Barrak v City of Parramatta Council

[2018] NSWLEC 67

Land and Environment Court

New South Wales

Medium Neutral Citation:	Barrak v City of Parramatta Council [2018] NSWLEC 67
Hearing dates:	20 March 2018
Date of orders:	02 May 2018
Decision date:	02 May 2018
Jurisdiction:	Class 1
Before:	Moore J
Decision:	1   The appeal is dismissed; and 2   The Appellant is to pay the Respondent’s costs as agreed or assessed.
Catchwords:	APPEAL - s 56A appeal against decision of Commissioner - challenge to Commissioner’s use of objective of Height of Buildings clause of Local Environmental Plan - whether contested objective had work to do - role of provision in the statute compared to the role of an environmental planning instrument created as a subordinate document - a provision in an environmental planning instrument cannot constrain a mandated requirement for an assessment pursuant to the statute - construction of the provisions of the environmental planning instrument - power to “read in” additional words - reading in not necessary for sense of provision in Local Environmental Plan - no vitiating defect in Commissioner’s fact-finding - fact-finding not infected by unreasonableness - appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979, s79C(1)(a)(i) Land and Environment Court Act 1979, ss 34 and 56A Parramatta Development Control Plan 2011 Parramatta Local Environmental Plan 2011, cll 2.3, 4.3, 4.6, 5.10 and 10.10
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 Barrak v Parramatta City Council [2017] NSWLEC 1244 BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Chen v Virgona [2008] NSWLEC 281 Cooper Brookes (Wollongong) Pty Limited v the Federal Commissioner of Taxation (1981) 147 CLR 297 Grigorakis v Bayside Council [2016] NSWLEC 1573 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Wentworth Securities Ltd v Jones [1980] AC 74 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63
Category:	Principal judgment
Parties:	Benjamin Barrak (Appellant) City of Parramatta Council (Respondent)
Representation:	Counsel: Mr P Clay SC (Appellant) Mr S Nash and Mr T Liu, barristers (Respondent)   Solicitors: Barrak Lawyers (Appellant) Marsdens Law Group (Respondent)
File Number(s):	179424 of 2017
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The site

The locality

The appeal against the Commissioner’s decision

The grounds of appeal

The evidence on appeal

The written submissions and the hearing

The statutory framework

Introduction

The Council’s planning documents

The relevant provisions of the LEP

Introduction

The site’s zoning

The characterisation and permissibility of the proposed development

The objectives of the LEP

The Height of Buildings provision

Seeking exemption from compliance with development standards in the LEP

The heritage provision

The Commissioner’s decision

The Commissioner's conclusion

The structure of the Commissioner’s decision

The relevant height restrictions

Introduction

Mapped heights on the site

The submissions

Introduction

The written submissions for the Appellant

Written submissions for the Council

Consideration

Introduction

The Commissioner's citation of Grigorakis v Bayside Council

Addressing the sole ground of appeal

Availability of consideration of the objectives of cl 4.3

The Commissioner’s consideration of cl 4.3(1)(a) of the LEP

The Commissioner’s findings of fact

Introduction

Other locations mapped T2 with the same height limit

The height limit in the context of the site

The T2 28-metre height is a defined maximum

Unreasonableness

Conclusion

Costs

Orders

Judgment

Introduction

1. On 26 February 2016, Mr Benjamin Barrak (the Appellant) applied to the City of Parramatta Council (the Council) for development consent to erect an eight-storey, mixed use development at 116 Wigram Street, Harris Park (the site). By the effluxion of time, the Council was deemed to have refused development consent, with the result that the Appellant commenced Class 1 proceedings in this Court, seeking to have this Court grant development consent to his project.

2. A conciliation conference conducted (on 8 December 2016) pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act) was unsuccessful. The merit appeal was subsequently heard and determined by Dickson C, with the hearing taking place on 27 April 2017 and the Commissioner delivering her decision on 19 May 2017 (Barrak v Parramatta City Council [2017] NSWLEC 1244). The Commissioner concluded that she was unable to approve the proposed development.

The site

3. The formal title descriptor of the site is Lot 1 in Deposited Plan 703146. The site is triangular in shape with a northern frontage of ~44 metres to Wigram Street and a north-western frontage of ~66 metres to Kendall Street. The site has an area of 1,085 square metres. The Parramatta Fire Station is located immediately to the east of the site.

