Benter Pty Ltd v Brisbane City Council [2006] QPEC 7 (2006) QPELR 451

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Benter Pty Ltd v Brisbane City Council [2006] QPEC 007 PARTIES: BENTER PTY LTD Applicant BRISBANE CITY COUNCIL Respondent FILE NO/S: No 3335/05 DIVISION: Planning and Environment PROCEEDING: Application for declaratory relief ORIGINATING COURT: Brisbane DELIVERED ON: 17 February 2006 DELIVERED AT: Brisbane HEARING DATE: 28 September, 27 October and 8 December 2005 Written submissions received 13 December 2005 JUDGE: Rackemann DCJ ORDER: The application is dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – whether abandonment of use – service station Integrated Planning Act 1997 Cases cited Earle Cameron Constructions Pty Ltd v Parramatta City Council (1981) 46 LGRA 130 Hartley v Minister of Housing and Local Government (1969) 3 All ER 1658 Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 Hughes v Secretary of State for the Environment, Transport and the Regions (2001) PLR 76 Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 KT Corporation Pty Ltd v Queensland Government Department of Main Roads and Logan City Council (2005) QPELR 28 Leeming v City of Port Adelaide [No 2] (1987) 62 LGRA 296 Mirandraft Pty Ltd v Rockdale Municipal Council (1980) 46 LGRA 163 -- 1 of 17 -- 2 William McKenzie Pty Ltd v Leichhardt Municipal Council (1964) 10 LGRA 137 at 143 COUNSEL: Mr Haydon, of counsel, for the applicant Mr T Trotter, of counsel, for the respondent SOLICITORS: Home Wilkinson Lowry for the applicant Brisbane City Legal Practice for the respondent [1] The applicant (Benter) for declarations is the owner of premises, located at 243 Hamilton Road, Wavell Heights, which were previously operated as a service station. Benter purchased the site from Mobil Oil Australia Pty Ltd (Mobil), pursuant to a contract dated 22 September 2004, which settled on 10 December 2004. Benter proposes to redevelop the site so that it may again be operated as a service station. It is in dispute with the council about whether a development permit for a material change of use is required pursuant to City Plan. [2] The commencement of a planning instrument, or an amendment thereof, cannot stop the continuance of a lawful use (s 1.4.2), but the re-establishment of a use that has been abandoned constitutes a material change of use (s 1.3.5). The only issue which the court was ultimately asked to determine, was whether Benter’s proposal would involve a material change of use by reason of being the re-establishment of a service station use that had been abandoned. The council ultimately did not contend that any other part of the definition of “material change of use” would be triggered. [3] Prior to its purchase by Benter, the site had not been operated as a service station for some considerable time. The question was whether abandonment had occurred at the hands of Mobil. It was common ground that, if that were not so, Benter had done nothing, in pursuit of its plans, which would amount to abandonment. -- 2 of 17 -- 3 [4] Whether there has been abandonment is a question of fact to be determined having regard to all of the circumstances1 . [5] The relevant circumstances include the subjective intention of the relevant person, but a conclusion of abandonment can not be avoided simply by the assertion of an ongoing intention to preserve existing rights2 . In Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 at 718 Hope JA (with whom Kirby P agreed) said: “As it seems to me, it is necessary to have regard to the whole of the circumstances, including the subjective intention of the relevant person, and to determine whether in the light of all those matters the cessation of actual use proved by the facts is outweighed by an asserted subjective intention to continue the use.” [6] In Leeming v City of Port Adelaide [No 2] (1987) 62 LGRA 296 King CJ said, at 307: “… essentially the question whether an existing use continues or has been discontinued must be determined by reference to what is taking place on the land. The legal character of what is taking place on the land may be affected, however, by the intentions of the owner or occupier. The significance, for example, of the continued presence on the premises of equipment and fittings appropriate to the existing use may depend upon the intentions of the owner or occupier with respect to such equipment and fittings. If they are allowed to remain on the premises for the purpose of facilitating the resumption of activity pursuant to the use on the premises, their continued presence will be a strong indication of a continuance of the use. … A use may be discontinued by means of cessation of activity pursuant to that use accompanied by words or conduct on the part of the owner or occupier indicating unequivocally an intention to abandon or terminate the use. It may also be discontinued by cessation of activity pursuant to the use in such circumstances, or for such duration, or both, as to indicate from a practical point of view that such cessation is no mere interruption of activity pursuant to the use, but amounts to abandonment or termination of the use, irrespective of the subjective intentions of the owner or occupier as to the future.” 