AMP Capital v Tim Shellshear and Associates Pty Ltd

[2012] NSWLEC 165

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

AMP Capital v Tim Shellshear & Associates Pty Ltd & Anor [2012] NSWLEC 165

Hearing dates:

3 - 4 July 2012

Decision date:

18 July 2012

Jurisdiction:

Class 1

Before:

Lloyd AJ

Decision:

Orders:

1) The summons is dismissed.

2) The question of costs is reserved.

3) The six volumes of Court Books may be

returned.

Catchwords:

APPEAL - decision of commissioner - construction of planning instruments - alleged errors of law - whether commissioner took into account irrelevant considerations, or failed to take into account relevant considerations - whether commissioner's decision illogical, irrational or manifestly unreasonable - adequacy of reasons.

Legislation Cited:

Interpretation Act 1987 s 34
Land and Environment Court Act 1979,
s 56A
Warringah Local Environmental Plan 2000
Warringah Local Environmental Plan 2011

Cases Cited:

Abret v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223

Attorney General (NSW) v Quin (1990) 170 CLR 1

Azriel v NSW Land and Housing Corporation [2006] NSWCA 372

Beale v Government Insurance Office of New South Wales

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 365

Bruce v Cole (1998) 45 NSWLR 63

Carstens v Pittwater Council [1999] NSWLEC 249

Cartier Holdings Pty Ltd v Newcastle City Council [2001] NSWLEC 170, 115 LGERA 407

City of Enfield v Development Assessment Commission [2000] HCA 5 (2000) 199 CLR 135

Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138

Centro Properties Ltd v Warringah Council [2003] NSWLEC 17

Corporation of the City of Enfield v Development Assessment Commission

D'Amore v Independent Commission Against Corruption [2012] NSWSC 473

Fabcot Pty Lyd v Hawkesbury City Council (1997) 93 LGERA 373

Fast Buck$ v Byron Shire Council (1999) 203 LGERA 94

Guideline Drafting and Design Pty Ltd v Marrickville Municipal Council (1988) 64 LGRA 275

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378

Khan v Minister for Immigration & Ethnic Affairs [1987] FCA 457, (1987) 14 ALD 291

Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23 (2006) 143 LGERA 277

Mifsud v Campbell (1991) 21 NSWLR 725

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 197 CLR 611

Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9, (2000) 1999 CLR 343

North Sydney Council v Ligon 302 Pty Ltd (1985) 87 LGERA 435

Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205, 144 LGERA 119

Randwick Municipal Council v Crawley (1986) 60 LGRA 277

Reg v District Court; Exparte White (1966) 116 CLR 644

Segal v Waverley Council [2005] NSWCA 310, 64 NSWLR 177

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

South West Water Authority v Rumble's [1985] AC 609

Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449

Swift v SAS Trustee Corporation [2010] NSWCA 182

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2002] NSWLEC 150

Waterford v The Commonwealth (1987) 163 CLR 54

Weal v Bathurst City Council [2000] NSWCA 88

Wilson v State Rail Authority [2010] NSWCA 198

Category:

Principal judgment

Parties:

AMP Capital Investors Limited (Appellant)
Tim Shellshear & Associates Pty Ltd (First Respondent)
Warringah Council (Second Respondent)

Representation:

Counsel
Mr P C Tomasetti SC/Mr N M Eastman (Appellant)
Mr R P L Lancaster SC (First Respondent)
Ms J A Reid, Solicitor, (Second Respondent)
Solicitors
Gadens Lawyers (Appellant)
Freehills (First Respondent)
Wilshire Webb Staunton Beattie (Second Respondent)

File Number(s):

10452 of 2012

Judgment

1. On about 6 July 2011 Tim Shellshear & Associates Architects Pty Ltd made a development application to Warringah Council for a Medical Centre and Day Surgery Building at 10 -12 Dale Street, Brookvale. The application was made on behalf of Primary Health Care, which presently operates a medical centre within the Warringah Mall nearby, but whose lease within the mall is soon to expire.

1. A development assessment report prepared by two officers of the council recommended that the application be approved. The recommendation was supported by the council. An independent hearing was convened by the Council's Development Assessment Panel, which also recommended that the application be approved. The application was considered by the Sydney East Regional Planning Panel exercising the powers of the council on 7 December 2011, which determined (by majority) to refuse the application for the following reasons:

(a) The use will be a prohibited development under the new

Warringah Local Environmental Plan ("LEP 2011"); and

(b) the use is inconsistent with the Desired Future Character

under the existing Warringah Local Environmental Plan ("LEP

2000").

The minority (Dr. John Roseth) voted to accept the recommendation of the assessment report to approve the application for the following reasons:

(a) The use is not antipathetic to the current character or

the Desired Future Character of the area; and

(b) he places major weight on the public benefit of a new

medical centre.

1. Tim Shellshear & Associates appealed against the Panel's determination. AMP Capital Investors Limited is a part owner of the Warringah Mall. AMP was granted leave by the court to be joined as a party to the appeal. The appeal was heard by Commissioner Morris, who upheld the appeal and granted development consent. AMP now appeals against the decision of the commissioner under s 56A of the Land and Environment Act 1979, such an appeal being limited to a question of law.

1. By its summons commencing the appeal AMP alleges numerous errors of law, the details of which are set out below. Moreover, in its lengthy and detailed written submissions and in its extensive oral submissions, AMP's counsel trawled through the evidence of it's expert witness and subjected the commissioner's judgment to a detailed scrutiny and analysis of almost every word and phrase, as if it had been written by a lawyer.

1. I observe at the outset that it has been long settled that a "fine-tooth comb" approach should not be employed when examining decisions of technical commissioners for errors of law : Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138, Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 283, Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Moreover, it would be wrong for the court on an appeal such as this to examine the decision as if it were written by a lawyer : Brimbella at 368, per Priestley JA, (Kirby P and McHugh JA concurring), Fast Buck$ v Byron Shire Council (1999) 203 LGERA 94 at 98, per Handley JA. In North Sydney Council v Ligon 302 Pty Ltd (1985) 87 LGERA 435, Kirby P (at 442) warned against examining reasons in an overly pernickety way: see also Carstens v Pittwater Council [1999] NSWLEC 249. In Brimbella, Kirby P noted (at 368) that the parliament has specifically envisaged a tribunal which includes lay assessors and continued : "It would be quite wrong in my opinion, for this court to examine their decisions as if they were written by a lawyer".