The locality

4. In Harris Park, to the east of the main western railway line, is located the Harris Park Heritage Conservation Area (the heritage conservation area). The portion of this heritage conservation area relevant for the purposes of these proceedings is bounded:

• on the south by Station Street East;

• on the east by Marion Street;

• on the northwest by Kendall Street; and

• on the north by Wigram Street.

5. The site is located at the western end of this block. There are a number of individual heritage items in this block to the east of the site. There are a number of individual heritage items opposite the site on the northern side of Wigram Street.

The appeal against the Commissioner’s decision

6. Mr Barrak appealed against the Commissioner’s decision on 15 June 2017. This appeal has been made pursuant to s 56A of the Court Act, a provision which reads:

(1)   A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2)   …

(3)   …

7. The appeal seeks to have the Commissioner’s decision set aside and the matter be remitted to be dealt with other than by the Commissioner.

The grounds of appeal

8. A single ground is pleaded in support of the appeal. This ground is pleaded in the following terms:

The Commissioner, in finding that the proposal is inconsistent with the objectives of the control in clause 4.3 of the Parramatta Local Environmental Plan 2011 (‘LEP’) misconstrued the construction and application of clause 4.3 of the LEP.

9. For the reasons set out later, I am satisfied that this complaint lacks foundation and the appeal is to be dismissed.

The evidence on appeal

10. The material that was in evidence before the Commissioner; relevant statutory and council planning instruments; and a transcript of the in-court hearing before the Commissioner were before me in the two volumes of the Appeal Book. Only limited elements of this material require consideration for the purposes of my analysis in this appeal.

The written submissions and the hearing

11. I have had the advantage of written submissions by Mr Clay SC (for the Appellant) and Mr Nash (barrister for the Council) for the purposes of this appeal. They are later reproduced (in full for the Appellant and as necessary for the Council).

The statutory framework

Introduction

12. Although the rearrangement of the Environmental Planning and Assessment Act 1979 (the EP&A Act), and the adoption of a new decimal numbering system for its provisions, took effect from 1 March 2018, before this appeal was heard, the proceedings before the Commissioner were held, and her decision was given, before these changes to the EP&A Act came into effect. It is, therefore, convenient to refer to the relevant statutory provisions as they applied when the Commissioner dealt with the matter.

The Council’s planning documents

13. The Parramatta Local Environmental Plan 2011 (the LEP) is the environmental planning instrument that provides the local statutory framework regulating development in the heritage conservation area. To complement the LEP, the Council has adopted the Parramatta Development Control Plan 2011 (the DCP) to provide more fine-grained planning, which, to the extent relevant, applies to the heritage conservation area. Matters called up for consideration in this appeal arise from a number of provisions contained in the LEP and there is no necessity to turn to consider any of the provisions of the DCP.

The relevant provisions of the LEP

Introduction

14. For the purposes of consideration of this appeal, it is necessary to address a range of provisions in the LEP. These are discussed (and quoted as relevant) below.

The site’s zoning

15. The site is zoned B1 - Neighbourhood Centre. The objective of the B1 zone, as set out in the Land Use Table of the LEP, is:

To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

The characterisation and permissibility of the proposed development

16. The proposal is characterised as shop top housing. Development for this purpose is permissible, with consent, in the zone.

17. It is unnecessary to turn to other detail of the Land Use Table concerning the B1 zone within which the site is located as nothing arises from the zoning for the purposes of this appeal.

The objectives of the LEP

18. The first of the potentially relevant provisions of the LEP is cl 2.3, one which sets out the objectives of the LEP and how they are to be considered. It is in the following terms:

2.3   Zone objectives and Land Use Table

1)   ….

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

3)   ….

4)   ….

The Height of Buildings provision

19. The next clause of the LEP which is relevant is cl 4.3, the clause which deals with the height of buildings within the area covered by the LEP. Relevantly, this provision is in the following terms:

4.3   Height of buildings

(1)   The objectives of this clause are as follows:

a)   to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan,

b)   …,

c)   to require the height of future buildings to have regard to heritage sites and their settings,

d)   …;

e)   to reinforce and respect the existing character and scale of low density residential areas,

f)   …

(2)   The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

(2A)   …

Seeking exemption from compliance with development standards in the LEP

20. The LEP also includes a provision, cl 4.6, which permits objection to be made to complying with any development standard (unless expressly excluded by the provision creating the standard) applying pursuant to the LEP. As this provision plays but a marginal role in these proceedings, it is not necessary to reproduce it.