1 . See William McKenzie Pty Ltd v Leichhardt Municipal Council (1964) 10 LGRA 137 at 143 2 See KT Corporation Pty Ltd v Queensland Government Department of Main Roads and Logan City Council (2005) QPELR 28 at 31 -- 3 of 17 -- 4 [7] Relevant subjective intentions are those which relate to the intention to continue the existing use, rather than merely those relating to an intention to preserve a use right3 . [8] A finding as to whether there has been abandonment should be made by reference to the view that would be taken by a reasonable person with knowledge of all of the relevant circumstances4 . [9] This site was the subject of a service station approval in 1964, with alterations being approved in 1969, 1976 and 1978. On a date which is not identified, Mobil became the owner of the land. The site thereafter was operated as a service station. At some point trading ceased and the site was vacated. [10] The matter was originally argued on the agreed basis that trading ceased in 2000, some four years prior to the sale to Benter. Subsequently an application was made, by the applicant, to withdraw that admission and to reopen its case in order to rely upon evidence to the effect that operations continued until October 2002. For the reasons stated later, I am prepared to grant that application. In either event however, trading had ceased for a substantial period prior to the sale to Benter. [11] Following the cessation of trade the site was vacated, fenced off, and the building on the site was boarded up. On 27 April 2004 Mobil obtained a development approval for demolition. Photographs taken at that time depict the then state of the premises and reveal that the bowsers had been removed; an absence of any signage, other than one on the canopy (relating to car servicing); graffiti on the building; and weeds growing through the concrete apron. Some time after obtaining demolition 3 See Earle Cameron Constructions Pty Ltd v Parramatta City Council (1981) 46 LGRA 130 at 137 and Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 119 -- 4 of 17 -- 5 approval the driveway canopy was removed. Mobil did not subsequently operate the site as a service station or redevelop it to a state whereby it was ready to be operated for that purpose, by Mobil or anyone else. [12] There was some reference to Mobil’s failure to demolish the building on site. The evidence does not establish that the building was only suitable for use as part of a service station. As a matter of common experience, such buildings on disused service station sites are sometimes put to alternate uses. [13] The subsequent contract of sale to Benter was subject to a number of conditions, including that Mobil would remove any and all underground fuel tanks, fuel pumps and associated pipes, signage and other equipment for the sale and storage of petroleum products either before or after the contract date, but before completion of the contract5 and, at its discretion, could “remove or render useless any and all of its trade fixtures and any and all improvements on the Land”6 if, in its opinion, that was necessary to meet its environmental obligations under the contract. [14] There is some similarity between this case and Mirandraft Pty Ltd v Rockdale Municipal Council (1980) 46 LGRA 163, which involved a disused service station site purchased from BP Australia Limited. Unlike the present case, the purchaser wished to redevelop the site for residential purposes, but the jurisdiction of the council to grant consent depended upon there being an “existing use”. Accordingly the court had to determine whether the service station use continued or had been abandoned. 4 See Hughes v Secretary of State for the Environment, Transport and the Regions (2001) PLR 76 per Kennedy LJ at 82 and Hartley v Minister of Housing and Local Government (1969) 3 All ER 1658 per Denning MR at 1660 5 Special conditions 3.5 6 Special conditions 3.6 -- 5 of 17 -- 6 [15] The evidence established that in April or May 1979 BP Australia Limited, being dissatisfied with the level of business being transacted at the service station, formed an intention to close it. The person who managed the service station on behalf of BP Australia Limited left in June 1979 and the service station thereafter remained idle and unoccupied. A few weeks later the tanks and pumps were removed and the business was shortly thereafter sold at auction. [16] After referring to William McKenzie Pty Ltd v Leichhardt Municipal Council7 , in which Else-Mitchell J concluded that a previous use had come to an end because of the actions of the owners of removing all plant and equipment previously used in the business and ceasing to occupy the business for any purpose, McLelland CJ concluded, at 167: “In the present case I am of the view that the evidence clearly established that there had been an abandonment of the existing use which had hitherto preserved the service station from the prohibitions in the ordinance zoning plan and that, in such circumstances, the lifeline provided by clause 28 of the ordinance is of no avail to the appellant.” [17] The events described above, relative to the subject site, suggest that the service station use was abandoned. Benter contends however, that the circumstances should not be so characterised. Rather, it contends that Mobil’s actions should be characterised as steps towards the preservation and remediation of the site and that nothing was done which amounted to abandonment. This involves a consideration of the