1. Moreover, any error must be more than an error at some stage of the decision making process. It must be an error that affects the ultimate decision : Minister for Immigration and Multicultural Affairs and Thiyagarajah [2000] HCA 9, (2000) 1999 CLR 343. In another way, an error will only vitiate a decision if it materially affects the decision : Guideline Drafting and Design Pty Ltd v Marrickville Municipal Council (1988) 64 LGRA 275. The court has re-stated these principles many times, and it is necessary that they be kept in mind when considering the various grounds of appeal now raised by AMP.

1. There are further principles to be kept in mind. AMP alleges that the commissioner erred in law in that the whole of her decision is manifestly unreasonable or irrational. Moreover, many of the separate grounds relied upon by AMP are said to describe findings and conclusions made by the commissioner that are either illogical, irrational or manifestly unreasonable. I note, however, that many of the findings and conclusions that are attacked are clearly findings and conclusions of fact. There is no error of law in simply making a wrong finding of fact : Waterford v The Commonwealth (1987) 163 CLR 54 at 77, City of Enfield v Development Assessment Commission [2000] HCA 5 (2000) 199 CLR 135 [44], [59], Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 197 CLR 611 at 654 [138]. In Reg v District Court; Ex parte White (1966) 116 CLR 644, Menzies J said (at 654) :

"Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error law".

1. The test for illogicality or irrationality was authoritively restated by Crennan and Bell JJ in the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 :

"[13] ... But the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion".

...

[135] ... whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

1. Importantly, Crennan and Bell JJ had earlier said at [96] :

"Nothing said in these reasons sanctions the deployment of 'illogicality' or 'irrationality' to achieve what is sometimes called merits review.

1. Although SZMDS arose in a federal context its principles have been followed and applied in this State in a non-federal context : D'Amore v Independent Commission Against Corruption [2012] NSWSC 473, per McClellan CJ at CL.

1. The test for manifest unreasonableness is stringent : Weal v Bathurst City Council [2000] NSWCA 88 at [27], per Mason P. As Mason P also observed, the decision must amount to an abuse of power : Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36; or be so devoid of plausible justification that no reasonable person could have taken that course : Minister for Immigration and Ethnics Affairs v Teoh (1995) 183 CLR 273 at 290. In Wednesbury, it was held that the decision must amount to "something so absurd that no sensible person could ever dream that it lay within the powers of the authority" : Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 at 229, per Lord Greene MR.

1. Before turning to the commissioner's decision and to the grounds of appeal now advanced by AMP, it is relevant to note that when the development application was made in July 2011 the applicable planning instrument was the Warringah Local Environmental Plan 2000, under which the subject land was in Locality G10. On 9 December, however, Warringah Local Environmental Plan 2011 commenced under which the subject land was in Zone IN1 General Industrial, so that when the notice of determination of the development application was issued on 13 December 2011 the latter instrument applied. Clause 1.8A of the latter instrument, however, contains a savings provision as follows:

"1.8A - Savings provisions relating to development applications.

If a development application has been made before the commencement of this Plan in relation to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced".

The Commissioner's Judgment:

1. The various errors of law which AMP says are found throughout the commissioner's judgment are best understood by an overview of that judgment.

The commissioner commences by describing the development application at [1], and then sets out at [2] AMP's contentions in the appeal:

• "the development being prohibited under Warringah LEP 2011, and whether it is consistent with the [IN1] General Industrial Zone under that Plan",
• "whether the development complies with the Desired Future Character of the locality pursuant to Warringah LEP 2000",
• "whether the site is suitable for the development",
• "whether the proposal is consistent with the State Government's strategic planning policies and is in the public interest".

1. In paragraphs [4] - [9] the commissioner describes the background to the proposal and the proposed development itself. At [9] she notes that the medical centre will employ approximately 40 staff on a full-time basis during Monday to Friday, with specialist doctors visiting on a regular basis seven days a week.

1. At paragraph [10] to [14] the commissioner describes the site and the kinds of development presently existing in the locality.

1. At [15] to [26] the commissioner describes the planning controls under firstly, Warringah LEP 2000 and secondly, under Warringah LEP 2011. (There is no suggestion by AMP that the commissioner misstates these controls).

1. At [27] the commissioner re-states the issues which she had earlier noted at [2].

1. At [28] to [53] the commissioner summarises in a general way the expert evidence and contentions of Mr N Ingham for AMP and of Mr H M Sanders for the applicant.

1. At [54] the commissioner re-states, for the third time, the issues for determination, but does so in a slightly different way :

"the weight to be given to the provisions of LEP 2011; whether the development is consistent with the DFC "[Desired Future Character]" and all other relevant provisions of LEP 2000; whether the site is suitable for the proposed development and whether the grant of consent would be in the public interest".

I infer that the changed way in which the Commissioner stated the issue is a consequence of the way in which the parties presented their arguments.

1. At [55] to [72] the commissioner sets out her conclusions and findings, resulting in the upholding of the appeal and the granting of consent to the development.

The Grounds of Appeal

1. AMP by its summons relies upon 11 grounds which it says demonstrates errors of law by the commissioner. I now consider each ground in turn.

1. Ground 1: a general allegation that the commissioner "erred in law in that the whole of her decision is manifestly unreasonable or irrational supported by the grounds set in paragraphs 2 to 11". Nothing more need be said about this ground, which is dependent upon AMP succeeding on the following grounds.

1. Ground 2: the commissioner's finding at [14] is an error of law in that she wrongly characterised certain existing industrial land uses in the locality as uses for non-industrial purposes.