The heritage provision

21. Finally, cl 5.10 is relevant to heritage conservation areas. The portions of the provision relied upon by the Commissioner (cl 10.10(1)(b) and (4)) are in the following terms:

5.10   Heritage conservation

(1)   Objectives

The objectives of this clause are as follows:

(a)   …

(b)   to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c)   …

(d)   …

(2)   …

(3)   …

(4)   Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5)   …

(6)   …

(7)   …

(8)   …

(9)   …

(10)   …

The Commissioner’s decision

22. After setting out relevant descriptive matters concerning the site and the proposed development; the statutory framework within which she was required to address the proposed development; and the town planning and heritage expert evidence, the Commissioner set out her findings at [55] to [61] of her decision. As an understanding of her reasoning is necessary in light of the error said, in this appeal, to infect the Commissioner’s decision, it is appropriate to set out her findings in full. She wrote:

55   The objectives of the heritage conservation cl 5.10 of LEP 2012 include at (b) to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and views. In order to assess the impact of the proposal under cl 5.10 it is necessary to define the significance of the heritage conservation area, and then determine the impact of the proposal on that significance. In this case, the significance is agreed between the experts to be defined by Section 4.4.3.3 of DCP 2011 [refer par. 28].

56   Following a consideration of the evidence and the submissions I accept Mr Brooks evidence and find that the proposal has a detrimental impact on the significance of the HCA for the following reasons:

(1)   The proposal does not dealt skilfully with the frontage to the HCA. The elevation treatment of the proposed building relies on the future development of the adjoining site to provide an appropriate address to the streetscape when viewed from Wigram Street. This is particularly evident in the architectural resolution of the proposed rear elevation [Drawing A201];

(2)   I find that the proposal is inconsistent with the objectives (a), (c) and (e), of the Height control at cl 4.3 of LEP 2011 namely:

(a)   to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan,

(b)   to require the height of future buildings to have regard to heritage sites and their settings,

(e)   to reinforce and respect the existing character and scale of low density residential areas,

For the reasons that:

(a)   I am satisfied that the proposed development does not achieve a satisfactory built form in scale and character, in particular in relation to its presentation to the south (rear elevation), and the HCA.

(b)   Contrary to objective (e) the proposed development is not of an appropriate scale, given its location at the boundary of, and entry to the HCA.

(c)   I accept the evidence of Mr Brooks that the proposed development will impact the setting of the heritage listed cottages in Ada Avenue and the heritage item opposite the site on Wigram Street.

(3)   I do not accept that the proposal is an appropriate response to its location at the junction of the City Centre with the heritage conservation area. I find that the HCA is well defined by the existing elements within the built environment [par. 46] and the proposed development of the site does not adequately respond to it location at the commencement of the HCA, and its entry from Parkes Street;

(4) The proposal fails to respond appropriately to suite of Objectives, Controls and Design Principles in Sections 3.5.1, 4.3.2 and 4.4.3.3 of DCP 2011 and they appropriately apply to development within the HCA. Pursuant to s s79C(3A) of the Act strict compliance with the DCP is not required, but in this case I find that the applicant has failed to demonstrate that the variation to the DCP controls sought achieves the objectives of the relevant standards.

57   Whilst the LEP Height of Buildings Map provides a height of 28m that needs to be overlayed by heritage consideration, amongst other merit factors, to determine the appropriate bulk and scale of development on the site (par. 36 Grigorakis v Bayside Council (2016) NSWLEC 1573). I find that the proposed scale and architectural presentation of the development will have a detrimental impact on the distinctive characteristics, and heritage significance, of the HCA.

58   Having considered the effect of the proposed development on the heritage significance of the Harris Park West Conservation Area, I am not satisfied that the proposal achieves the objective of cl 5.10(1)(b) of LEP 2012 to conserve its heritage significance. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the HCA, I am satisfied that the effect is unacceptable and sufficient to warrant refusal of the application for this reason alone. Consequently there is no power to grant consent to the application.