subjective intentions of Mobil. [18] It has been said, in different contexts, that the onus lies on the person who asserts abandonment 8 , but I was not referred to any provision of the IPA which would provide a basis for concluding that an applicant for a declaration that a use has not 7 (1964) 10 LGRA at 137 8 See Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 118 -- 6 of 17 -- 7 been abandoned, does not bear the onus. An applicant would, at the very least, bear the onus of adducing evidence to establish intention where, as here, it seeks to establish or rely upon subjective intention to avoid the conclusion which would otherwise be drawn from an examination of the site activities. [19] When the matter first came on for hearing, the applicant sought to prove Mobil’s intention by exhibiting, to an affidavit of the applicant’s solicitor, a letter from Mobil’s solicitors setting out their instructions. The letter, dated 6 May 2005, stated that Benter’s solicitors had requested “assurances concerning Mobil’s intention for the continuation of the legal right to use of the site for service station purposes” and that Mobil had “specifically instructed” its solicitors to give the assurances sought. The letter, which advocates the case that there had been no abandonment, states, amongst other things, that: • In early 2001 Mobil commenced an Australia wide evaluation of its service station network because a number of its sites were ageing and potentially required substantial refurbishment or a total rebuild to ensure competitiveness; • The evaluation included a requirement, in each instance, for an environmental investigation to determine the existence and extent of site contamination; • In most cases sites were closed to enable the site evaluation to be properly, effectively and safely carried out; • In most instances on-site buildings were boarded up to protect them from vandalism so that, upon completion of the site evaluation, they would be “immediately available in an undamaged condition to allow the continued use of the site for service station purposes where Mobil’s site evaluation indicated that this was the preferred course”; • It was not Mobil’s intention to abandon any “legally approved use” of any site or to abandon or relinquish any subsisting approval, less the market value of the site be affected; • The subject site was subjected to an evaluation of the kind described; • In or about October 2000 the site was fenced and the building boarded up “for the purpose of preserving the improvements intact to allow the service station use to continue in the future”. -- 7 of 17 -- 8 • Having contracted to sell the sites to the applicant, Mobil retained its right to enter the site to continue its evaluation. Mobil’s primary concern at that stage was “to identify any existing contamination on the site and to benchmark it so that its liability to remediate would be crystallised and segregated from any future liability to remediate contamination which might occur as a consequence of the continuing use of the site by Benter for service station purposes”; • At no time did Mobil ever commit to a course of action intended to dispose of the service station site for purposes other than continuing service station use. [20] In the face of objection to the applicant’s attempt to prove Mobil’s intention in that way, the hearing was adjourned to enable Benter to obtain evidence. It would appear that the applicant was hopeful of obtaining, through Mobil, evidence from a number of relevant witnesses, but when the hearing resumed on 27 October 2005, the applicant relied on the evidence of Mr Burge, a retired former employee of Mobil who, from 2000, was the senior real estate coordinator for Australia and, from 2001 until his retirement in November 2004, was the real estate manager for Mobil Real Estate within Australia and New Zealand. [21] In his affidavit, Mr Burge purported to confirm the contents of the letter of 6 May 2005, save that instead of saying that “at no time did Mobil ever commit to a course of action intended to dispose of the service station site for purposes other than continuing service station use”, Mr Burge would say, “In summary, at no time did Mobil ever commit to a course of action in disposing of the site which would have precluded its continued use as a service station site”. He also deposed that the cessation of trade was done to undertake an environmental investigation and then undertake environmental remediation, that the buildings were boarded up and, with the exception of the canopy (which was demolished to remove the tanks), preserved to allow the service station use to continue in the future. -- 8 of 17 -- 9 [22] In addition to swearing his affidavit, Mr Burge gave oral evidence and was subject to cross-examination. That evidence shed somewhat greater light on matters. Mr Burge appeared to have little recollection of matters of detail concerning the subject site, but in the course of his evidence it emerged that: (i) Mobil closed the site because it no longer wished to operate it as a service station9 ; (ii) Its decision was based upon economic modelling10 . (iii) At no stage between closure and sale did Mobil ever attempt or intend to operate it as a service station;11 (iv) There was a two stage process whereby the instruction to close a site pre-dated the instruction to put it on the