1. A fair reading of paragraph [14], however, shows that in her description of the various land uses in the locality, the commissioner does not ascribe a non-industrial use to existing industrial uses. The opening words of paragraph [14] are : "In addition to a number of light industrial uses, the site is in proximity to a range of premises used for non-industrial purposes, including ...". At [64] the commissioner acknowledges that some of these uses, "whilst not ancillary to industrial or warehouse uses, are uses that service the locality and would not be inconsistent with the area remaining an industrial and employment centre" having previously noted at [63] that an employment centre was a permissible use.

1. In any event, by recording the existing land uses in the locality, the commissioner is simply recording findings of fact. Even if it can be said that the findings of fact are in error, this does not raise a question of law : Waterford v The Commonwealth, City of Enfield v Development Assessment Commission, Minister for Immigration and Multicultural Affairs v Eshetu, noted at [7] above. Moreover, even if it be an error of law, the error must be more than an error at some stage of the decision making process - it must be an error that materially affects the decision : Minister for Immigration and Multicultural Affairs v Thiyaparajah, Guidelines Drafting and Design Pty Ltd v Marrickville Municipal Council, noted at [6] above. I thus reject this ground of appeal.

1. Ground 3: the commissioner's finding at [20] (to be read with [15]) is an error of law, in finding at [66] that the development was consistent with the Locality Statement even though it was development that was not for industries and warehouses and ancillary service uses.

1. This somewhat circumlocuted ground requires an understanding of the relevant planning controls.

1. The commissioner correctly states, at [15], that at the time the application was lodged the site was within the G10 Brookvale Industrial West locality as defined under Warringah LEP 2000. That instrument divides the council's area into various localities. An appendix to the LEP sets out a series of individual locality statement for each locality. The role of locality statements is described in cl 12 of the Plan:

" 12 What matters are considered before consent is granted?

(1) Before granting consent for development the consent authority

must be satisfied that the development is consistent with:

(a) any relevant general principles of development control in Part 4, and

(b) any relevant State environment planning policy described in Schedule 5 (State policies).

(2) Before granting consent for development, the consent authority

must be satisfied that the development will comply with:

(a) the relevant requirements made by Parts 2 and 3, and

(b) development standards for the development set out in

the Locality Statement for the locality in which the

development will be carried out.

(3) In addition, before granting consent for development classified

as:

(a) Category One, the consent authority must consider the

desired future character described in the relevant

Locality Statement, or

(b) Category Two or Three, the consent authority must be

satisfied that the development is consistent with the

desired future character described in the relevant

Locality Statement,

but nothing in a description of desired future character creates a

prohibition on the carrying out of development.

Note. Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act.

To assist with understanding: Category One development is development that is generally consistent with the desired future character of the locality. Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally inconsistent with the desired future character of the locality".

1. The note at the end of cl 12 does not form part of the plan, as appears from cl 6 (2) :

"Notes, copies of charts and diagrams inserted in this plan, and the lists of its contents are explanatory and do not form part of this local environmental plan. They are provided to assist understanding. However, the Dictionary and Appendices are part of this plan".

1. The Locality Statement for Locality G10 Brookvale Industrial West states :

"LOCALITY G10 BROOKVALE INDUSTRIAL WEST

DESIRED FUTURE CHARACTER

The Brookvale Industrial West locality will remain an industrial and employment centre incorporating industries, warehouses and ancillary service uses.

New development or significant redevelopment will be designed to incorporate landscaping to soften the visual impact of industrial buildings and their associated parking and other paved areas as viewed from the street.

At the interface of the locality with adjoining and adjacent residential areas, buildings will be sited and designed and the use of land managed to minimise interference with the amenity of such residential areas.

Allotments are to be consolidated where necessary to ensure the development of one allotment will not render an adjoining allotment unsuitable for development.

LAND USE

Category One

Development for the purpose of the following:

• industries

• warehouses

Category Two

Development for the purpose of the following:

• brothels

• child care centres

• community facilities

• hire establishments

• housing (where used in conjunction with industries or warehouses)

• motor showrooms

• offices

• places of worship

• recreation facilities

• registered clubs

• restaurants

• shops (those which sell equipment, machinery or materials used by an industry or trade, including builders' supply and hardware establishments, or which sell goods manufactured on the same land as the industry producing them)

• service stations

• vehicle body repair workshops

• vehicle repair stations

• other buildings, works, places or land uses that are not prohibited or in Category 1 or 3

Category Three

Development for the purpose of the following:

• agriculture

• animal boarding or training establishments

• bulky goods shops

• business premises

• entertainment facilities

• further education

• health consulting rooms

• hospitals

• hotels

• housing, unless this Locality Statement provides otherwise

• medical centres

• primary schools

• retail plant nurseries

• shops, unless Locality Statement provides otherwise

• short term accommodation

• veterinary hospitals

PROHIBITED DEVELOPMENT

Development for the purpose of the following is prohibited within this locality:

• extractive industries

• heliports

• housing for older people or people with disabilities

• potentially hazardous industries

• potentially offensive industries

• Canal estate development is also prohibited within this

locality.

1. At [15] the commissioner sets out the desired future character statement for this locality. At [17] the commissioner states:

"The proposed development seeks to operate a medical centre pursuant to the dictionary section of LEP 2000 and accordingly would be classified as a category 3 development".

1. At [20] the commissioner states:

"In addition, before granting consent to Category 2 and 3 development, the consent authority must be satisfied that the development is consistent with the desired future character described in the Locality Statement".

1. In considering this ground of appeal I note that the commissioner's statement at [20] is nothing more than a re-statement of cl 12(3)(b) of the LEP. That is, there is no finding at [20] that the proposed development was consistent with the Locality Statement. In developing the submission, however, AMP refers to the commissioner's finding at [66[:

"Accordingly, I am satisfied that the development would be consistent with and is not antipathetic to the DFC for the G10 Brookvale Industrial West locality".

1. AMP submits that the commissioner erred in law "in finding at [68] that the development was not for industries and warehouses and ancillary service uses". The submission relies upon an assertion that the proposed development was not for an industrial building.