59   For completeness, I note that the development also relied on a variation to the height control under clause 4.6 of LEP 2011. The joint expert report on urban design and planning (Exhibit 4) notes as agreed:

Experts agree that the height of the proposed building, including lift overrun non compliance, would be acceptable from an urban design and planning view point absent the heritage considerations. Contention 2 is concerned with “impact on the surrounding heritage conservation area” and therefore is a matter for heritage experts.

60   In this case I find that consent cannot be lawfully granted to the proposal as, for the reasons provided above, I am not satisfied that the development is consistent with the objectives of the height standard (refer par 53), or that the applicant has established that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

61 I have already accepted the evidence of Mr Brooks that the height of the development is not suitable in the context of the HCA. The breach is associated with the lift overrun. In my view, the reasoning behind the finding under cl 5.10(4) is also relevant to the consideration of the cl 4.6 variation request given the framing of the objectives of cl. 4.3 Height of Buildings clause. For the Court to accept the applicant’s variation request it must be satisfied that the development is consistent with the objectives of the relevant standard (Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7) in this case cl 4.3. For the reasons detailed in [par. 56] I find that the proposal is inconsistent with the objectives (a), (c) and (e), of the Height control at cl 4.3 of LEP 2011 namely that the breach of the height standard exacerbates a bulk and scale that this inconsistent with the heritage significance of the HCA.

The Commissioner's conclusion

23. In [62] of her decision, the Commissioner set out, succinctly, the basis upon which she determined that the Applicant's appeal should be rejected. Her conclusion was in the following terms:

62   Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the Harris Park West Heritage Conservation Area, I am satisfied that the effect is unacceptable and sufficient to warrant the refusal of the application. Consequently, there is no power to grant consent to the development application and the application must fail.

24. As can be seen, her conclusion that the appeal should be dismissed was based, in terms, on cl 5.10 of the LEP and what she considered to be the development proposal’s failure to satisfy it. It is the reasoning process in her findings earlier set out by which she reached this conclusion that Mr Clay submits is infected by legal error. If he is correct, the conclusion cannot stand, but, if there is no defect that caused her reasoning process to miscarry, her conclusion must stand and this appeal be dismissed.

The structure of the Commissioner’s decision

25. I have set out above the relevant portions of the Commissioner’s decision disclosing her findings and the basis upon which she reached her conclusion. There are a number of matters to be observed concerning the structure of her reasoning disclosed.

25. The sustaining of an objection pursuant to cl 4.6 of the LEP to compliance with the height control development standard set out in cl 4.3 of the LEP was a necessary jurisdictional prerequisite, in the ordinary course of events, to the determination of a merit assessment of the proposed development. As can be seen, the Commissioner turned to this issue as the final conclusion of the matters she addressed in her findings.

26. In the present circumstances, there is no vice in her having done so because it was the agreed position of the expert town planners (and remained the position endorsed by counsel for the parties on appeal) that if the matters called up by the height control, in cl 4.3, and the heritage assessment, mandated by cl 5.10 of the LEP, were satisfied, it would have been appropriate for the Commissioner to have upheld the cl 4.6 objection to compliance with the height control limit.

27. Second, the Commissioner concluded that, on the merits, the non-compliance with the height control in cl 4.3 of the LEP was inappropriate. This can be seen from [56] and [60] to [61] of her findings.

28. Finally, the Commissioner considered the relevant heritage matters called up by cl 5.10 of the LEP and concluded that the proposed development did not satisfy them and thus warranted refusal on this basis alone (see [58] of her findings).

29. The interrelationship of her consideration of matters called up by the objectives of cl 4.3 of the LEP, and those arising from her consideration of cl 5.10 of the LEP, in the submissions of Mr Clay, give rise to errors of law in her findings that each of these provisions was a basis which mandated her refusal of the development application.

The relevant height restrictions

Introduction

31. Pursuant to cl 4.3(2) of the LEP, the Council adopted a Height of Buildings Map which identified, by colouring and numbering, the maximum building height for the various allotments within the scope of the map. The map was in multiple sheets, some 18 in number. These are all available on the NSW Legislation website. It has been necessary to examine all these sheets for the purposes of this appeal.

Mapped heights on the site

32. The applicable sheet, 6250_COM_HOB_010_010_20150724, is the one which encompasses the area where the site is located as at the date the application was made to the Council. There is no material difference between that which is depicted on this sheet and that which is shown on the current version of that sheet.