market. The timing of the second step was dependant upon economic issues12 . The evidence does not disclose how long this site was closed prior to it being placed on the market; (v) The site assessment was undertaken once the site was closed13 . There was no evidence that the site was closed only for so long as was necessary to carry out the site assessment and Mr Burge could not say when the procedure occurred on the subject site14 ; (vi) Once it was decided to put a closed site on the market for sale, the marketing was “outsourced” to an agent who advised as to the highest and best use for marketing15 . Mr Burge could not say what specific instructions were given in relation to the marketing of the subject site16 . The general intention was to sell a closed site for whatever its highest and best use might happen to be. The evidence did not establish what that was, or was thought by Mobil to be, in this case. (vii) Save for prohibiting subsequent residential use, Mobil generally did not restrict the range of uses to which a purchaser might put the site17 ; (viii) The contracts used for the sale of Mobil sites were “pretty much” standard18 ; (ix) There was “no intention of actively going out and relinquishing our (use) rights but we didn't actively go and protect (them either)”19 . 9 T30 10 T26 11 T30 12 T26 13 T29 14 T30 15 T28 16 T26 17 T27 18 T28 19 T32 -- 9 of 17 -- 10 [23] Under the conditions of the contract between Mobil and Benter: • The level of contamination and the extent of remediation required is identified by reference to an environmental site assessment (ESA); • Mobil agreed to “retain liability and responsibility” for existing contamination, to the extent it exceeds the limits which would be required to be met if the site were used as a petrol filling station or fuel depot;20 • Mobil agreed to assume liability and retain responsibility for future costs of remediating existing contamination but “shall not be required to remediate the degree of contamination which is identified in the ESA unless compelled to do so by statutory authority or regulation”;21 • In consideration of Mobil agreeing to enter into the contract and “having regard to the prior use of the property as a petrol filling station incorporating underground storage tanks” Benter agreed to a number of things in relation to its future use of the property including in relation to the use of bores, the adoption of vapour ventilation systems (in relation to use or development which includes underground areas), the adoption of slab on-grade foundations (for use or development not involving underground areas), the restriction of use for any yard, recreation or open space area, the use of an impervious liner, the adoption and use of engineering and related technical assistance in any development or redevelopment and the prohibition on subsequent residential use;22 • Benter agreed not to use the property as a petrol filling station or fuel storage depot unless and until Mobil was satisfied that the ESA was complete;23 • One of the clauses, relating to the grading of the site, was to “have no force or effect where the vendor sells the property on the basis that it will continue to be used as a petrol filling station or depot for the storage of petroleum products”.24 The evidence does not establish that the subject site was sold on that basis; • Generally, there was no promise, representation or warranty with respect to the future use of the site. The contract records that “the vendor makes no representation or statement in relation to any non-conforming user rights, if any, relating to the property” 25 and except, as may be specifically provided, the purchaser acknowledged that no 20 clause 12.3(e) 21 clause 12.3(g) and (h) 22 clause 13 23 clause 12.8 (h) 24 clause 5.6(c) 25 clause 4.4 -- 10 of 17 -- 11 representation or warranty had been made concerning the use to which the property can lawfully be put. 26 [24] The evidence in relation to Mobil’s intention, considered as a whole, does not lead to a different conclusion to the one suggested by a consideration of the circumstances on the site during the relevant period. [25] The cessation of trade was not simply a temporary interruption. Trade was ceased consequent upon Mobil’s decision, on economic grounds, to close the site with the intention of not using it again for service station purposes. The closure was, in that sense, permanent. The site was held, in its disused state, for a not inconsiderable period. The service station use was not actively preserved. Service station operations did not resume and the site was not refurbished or redeveloped for service station use. At some point it was put on the market. Mobil’s actions appear to have been in contemplation of sale. The evidence as a whole does not satisfy me that the property was specifically marketed or sold for service station use, albeit that the ultimate purchaser wished to use it for that purpose. Indeed, the evidence is to the effect that sites of this kind were marketed and sold to achieve the highest price, whatever the subsequent purchaser wanted to develop on the land, subject to limited specified restrictions. [26] The facts of this case are quite different from those in Leeming v City of Port Adelaide (No 2)27 , to which I was referred. There the circumstances, which were described as “unusual”, were sufficient to justify a conclusion that there had been no abandonment or discontinuance notwithstanding an “unquestionably protracted” interruption of on-site activity, of some three years, from the time one lessee vacated to the time the land was sold to a company wishing to resume operations. 