1. I do not accept the submission. The commissioner at [66], was satisfied that the development would be consistent with and is not antipathetic to the desired future character of the relevant locality. That finding was clearly open to the commissioner. Properly construed, the desired future character statement for the locality is as follows: The Brookvale Industrial West locality will remain (1) and industrial and (2) employment centre ... . This was the construction that the commissioner adopted at [63]. A reading of the commissioner's judgment as a whole shows that she categorised the proposed development as coming within the term "employment centre", being a desired future character of the locality. In coming to this conclusion the commissioner accepted at [63] the opinion of the applicant's expert witness, Mr Sanders. She rejected the contrary opinion of AMP's expert witness, Mr Ingham, whose view was that the area should be used only for industrial or warehouse purposes or for service uses that are ancillary thereto. As to Mr Ingham's opinion, the commissioner said at [63]: "I do not agree and accept the opinion of Mr Sanders that the DFC contemplates a wide range of non-industrial uses and this is apparent from the council's planning approach since the adoption of LEP 2000". That is, the commissioner accepted that the intention of the plan was that this locality was to have both industrial and employment uses (and uses ancillary thereto). The commissioner's conclusion in preferring the evidence of Mr Sanders, at [63], and coming to the conclusion that she did at [66] was clearly open to her. There was no legal error into concluding. At [66] the commissioner said: "Accordingly, I am satisfied that the development would be consistent with and is not antipathetic to the DFC for the G10 Brookvale Industrial West locality".

1. AMP also asserts that the commissioner, in coming to the conclusion that she did, took into account an irrelevant consideration at [64]. That paragraph in the commissioner's judgment is as follows:

"This is particularly demonstrated in the consents provided in Exhibit A1 which, in addition to warehousing and industrial uses, have provided for the occupancy of 18-22 Dale Street, the allowance of a Category 3 shop (Salvation Army premises 11 Dale St) and the use of premises for fitness centres, a youth centre, recreation facility and children's party centre within the G10 locality. These uses, whilst not ancillary to industrial or warehouse uses, are uses that service the locality and would not be inconsistent with the area remaining an industrial and employment centre. I consider that the proposed medical centre would also be a development that services the locality and, like the recreation facility and the other non-industrial uses described above, would be used by both occupants of the industrial and warehouse developments and other developments within the locality but also draw from a larger catchment. I do not consider the DFC contemplates any constraint on the area from which persons attending any of the businesses within the G10 locality are drawn".

1. According to AMP's submission, it was an irrelevant consideration in determining the desired future character of the locality to have regard to what the council might have previously approved. Again I can find no legal error in this approach. The statement of the desired future character of the locality states that it "will remain" an industrial and employment centre. That is, the statement assumes that the locality already has the character of an industrial centre and an employment centre. At paragraph [64] the commissioner makes a finding of fact as to what kind of developments already lawfully exist in the locality and which the LEP intends to maintain.

1. AMP next asserts that the commissioner asked the wrong question in relation to the desired future character. The submission, as I understand it, focuses in the phrase "incorporating industries, warehouses and ancillary service uses", and that "ancillary service uses" are to be read as ancillary to "industries and warehouses". It is then submitted that the medical centre, as an independent use, is intended to offer complex medical services to the general community and only coincidentally to people working in the Brookvale Industrial West locality; that is, it is not intended to be an ancillary service use.

1. It is far from clear to me what AMP's complaint is. The development was approved by the commissioner as an employment centre being a medical centre that would have 40 permanent employees as well as visiting medical specialists. AMP's submission does not, it seems to me, raise any question of law.

1. Finally in this aspect of the appeal, AMP submits that the commissioner asked and answered the wrong question or at least took into account an irrelevant consideration, at [65]. The paragraph of the judgment is as follows:

"I am satisfied that the design of the development incorporates landscaping that will soften the visual impact of the building. The site is not at an interface with a residential area, the closest residential area being to the north however, the activities to be undertaken will not adversely impact on the amenity of that area. The development would result in the consolidation of four adjacent allotments and there is no evidence that this would render any adjoining allotment unsuitable for development".

1. AMP submits that the fact that the design of the medical centre incorporated landscaping was not a relevant consideration : the desired future character statement states that landscaping will be incorporated to soften the visual impact of industrial buildings, but this is not industrial development. I have to say that this submission demonstrates an extraordinarily pernickety approach to the judgment, which as noted at [5] above is to be avoided. It is a legitimate merit consideration, which is far from irrelevant. It has no legal consequence and does not affect the ultimate decision in a material way.

1. Ground 4: the commissioner's finding at [58] - [59] is an error in law. Paragraph s [58 - [59] follow a reference by the commissioner to the aims and objectives of Warringah LEP 2011 in paragraph [57], and are as follows:

"[58] In determining whether the proposed development is antipathetic to or does not detract from those objectives or is inconsistent with or accords to the planning controls, I prefer the evidence of Mr Sanders who, whilst adopting a broad approach, has demonstrated that the development would not be contrary to those planning objectives. I do not accept Mr Ingham's opinion that the objectives require what would in effect be the sterilisation of that land for industrial and warehouse uses and ancillary service uses that only service the immediate locality.

[59] The aims of the LEP include the recognition of the role of Brookvale as a major centre and employment area for the sub-region, providing for a balance of development that caters for, amongst other things the welfare needs of residents and visitors maintaining a diversity of employment and services. It anticipates that development will result in quality urban design and does not have an adverse effect on streetscapes, public places or the natural environment. There is no dispute that the proposal satisfies these requirements and all of the relevant planning controls".

1. AMP submits that in these paragraphs the commissioner took into account an irrelevant consideration and/or demonstrates irrationality or manifest unreasonableness. The error is said to be in treating the aims "as the ends to be achieved in the LEP and not the means by which they are to be achieved". AMP submits that the commissioner erred in taking the aims into account in determining the weight to be given to the 2011 LEP. AMP relies upon cl 2.3(2) of the 2011 LEP:

"The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within a zone".