33. The sheet of the Height of Buildings Map discloses that the site is classified as T2 and coloured pink. The key to the Height of Buildings Map discloses that this represents a prescribed maximum building height for this portion of the site of 28 metres. The site to east of the site is noted as being classified as P4 and is coloured brown. The key discloses that this allotment is subject to an 18-metre maximum height restriction.

34. The lowering of the permitted maximum height of the site on its eastern boundary, when compared to the site, is to continue the transition between development on the site (which relates to the permitted taller height of development to the west across Kendall Street on the eastern fringes of the Parramatta CBD) and the much lower scale of the identified heritage items to the east of the site within the heritage conservation area. A copy of the relevant portion of the Height of Buildings Map is reproduced below, with the location of the site circled in red by me and able to be identified by its pink T2 marking.

The submissions

Introduction

35. Mr Clay and Mr Nash both spoke to their written submissions and took me to the portions of the Court Book each of them considered were relevant. The bases upon which the Appellant’s and the Respondent’s cases were advanced are encapsulated in the written submissions. Relevant extracts from the written submissions are set out below.

The written submissions for the Appellant

36. Mr Clay made comprehensive submissions in support of the sole ground of appeal. After setting out a range of background material, he turned to setting out the basis upon which the Appellant’s sole ground rested. He wrote:

Error of law

19   The first error is that the Commissioner set about the improper task of determining whether or not the proposed development met with the objectives of the height control. There was no warrant so to do. That enquiry fails to understand the meaning of the clause and its place in the LEP.

20 When read as a whole, the LEP, together with s79C of the Act, does not permit a consent authority, on a merit assessment of a development application, to make inquiry as to whether a proposal meets the objectives of a development standard. The only time that the objectives become relevant to the consent authority's consideration is where a written request is made to vary the standard pursuant to clause 4.6 of the LEP. That construction is confirmed when one considers clause 2.3(2) of the LEP which requires that a consent authority has 'regard' to the relevant zone objectives when determining a development application. No such requirement is imposed in respect of objectives to a development standard.

21   The Commissioner's finding at [56] was in relation to a general merit consideration of the proposal and was therefore an impermissible inquiry, constituting an error of law.

22   At [59]-[61], the Commissioner dealt with the clause 4.6 request submitted to vary the height development standard. At [60], the Commissioner recorded that the height development standard could not be varied pursuant to cl4.6 'for the reasons provided above, I am not satisfied that the development is consistent with objectives of the height standard'. Those reasons included consideration of the objectives of the height development standard, which was a permissible inquiry pursuant to clause 4.6(4)(a)(ii) of the LEP.

23   The Commissioner erred by finding that the proposal is not consistent with objective (a) which states 'to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan'. On the proper construction of the LEP, objective (a) is met by the Council's nomination of the building heights that it envisages for the Land. By 'nominating' the height limit, the Council has nominated a height which it says will provide a transition in built form and land use intensity to the surrounding areas. There is no further work for objective (a) to do. The Commissioner on the other hand, made a positive finding that the proposal was 'inconsistent' with objective (a). That was an impermissible enquiry. It was from that error the other errors flowed.

24   The Commissioner then conflates objectives (a), (c) and (e) to find that the proposed development will result in a building which is not of an appropriate scale given its location at the boundary of and at the entry to the HCA. That finding ignores the Council's purposive application of a site specific 28 metre height limit in the context of the transition to the HCA which is inherent in the objectives to the clause.

25   When one assumes that the objectives inform the site specific height control, it is clear that the Council considered that a building with a scale of 28 metres would have sufficient regard to the HCA and reinforce and respect the existing character and scale of the nearby low density residential areas.

26   By misunderstanding the application of objective (a) and the relationship between the height limit and objectives (c) and (e), the Commissioner erred in disregarding the 28 metre height limit.

27   At [57] the Commissioner found that the 28 metre height limit is to be 'overlayed by heritage consideration, amongst other merit factors, to determine the appropriate bulk and scale of development on the site (par. 36 Grigorakis v Bayside Council (2016) NSWLEC 1573)'.

28   The reference to Grigorakis is not entirely clear. The reference is to paragraph 36, which merely states that DCP controls are expressed as a maximum and there is no suggestion that maximums may be achieved. It may be that the Commissioner intended to refer to paragraph 35 which refers to the interrelationship between clause 5.10 and the DCP height controls.