26 Clause 5.2(c) 27 (1987) 62 LGRA 296 -- 11 of 17 -- 12 [27] The land in question in Leeming’s case was improved with a factory which had been custom-built and always used as a meat processing works. The meatworks were leased to Freeze-Pak, whose lease came to an end in 1981. Pursuant to an agreement with the landlord, the lessee retained title to the tenant’s fixtures and fittings. When that company gave up possession at the expiration of the lease, the landlord did not require Freeze-Pak to remove those fixtures and fittings. On the contrary, it was agreed that they would remain on the premises to be sold to an incoming tenant. Thereafter, Freeze-Pak began negotiations for a new lease. Towards the end of 1981, a mortgagee entered into possession and thereafter instructed a real estate agency to offer the premises for sale by auction. The premises were advertised for sale as “a modern meat processing factory”. Freeze- Pak came to an agreement with the mortgagee in relation to its fixtures and fittings. It was obviously in the interests of the mortgagee as well as Freeze-Pak that the premises be sold, if possible, for the purpose for which they had always been used. The first real estate agent was unsuccessful and others were appointed, but faired no better. [28] In late 1982, the land became designated as “residential”. In August 1983 the mortgagee in possession itself went into liquidation. Mr Leeming was appointed as liquidator. He instructed another firm of agents to sell the premises, still as a meatworks, which was their highest and best use. In December 1983 Freeze-Pak expressed interest in reopening the premises as a meatworks and made a detailed submission to the council in support of that proposal. The council took the view that the reopening would be prohibited. The matter was taken up by the solicitors for the liquidator. At about the same time, negotiations commenced with another company, which resulted in a contract of sale in August 1984, which was subject to -- 12 of 17 -- 13 confirmation of the entitlement to use the land for the purpose of a meat processing factory. [29] In dismissing an appeal against the making of a declaration that the use had not been discontinued for a period exceeding two years, King CJ (with whom Bollen and Von Doussa JJ agreed), drew attention, in particular, to the fact that: “The premises remained equipped as a meatworks and all concerned appeared to have intended that there would be a resumption of operations as a meatworks unless per chance there appeared a satisfactory purchaser who wished to use the premises for some other purpose”. [30] The same could not be said with respect to the service station use of the subject site. [31] It might be that there was never an intention to relinquish the right for the site to be used as a service station, but that is not the test. It is understandable that, having decided to close the site, Mobil would wish to ascertain the extent of site contamination with a view to fixing its liability for remediation. That would be a prudent step whatever its future use might be. It is also understandable that, in disposing of the site, Mobil would fix its liability by reference to what would have been required had its previous service station use been continuing as at the contract date, but that does not establish an intention that the use be continued. That the site assessment may not have been able to have been carried out while the service station operation continued, does not prevent a conclusion that the use has been abandoned. [32] There may well be circumstances where there is a temporary cessation of trade, some demolition works and the removal of equipment and the like for a sufficient time to enable a site investigation to be undertaken as a step in a strategy for a site to be remediated, refurbished or rebuilt and returned to service station operation, whether by Mobil or another. A conclusion of abandonment would not necessarily -- 13 of 17 -- 14 be drawn in those circumstances, notwithstanding what an examination of the site activities would, at first, appear to suggest. I am not satisfied that is the case here. [33] The service station operation ceased consequent upon a decision that it be closed for economic reasons, with the intention that Mobil not again operate it as a service station and with no proposal for it to be operated as a service station by anyone else. It might be that the prospect of a purchaser redeveloping the site so that it might, once more, be operated as a service station at some future time, was within the contemplation of Mobil, but that was only a possibility. The site was then held, in a disused state, for a considerable period, before finally being disposed of for whatever use a purchaser wished, subject to some limited restrictions. The steps taken by Mobil in the meantime appear to have been prudently taken with a view to disposal of the vacant site. [34] While Mobil might not have done anything to prevent the possibility of subsequent redevelopment of the site for service station purposes and while the ultimate