1. As I understand it, the submission is that cl 2.3(2) of the 2011 LEP requires the consent authority to have regard to the objectives of the relevant zone, but in taking into account the aims of LEP as a whole the commissioner took into account an irrelevant consideration. If that is the submission then it is one that I do not accept. The taking into account of the aims of the LEP is not an irrelevant consideration. No authority was cited in support of the submission. Moreover, cl 2.3(4) states : "This clause is subject to the other provisions of this Plan". One of these provisions is the aims of the instrument.

1. It is correct, as AMP submits, that the core relevant provision in the 2011 LEP is cl 2.3(2). At [61] the commissioner expressly had regard to the objectives for development in the relevant zone and found that the proposed development was consistent with them. That is, the mandatory relevant consideration under the 2011 LEP which encompasses the means by which the aim of the plan are to be achieved, was satisfied. This ground does not demonstrate any error of law.

1. Ground 5: the commissioner's finding at [58] is an error in law in finding that Mr Ingham's view that the objectives in the relevant zone in the 2011 LEP, the IN1 Zone, would sterilise the land for industrial and warehouses uses and ancillary uses that only service the immediate locality.

1. AMP submits that this was not Mr Ingham's view, that there was no evidence to that effect and neither were any submissions advanced to that effect. The error of law, as I understand it, is said to be that it was irrational for the commissioner to reason that acceptance of Mr Ingham's opinion would in effect be the sterilisation of the land for industrial and warehouse uses and ancillary service uses that only service the immediate locality.

1. I find no error of law in paragraph [58] of the commissioner's judgment.

As the respondent pointed out the sentence is merely the commissioner's characterisation of Mr Ingham's view, as appears from the statement of "what would be in effect ...". That characterisation was clearly open to the commissioner particularly in view of the narrow construction of the objectives of the IN1 Zone advanced by Mr Ingham, who had emphasised the first objective - "to provide a wide range of industrial and warehouse land uses" and had ignored the objective "to encourage employment opportunities".

1. Ground 6: at [60] - [61] the commissioner erred in law by finding that the objectives of the IN1 Zone are to be read as a whole.

1. The objectives of the IN1 Zone in the 2011 LEP are as follows:

• To provide a wide range of industrial and warehouse land uses.

• To encourage employment opportunities.

• To minimise any adverse effect of industry on other land uses.

• To support and protect industrial land for industrial uses.

• To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

• To enable a range of compatible community and leisure uses.

• To maintain the industrial character of the land in landscaped settings.

1. Paragraphs [60 and [61] of the commissioner's judgment are as follows:

"[60] With regard to the objectives of the IN1 zone, I also agree with Mr Sanders that the objectives are to be read as a whole and do provide for non-industrial land uses and that the objective of supporting and protecting industrial land for industrial purposes does not prohibit non-industrial uses. To do so would not allow the satisfaction of the objective that enables a range of compatible community and leisure uses and the provision of facilities and services to meet the day to day needs of workers in the area.

[61] Having regard to the aims of LEP2011 and the zone objectives, I find that the proposed development is not antipathetic or inconsistent with those objectives and will not detract from the achievement of those objectives nor undermine the planning intent of the controls contained within that plan. Whilst I give the plan significant weight because it has commenced, and in particular give consideration to the fact that the proposed use would be prohibited, that weight is not determinative in view of the fact that I have found the proposed development to be consistent with the objectives and planning intent for the locality."

1. AMP cites no authority for the submission that the relevant objectives are not to be read as a whole. On the contrary, it is a well-known principle of construction that the such provisions must always be read in their context : Wilson v State Rail Authority [2010] NSWCA 198 at [12] - [13], per Allsop P. Moreover, Allsop P cited South West Water Authority v Rumble's [1985] AC 609 at 617 per Lord Scarman, "in the context of the legislation read as a whole". The authorities are to the contrary of AMP's submission. The relevant context is the group of the various objectives of the zone. The objectives are not necessarily consistent but reflect the conflicting demands upon development within the area : Abret v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343 at [42]. I reject AMP's submission.

1. Ground 7: the commissioner's finding at [61] was an error in law by being irrational, illogical and/or manifestly unreasonable and/or being based on no evidence.

1. The commissioner's finding at [61] is set out above. In advancing this ground AMP relied upon the principle that a consent authority must give "real consideration" to relevant matters : Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401, and must give "proper, genuine and realistic consideration" to the merit of the matter : Khan v Minister for Immigration & Ethnic Affairs [1987] FCA 457, (1987) 14 ALD 291 at 292.

1. I have noted at [8] - [11] above, however, the off repeated caution with which these principles must be applied. They must not be permitted to encourage a slide into impermissible merits review : Bruce v Cole (1998) 45 NSWLR 63, Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23 (2006) 143 LGERA 277 at [74] - [79], Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49] - [51], Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45].

1. The commissioner had earlier at [25] set out the aims of the 2011 LEP in full and had set out in full at [26] the objectives of the IN1 zone under that instrument and which she then further considered at [57] - [59]. The onus is, of course, upon the challenger to show that the commissioner's decision is infected with legal error but in these circumstances it cannot be inferred that the opening statement in paragraph [61] - "Having regard to the aims of LEP 2011 and the zone objectives" - was made without those aims and objectives in mind. Moreover, it cannot be said that the findings made by the commissioner in paragraph [61] were made without evidence. The commissioner refers at [58] and [60] to the relevant evidence. There is nothing irrational, illogical or manifestly unreasonable in the commissioner's findings in this paragraph, neither can it be said that she failed to give real consideration to the 2011 LEP in coming to her conclusions. AMP's submissions seem to be an invitation to impermissibly review the merit of the decision.

1. Ground 8: the commissioner's finding at [62] discloses an error of law by failing to take into account a relevant consideration, being strategic planning documents relied upon by Mr Ingham, and failing to give reasons for rejecting or accepting Mr Ingham's arguments.

