statement (as defined in the SFIC)? vi. Sheet SK14 within Attachment 1A to the Staff Report? c. did they believe the GA Response (as defined in the SFIC) to be a s 122 referral response? d. what consideration, if any, did they give to: i. the Loss of Light Issue (as defined in the SFIC)? ii. the fact that the Second Respondent was not prepared to find a reasonable solution to that issue? iii. the Loss of Views Issue (as defined in the SFIC)? iv. the fact that the Second Respondent was not prepared to find a reasonable solution to that issue? v. Natural Light Reduction (as defined in the SFIC)? vi. Air Movement Reduction (as defined in the SFIC)? vii. the Thermal Environment Change (as defined in the SFIC)? viii. Outdoor Areas Noise (as defined in the SFIC)? ix. the GA Response (as defined in the SFIC)? e. did they construe the Noise DPF (as defined in the SFIC) as if the Relevant Criteria (as defined in the SFIC) were 62 dB(A) for 'Day' hours and 55 dB(A) for 'Night' hours? f. if the answer to (e) above is "No", how did they construe the Relevant Criteria? 14. Is it admitted that the minutes of the SCAP Meeting do not record a short explanation as to why the Application was approved? 15. If Answer 16 is, "Yes": -- 22 of 25 -- [2026] SASC 72 Bochner J 19 a. why do the minutes not record a short explanation? b. what is the SCAP's short explanation as to why the Application was approved? 16. In respect of each Approving Member: a. which, if any, part(s) of the Staff Report did they not accept as correct or persuasive? b. did they reason in accordance with the Staff Report to the conclusion that the merits of the Proposed Development warranted a grant of planning consent? c. if not, how did they reason to that conclusion? 66 I note that, while, in Khabbaz & Anor v State Planning Commission & Ors39 Parker J did not reach a firm conclusion as to whether the Hardiman principle applied to the SCAP, he said:40 However, Kirby J also held in Muin that the giving of evidence about the decision-making process [of the Refugee Review Tribunal] may be contrary to the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman that members of administrative tribunals should not take an active part in proceedings in which their decisions are challenged and instead should give an undertaking to abide the event. Whether or not SCAP is covered by the Hardiman principle is not certain, although I firmly incline to the view that it should be subject to the principle on the basis that if its decision is successfully challenged in judicial review proceedings it is likely to be called upon to make a fresh decision. There may be a potential for an apprehended bias argument if SCAP has actively participated in defending a decision under review. The foundation of the Hardiman principle is, of course, the need to avoid the future risk of a bias argument should a matter need to be remitted to the decision-maker. Thus, the view expressed by Kirby J in Muin that the giving of evidence about the decision-making process may be contrary to the Hardiman principle may potentially apply in the circumstances under consideration. In that context I note that the second respondent did give an undertaking to abide the event in these proceedings, apparently in compliance with the Hardiman principle. (footnotes omitted) 67 I have not heard detailed submissions from the parties as to whether the Hardiman principle applies to the SCAP; I note, however, that the first respondent has here, as in Khabbaz, indicated that it will abide the event, on the basis of the application of the Hardiman principle. I, like Parker J, consider that it should be subject to the Hardiman principle (while not making a final decision on this point), on the basis that there is a likelihood that the matter would be remitted to it in the event that the applicant is successful in its judicial review proceedings. As a result, I consider that the criticisms that the applicant has made of the first respondent, in not filing any affidavit material in the matter, are misconceived. 39 [2022] SASC 11. 40 Ibid, [387] – [388]. -- 23 of 25 -- [2026] SASC 72 Bochner J 20 68 I consider that there is no evidentiary or inferential basis for interrogatories 14, 15 and 18. These amount to interrogation of individual members of the SCAP about their analysis of the Staff Report. There is no evidence to suggest that members did not read all of the material provided to them, or that their acceptance or otherwise of any the material in it would give rise to a ground of judicial review. It appears to me that these questions go more to the merits of their decision than to any legitimate ground of judicial review. They will not be allowed. 69 Interrogatories 16 and 17 are, in my view, inappropriate. They call on the first respondent to provide an interpretation of the minutes. They will not be allowed. 70 Having considered all of the interrogatories directed towards the first respondent, I consider that none of them should be allowed. Collectively, they are irrelevant to the issues in dispute between the parties and would not “facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings…”.41 The interrogatories directed to the second respondent 71 The applicant says that the interrogatories directed to the second respondent are relevant to the question whether the second respondent complied with s 15 of the Act, and whether the development application contained material which was misleading in a material particular. 1. Who were the people who made decisions as to the nature and form of the Proposed Development? 72 I do not see the relevance of the identities of the people who decided on the nature and form of the proposed development. I do not understand how it relates to any of the applicant’s grounds of judicial review. It will not be allowed. 2. For each such person in Answer 1 (a Developer): a. what did that Developer understand to be the concerns, if any, held by the Pullman Entities concerning the Proposed Development? b. does the second respondent admit that that Developer was not prepared to modify the Proposed Development so as to provide a material separation from all Western Balconies? c. does the second respondent admit that that Developer was not prepared to modify the Proposed Development to provide any greater level of natural light and air to the Western Balconies than as proposed by the Application? d. does the second respondent admit that that Developer was not prepared to find any reasonable solutions to the issue of the Proposed Development's impact upon the Western Balconies and the rooms served by those balconies? 41 UCR 1.5. -- 24 of 25 -- [2026] SASC 72 Bochner J 21 73 I consider that this interrogatory amounts to fishing. I am not satisfied that the evidence sought through these questions gives rise to a ground of judicial review relied on by the applicant. The applicant pleads the communications that it had with the second respondent in paragraphs 13 – 24 of the SFIC. None of these allegations are disputed by the second respondent. In essence, the second respondent denies that the proposed development was misleading in a material particular, denies that the relevant drawings did not show the balconies, and denies that it breached the s 15 expectations. However, even if the Court finds that the applicant’s allegations are correct, the applicant does not identify how these findings would lead to success on the judicial review application. They do not amount to jurisdictional error on the part of the first respondent, nor do they give rise to the invalidity of the first respondent’s decision on any other pleaded ground. 74 I accept that the applicant seeks a range of declaration from the Court and that it is entitled to do so pursuant to UCR 256.4(6). I do not understand, however, how it says that the making of those declarations will assist in establishing a proper ground of judicial review or, indeed, what consequences would flow from them. As a result, this interrogatory must amount to no more than fishing. It will not be allowed. 3. As part of communications with the SCAP concerning the Application, what was communicated in relation to: a. the Collaboration Statement? b. the Pullman Entities? c. any relationship, arrangement, or agreement with any of the Pullman Entities? 75 Given that the first respondent has advised the applicant of all of the materials that were before the SCAP, this interrogatory is misconceived. The answer will be determined from material that is already in the applicant’s possession. Otherwise, it can only amount to fishing. It will not be allowed. 4. Why did sheet SK14 not show the Western Balconies? 76 This interrogatory must be disallowed as it is premised on a fact that is in dispute between the parties. The second respondent’s position is that the Western Balconies were shown on sheet SK14. Conclusion 77 FDN 21 will be dismissed. I will hear the parties on the question of costs. -- 25 of 25 --