purchaser wishes to use it for that purpose, I am not satisfied that the steps taken by Mobil were simply towards the continued use of the site for service station purposes. Further, the evidence falls short of giving a full explanation of the period for which the site was held in its disused state, given Mr Burge’s inability to say for how long the site had been closed before steps were taken with respect to the site assessment, how long those steps took or specifics in relation to the instructions to market the site. [35] I am, on the whole of the evidence, left unpersuaded that, in the relevant period, there was simply an interruption or suspension in activity in respect of a continuing use. It seems to me that a reasonable person, apprised of all of the facts, would conclude that the redevelopment of the site, at this stage, for service station -- 14 of 17 -- 15 purposes, would constitute the re-establishment of an abandoned use. The evidence of intention, relied on by the applicant, has failed to persuade me to the contrary. [36] I have reached the stated conclusion on the assumption that the subject site continued to be operated as a service station until late 2002. When the matter was argued on 27 October 2005, it was on the agreed basis that trading ceased in 2000. Subsequently, on 8 December 2005, the applicant sought leave to withdraw its admission in respect of the agreed fact and to adduce further evidence, in the form of an affidavit by Mr McPherson. The application was opposed by the respondent, essentially on the ground that, while it would suffer no specific prejudice by reason of the grant of leave, the applicant should, in the circumstances, be held to its decision to proceed on the basis of the agreed fact. [37] When the matter came on for hearing on 27 October 2005, it was pointed out that although Mr Burge, in his affidavit, had said that Mobil ceased trading from the site on 30 November 2002, he also purported to adopt the contents of Mobil’s lawyer’s letter of 6 May 2005, in which it had been said that trading from the site ceased in or about October 2002. Somewhat confusingly, the same letter had said that Mobil had not commenced its Australia wide evaluation of the service station network until early 2001. It emerged that Mr Burge did not have personal knowledge of the date trading ceased. After an adjournment, in order to allow the applicant’s counsel to take instructions, the court was informed: “My instructions are to proceed today. We’ve done the best we can with Mobil, we think. On the basis that the – there’s no further evidence that’s clearly available we’re prepared to admit that it closed – the service station closed in October 2000 and proceed on that basis. I understand my learned friend is happy with – to agree with that and then proceed.” [38] The application to call further evidence, at variance with that agreed fact, was supported by an affidavit of the applicant’s solicitor, who deposed that it was not -- 15 of 17 -- 16 until 31 October 2005 that he was provided, by Mobil’s solicitor, with Mr McPherson’s name and contact number. This is not a case of a conscious decision not to call evidence which was, at the time, known to exist. [39] The solicitor’s affidavit otherwise contains details of his endeavours to obtain information and evidence through Mobil’s solicitor whom, he thought, would provide him with sufficient evidence. On that basis, he “did not think it was necessary to undertake non-party discovery of Mobil given it was cooperating with my client and further, I was reluctant to do so as I did not want to create an adversarial relationship with Mobil by serving it with court documents, given its cooperation”. Ultimately, on 24 October 2005, Mobil’s solicitor informed Benter’s solicitor that “Mobil did not want to be involved in the application as it saw no benefit in doing so”, but passed on the contact details of Mr Burge. [40] The affidavit is not specific with respect to inquiries made, prior to 27 October 2005, in relation to the date of closure. The first mention of a specific inquiry, in that regard, relates to a telephone conversation on 28 October 2005. It was only a matter of a few days later that the information concerning Mr McPherson was provided. [41] The affidavit provides some explanation for the sequence of events, but leaves me short of being satisfied that all reasonable steps were taken to ascertain evidence, on this issue, prior to the hearing on 27 October 2005. That however, does not necessarily dictate that the application for leave should be refused. [42] Counsel for the respective parties referred me to the authorities on seeking leave to withdraw admissions and also to those on seeking leave to adduce further evidence. -- 16 of 17 -- 17 [43] It is probably unnecessary for me to resolve this issue, since it would not change the final conclusion. Proceeding on the previously agreed fact would only serve to reinforce the conclusion already reached. I am however, prepared to grant leave. The application was made prior to judgment. It relates to relevant evidence which the applicant did not know to exist as at the hearing on 27 October 2005. The respondent is not prejudiced by the grant of leave. While pre-trial investigations could have been more diligent, I would be prepared, in all the circumstances, to grant leave. -- 17 of 17 --