1. Paragraph [62] is as follows:

"[62] There are no contentions that the provisions of clause 12 are not met, other than whether the development is consistent with the G10 DFC. The State Policies referred to in the second respondent's [ie AMP's] contentions are not those policies referred to in Schedule 5 of the LEP 2000. I note that the council had considered the building height control and found the height of the proposed development to be acceptable".

1. The reference to cl 12 is a reference to the clause in the 2000 LEP. AMP's submission seems to be a complaint that Mr Ingham's arguments were not accepted and the commissioner failed to give reasons for rejecting or accepting those arguments, being a principal contested issue, and her failure to do so is an error of law.

1. The facts do not support AMP's submission. The commissioner had earlier, at [34], [40], [47] and [50], noted Mr Ingham's arguments in this respect:

"[34] Mr Ingham says that the approval of the proposed use would not "support and protect" the industrial land for industrial uses, and will take up land intended to be used for industrial purposes and potentially make it more difficult for industrial uses to develop in the area. He says this is contrary to be Employment Lands for Sydney Study, the draft North East Sub-Regional Strategy and the Metropolitan Plan for Sydney 2036. He says, the exclusion of a number of uses, which were permissible within the G10 localities from being permissible when LEP2011 was made, lends weight to the conclusion that the Minister for Planning and Warringah Council were implementing the policy directions set out in those strategic planning documents".

...

"[40] In assessing the DFC for the G10 locality, Mr Ingham says that the proposed use is not consistent with the expressed strategic planning position as it is not an industry, warehouse or an ancillary service use and whilst he contemplates circumstances where a use other than those discrete uses could be considered compatible, he does not see such a circumstance applying which could justify the proposed medical centre being within this zone on this site. He says "incorporating" could be translated as "embodying" or "combining into one body" those uses and that it is not intended that a health services facility can be added to those uses which are specified".

...

"[47] This contention also raises strategic planning policies and Mr Ingham maintains that the use of the land or non-industrial purposes is contrary to the relevant strategic planning document referred to in [34] and concludes that LEP2011 had regard to the significance of employment land, provided for the protection of the land used for industry and warehousing, such as is found in the Brookvale G10 locality, and that in prohibiting the proposed health services facility within the IN1 General Industrial zone, LEP2011 gave effect to the Metropolitan Plan. For those reasons he says that approval of the proposed use would undermine the policy directions which have found their way into LEP2011, and with the subject site being on land which is "to be retained for industrial purposes" and being on land with no "potential for investigation for alternative uses" the proposed use can be seen to be in direct conflict with the intentions for the IN1 zone and contrary to the character sought for this locality".

"[50] In Mr Ingham's opinion the strategic metropolitan plans and accompanying documents and LEP2011 reflect the public interest. Because a medical centre is a Category 3 use, a use that he says is generally considered inconsistent with a locality and can only be approved subject to additional information being provided to the consent authority to justify the proposal, and only following an independent public hearing, it is not obvious to him that council had ever considered such uses as appropriate to Dale Street. He does acknowledge that there are a number of uses that would now fall into a Category 3 use however, says they appear to have been in the location for a very long period. He was also aware of a Court approval to allow an "Aldi" supermarket in the G10 locality however distinguished that due to its proximity to Warringah Mall and the fact that a rezoning of the site was under consideration at the time".

1. In these circumstances it cannot be said the policies and strategy documents referred to by Mr Ingham were not taken into account. The statement in the first sentence of paragraph [62] is correct : cl 12(1)(b) of the 2000 LEP requires the consent authority to be satisfied that the development is consistent with "any relevant state environmental planning policy described in Schedule 5". Schedule 5 sets out a list of state policies. Those are, of course, policies that a consent authority was required to consider and are not the policies relied upon by Mr Ingham. That is, at [62] the commissioner refers to the state policies. It is at paragraphs [48] and, in particular, [70] that the commissioner deals with the arguments advanced by Mr Ingham:

"[48] In Mr Sanders' view, none of the relevant, applicable provisions of those strategic planning documents would militate in a deterministic manner against the granting of consent for the proposed development, because he says the proposed development is broadly consistent with the strategic planning objective to focus activity in centres such as the Brookvale-Dee Why Centres, in one of which the site of the proposed development is located, noting that one of the future directions of that centre is to" improve the structure of Brookvale as an integrated retail, office, employment and service centre, exploiting major North-South and East-West bus links which he says, would clearly assist the achievement of this important strategic planning direction. He concludes that a range of non-industrial land uses are permissible with consent in the IN1 zone, which reinforces his view that the retention of all the future use of all properties within all the land is zoned for industrial purposes in LEP2011 simply for "industrial" use is not the direct object of town planning objectives at either the strategic or local level".

...

"[70] I agree that the council's planning instruments are documents that must be considered in regard to contentions that concern the public interest. Having found that the development is consistent with the previous plan (LEP2000) and not antipathetic to the current local environmental plan (LEP2011), I also find that the development would be in the public interest. The fact that the development would now be a prohibited use in the IN1 zone is a matter that I have had regard to however, I do not find this fact determinative. Similarly, having regard to the strategic planning documents referred to by Mr Ingham, I consider, for those reasons outlined above, that the development would not be inconsistent with those directions".

1. As to AMP's submission that the commissioner failed to give reasons for not accepting Mr Ingham's arguments, it must be remembered that the commissioner is not a lawyer and the decision must not be scrutinised as if it were written by a lawyer, as noted at [5] above. The commissioner was appointed on the basis of her qualifications, experience and expertise in the field and was entitled to bring those qualities to the issues that she had to resolve, informed by the evidence. In addition to the principles described at [5] - [7] above, the duty to give reasons does not exist in respect of every matter of fact or law which is raised in argument : Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385. Lengthy or elaborate reasons are not required : Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280. A failure to refer to some of the evidence does not necessarily indicate a failure to discharge the duty to give reasons : Mifsud v Campbell (1991) 21 NSWLR 725 at 728. The duty does not call for resolution of all conflicts of fact, nor does it call for explicit description of every step in a chain of reasoning : Athens v Randwick City Council [2000] NSWCA 83 at [16], Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41].

1. In the present case the reasons given at [70], after a thorough review of the evidence, satisfies the legal requirement to give reasons, and in particular, they deal with the strategic planning documents relied upon by Mr Ingham. As Samuels JA (Gleeson CJ and Priestley JA concurring) said in Strabak v Newton (Court of Appeal, 18 July 1989, unreported):

"In the present case, the reasons are certainly succinct; but that is often to be regarded as a judicial virtue".

1. In the context of the commissioners reasons, considered as a whole, I can find no error of law.

1. Ground 9: the commissioner erred in law in her findings at [63] - [64]. Those paragraphs of the commissioner's judgment are as follows:

"[63] Mr Ingham says that because his search of the council's consent register has not revealed any approvals for Category 3 uses in Dale and Green Streets and the note to clause 12 states that Category 3 uses are generally inconsistent with the locality, the use is not consistent with the DFC for the locality. In his Expert Report, Exhibit B1, I note that he has left the important word "and" from the first sentence of the DFC so that it reads "The Brookvale Industrial West locality will remain an industrial employment centre ......" rather than and "industrial and employment centre" (emphasis added). Much of Mr Ingham's evidence was on the basis of his view being that the area should be used only for industrial or warehouse purposes or for uses, if service uses, that are ancillary to industrial or warehouse uses. I do not agree and accept the opinion of Mr Sanders that the DFC contemplates a wide range of non-industrial uses and this is apparent from the council's planning approach since the adoption of LEP2000. Also, it is important that the note that Mr Ingham relies on does not form part of the plan and, if all Category 3 uses were inconsistent with the DFC then it would not be possible that any of those could be contemplated in a locality under any circumstances. Clearly, this is not the intention of the planning instrument.

"[64] This is particularly demonstrated in the consents provided in Exhibit A1 which, in addition to warehousing and industrial uses, have provided for the occupancy of 18-22 Dale Street, the allowance of a Category 3 shop (Salvation Army premises 11 Dale St) and the use of premises for fitness centres, a youth centre, recreation facility and children's party centre within the G10 locality. These uses, whilst not ancillary to industrial or warehouse uses, are uses that service the locality and would not be inconsistent with the area remaining an industrial and employment centre. I consider that the proposed medical centre would also be a development that services the locality and, like the recreation facility and the other non-industrial uses described above, would be used by both occupants of the industrial and warehouse developments and other developments within the locality but also draw from a larger catchment. I do not consider the DFC contemplates any constraint on the area from which persons attending any of the businesses within the G10 locality are drawn.

1. AMP's submission, as I understand it, is that the commissioner's findings in these paragraphs are based on a misconstruction of the desired future character of locality G10 in the 2000 LEP; are irrational, illogical and not based on facts supported by logical grounds; and are errors in law by construing the desired future character by having regard to development consents granted by the council (at [64]).

1. Nothing in those paragraphs discloses any error of law. The commissioner has not misconstrued the desired future character of the locality, but on the contrary quotes the relevant part of the Locality Statement. AMP's real complaint seems to be that the commissioner preferred the evidence of Mr Sanders to that of its own expert, Mr Ingham.

1. AMP submits that the consents granted by the council to which the commissioner refers in [64] cannot as a matter of law inform the construction of the LEP. However, the commissioner does not construe the LEP by having regard to the development consents. They are described as examples of the range of non-industrial but employment based uses that lawfully exist in the locality. The relevance of this is in the desired future character statement itself : "The Brookvale Industrial West locality will remain an industrial and employment centre ...". (The emphasis is mine). AMP also submits that there was no evidence that any of the consents were granted after the year 2000 and pursuant to the 2000 LEP. That complaint is, however, irrelevant.

1. AMP's principal submission is that the Locality Statement for the G10 Locality requires that any development must be for an industrial and employment centre "incorporating industries, warehouses and ancillary service uses" and that a medical centre as proposed cannot satisfy this description. In my opinion, however, the Locality Statement sets the framework within which the LEP operates. The LEP is intended to operate in a flexible way, as appears from the concluding words of cl 12(3) : "but nothing is a description of desired future character creates a prohibition on the carrying out of development". For example, Category Two development in the Land Use table for the G10 Locality includes "offices", "places of worship", "registered clubs", and "other building works, places or land uses that are not prohibited or in Category 1 or 3". These identified uses are not "industries" as defined in the instrument and show that stand-alone, non-industrial, non-warehouse and non-ancillary service uses may be permitted in the locality. (for a similar approach to the construction of zoning provisions, see Abret v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343 at [41 - [44]). There is no error of law in paragraphs [63] - [64] of the commissioner's judgment.

1. Ground 10: the grounds upon which the commissioner concluded at [66] that the development might to be approved is infected with legal error.

Paragraph [66] of the commissioner's judgment is as follows:

"Accordingly, I am satisfied that the development would be consistent with and is not antipathetic to the DFC for the G10 Brookvale Industrial West locality".

1. AMP submits that : (a) the commissioner found that Mr Ingham's view of the LEP was that the subject site should be used only for industrial and warehouse uses and that he was wrong, whereas there was no evidence that was his opinion; (b) the commissioner's finding that the note at the foot of cl 12 is not part of the LEP and is irrelevant is in error and was, on the contrary relevant by virtue of s 34 of the Interpretation Act 1987; (c) the commissioner was in error in finding that Category 3 uses are intended to be permitted in the locality; and (d) the commissioner found that the development consents referred to inform the proper construction of the LEP, which is an illogical and irrational conclusion.

1. I note, however, that paragraph [66] of the commissioner's judgment is not a conclusion that the development ought to be approved. It is a finding that the development would be consistent with and is not antipathetic to the desired future character for the Locality. The commissioner's conclusion that the development ought to be approved appears subsequently, after a consideration of other matters including the merits of the proposal. The commissioner's conclusion at [66] is but a step on the way to her ultimate conclusion.

1. The submission noted at [71] (a) above does not materially affect the commissioner's ultimate decision and is thus irrelevant : Guideline Drafting and Design Pty Ltd v Marrickville Municipal Council; Minister for Immigration and Multicultural Affairs and Thiyagarajah, noted at [6] above. The thrust of Mr Ingham's evidence was, in fact, that the subject site "should" only be used for industrial and warehouse uses. Moreover, the paragraph refers to a finding of fact, which cannot be an error of law : Minister for Immigration and Multicultural Affairs v Eshetu; City of Enfield v Development Assessment Commission noted at [7] above.

1. As to the submission noted at [71] (b) above, the commissioner had earlier, at [22] set out the text of cl 6(2) of the LEP, which is reproduced at [12] above. There is no finding, however, in the commissioner's judgment that the note is irrelevant. The commissioner does say in paragraph [63] in the context of Mr Ingham's evidence that the note that Mr Ingham relies on does not form part of the plan, which is, of course, correct.

1. As to the submission noted at [71](c), again there is no error in the commissioner's statement at [66]. The commissioner had earlier noted at [63] that : "if all category 3 uses were inconsistent with the DFC then it would not be possible that any of those could be contemplated in a locality under any circumstances. Clearly this is not the intention of the planning instrument", particularly since the note to cl 12 states that "Category Three development is development that is generally inconsistent with the desired future character of the locality" (my emphasis). At [67], which of course, immediately follows [66], the commissioner refers to the fact that Category 3 development is also governed by cl 15, which states that "consent may be granted to development classified as Category Three" provided that the requirements set out in that clause are satisfied. None of this demonstrates any legal error.

1. Ground 11: the commissioner erred in law by a failure, disclosed in [68] to [70], to consider the reasons for the Panel recommendations, when Mr Ingham did that exercise, such failure being irrational, manifestly unreasonable and a failure to take account of a relevant consideration.

1. The findings and recommendations of the independent hearing panel and the reasons for its recommendations were not raised by AMP as issues in the Statement of Facts and Contentions which it had filed, and which identified the issues to be determined by the commissioner. In Segal v Waverley Council [2005] NSWCA 310, 64 NSWLR 177 it was held by Tobias JA (Beazley and Basten JJA concurring) that a commissioner of this court is only "bound to address the principal contested issues that were joined between the parties", at [44] and [49], or "to principal, central or critical issue the subject of the contest between the parties", at [45], [69] and [92]. Moreover, I have noted above at [62] that the duty to give reasons does not exist in respect of every matter of fact or law that has been raised in argument : Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd, at 385 - 386. In these circumstances it is difficult to see how there has been an error of law. Nevertheless, the commissioner would appear to have had the findings and recommendations of the Panel established under cl 15 in mind - she set out the terms of that clause at [23] and refers to it again at [67].

1. Even if it could be said that the commissioner failed to consider the Panel's reasons for its recommendation and Mr Ingham's critique of them, not every consideration that the decision-maker must take into account but fails to take into account will justify a court setting aside the decision : Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. As I have noted at [6] above, it must be demonstrated that the factor which was not taken into account could have materially affected the decision. This has not been demonstrated in the present case.

1. Not only does this ground fail to demonstrate any error of law, neither does it demonstrate any irrationality or manifest unreasonableness in the relevant sense, or at all.

1. An additional ground: in addition to the grounds identified in the summons, AMP alleges that the commissioner fell into a further error of law in failing, at [71], to take into account a relevant matter. At [71] the commissioner said :

"I place no weight on the evidence that the relocation of the current practice from the Warringah Mall to the site is a matter of the public interest. The consent that allows this use on that site will continue to run with the land and it is a matter for second respondent whether there are any other medical businesses established there. That is not a matter for the Court.

1. AMP submits that "if it was relevant to the commissioner to consider that the proposed development would be a development that services the locality [64] surely it is relevant to consider that the lawfully approved existing medical centre already exists nearby will provide the very same or similar services and it is located in a zone that permits such a case under LEP 2000 and LEP 2011".

1. This ground raises, no error of law. The ground of failure to take a consideration into account is only made out if the decision-maker fails to take into account a consideration which he or she is bound to take into account : Minister for Aboriginal Affairs v Peko-Wallsend Ltd, at 39. The fact that there is an existing medical centre nearby is not a matter which the commissioner was bound to take into account. On the contrary, it was and is an entirely irrelevant consideration : Fabcot Pty Lyd v Hawkesbury City Council (1997) 93 LGERA 373 at 378 - 379; Cartier Holdings Pty Ltd v Newcastle City Council [2001] NSWLEC 170, 115 LGERA 407 at 413 - 416; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2002] NSWLEC 150 at [73] - [75]; Centro Properties Ltd v Warringah Council [2003] NSWLEC 17 at [109 - [110]; Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205, 144 LGERA 119 at [21] - [39]. AMP does not demonstrate how this fact was a relevant consideration.

Conclusions and Orders:

1. To summarize, the 2000 LEP allows category three developments, which include "medical centres", to be granted development consent subject to a consideration of a statement of environmental effects and the findings and recommendations of an independent public hearing (cl 15), as noted by the commissioner at [23] and [67], and which requirements were satisfied, as noted at [68]. The development was thus permissible under the 2000 LEP, being the applicable planning instrument; and the commissioner was satisfied, after taking into account all material issues raised by the parties, that the development could lawfully be approved and should be approved on the merits. In doing so the commissioner clearly preferred the evidence of the applicant's expert witness, Mr Sanders, to that of AMP's expert witness, Mr Ingham. The commissioner's determination is unexceptional and devoid of any legal error.

1. Despite the close, critical and detailed analysis of the commissioner's judgment by AMP, there is nothing in the grounds of appeal or in the judgment itself which demonstrate any error of law. It follows that the summons must be dismissed. It also follows that the respondents would normally expect an order that AMP pay their costs. At the conclusion of the hearing, however I was asked to reserve the question of costs. I therefore make the following orders:

1) The summons is dismissed.

2) The question of costs is reserved.

3) The six volumes of Court Books may be returned.

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Amendments

18 July 2012 - typographical erros

Amended paragraphs: Coversheet and Paragraph 5

Decision last updated: 18 July 2012