29   In Grigorakis, Commissioner Brown considered a development application which sought approval for alterations and additions to a heritage item. Commissioner Brown correctly found that in the context of the Botany LEP, there was no primacy in the controls and that the generic height control in the LEP and DCP did not have primacy over the heritage considerations required by clause 5.10 of the LEP (in the Standard Instrument form).

30   The facts in Grigorakis were quite different to the matter at hand. Relevantly, the LEP height control was a blanket control which applied across a wider area and did not have heritage objectives. The DCP did not depart from the maximum height control but prescribed the appropriate distribution of bulk across land affected by heritage constraints.

31   Whilst it is true that there is no primacy in the LEP controls, as a matter of statutory construction the whole of the LEP must be read together so that all words are given meaning and effect and read with the greatest harmony and the least inconsistency' . Clause 4.3 and 5.10(4) can be read together in harmony as the site specific height development standard acknowledges the heritage significance of the HCA and the need to transition built form. One cannot ignore that control and apply clause 5.10(4) in a vacuum.

32   The Court would find that the Commissioner erred in asking and finding that the proposal is inconsistent with the objectives of the control in clause 4.3 of the LEP and therefore misconstrued the construction and application of clause 4.3 of the LEP.

Vitiating error

33   It is well settled that it is not sufficient to establish merely that the decision under appeal discloses an error of law; that error must be of such significance as to vitiate the ultimate decision.

34   By misconstruing the construction and application of clause 4.3 and giving the height control no weight, the Commissioner's decision was a vitiating error as the other findings were infected by that decision:

(a)   The Commissioner's finding that the architectural treatment to the frontage is not dealt with skilfully is flawed as it similarly assumes that the neighbouring property will not be developed consistent with its height limit prescribed by clause 4.3 of the LEP.

(b)   The Commissioner's decision to give the height control no weight, infected the application of clause 5.10 of the LEP. Reading the LEP as a whole, it is clear that the height limits in clause 4.3 were devised with reference to the heritage conservation area. By misconstruing the objectives to the height control and giving it no weight, the Commissioner's decision with respect to the application of clause 5.10 of the LEP was infected and therefore the error vitiated the ultimate decision.

(c)   The Commissioner's finding with respect to the clause 4.6 request (at [59]-[61]) was similarly infected by the error as it assumed that the proposed height (not including those parts that breached the limit) was unacceptable.

Written submissions for the Council

37. Mr Nash’s written submissions advanced six bases upon which he proposed that the appeal should be dismissed. Although I have set out, in their entirety, Mr Clay's written submissions in order to provide an understanding of what was put on behalf of the Appellant in support of the sole ground of appeal, it is not necessary to set out the totality of Mr Nash’s submissions. For the reasons later discussed as providing a sufficient basis to dismiss the appeal, only the third of the reasons advanced by Mr Nash requires consideration. The relevant elements of his written submissions were in the following terms:

7 The Respondent submits that the Appellant's fundamental error in its approach to the reasons and decision of the Commissioner is first revealed at AS [13]. Whilst the Appellant observes that clause 4.3 of the Parramatta Local Environmental Plan 2011 (LEP) sets a 'maximum' height control for the Land of 28 metres, the submission in the last sentence of that paragraph that '[i]t must be assumed that the numerical height controls in the Height Map are the embodiment of the objectives of these controls', does not recognise or appreciate that the height control sets 'maximum' height limits. While it is correct to say that the objectives in cl 4.3 of the LEP inform the selection of the numerical height controls in that clause, the height control is - with regrettable repetition - a 'maximum' control. Upon a full consideration of the objectives in cl 4.3 of the LEP, a 28 metre high development proposal may not, in the particular circumstances of the case, having sufficient planning merit to justify the grant of development consent.

8   Accordingly, this ground of appeal should be rejected for the following reasons:

(a)   …;

(b)   …;

(c)   Thirdly, the Appellant's submissions at AS [19] - [21] are wrong, for the following reasons:

i Section 79C(1) of the EPA Act provides that in determining a development application, the consent authority is to 'take into consideration', inter alia, relevant provisions of 'any environmental planning instrument'. The objectives in cl 4.3 of the LEP, are self-evidently, relevant provisions of 'an environmental planning instrument';

ii The comparison with cl 2.3(2) of the LEP is misplaced (see AS [20]). Clause 2.3(2) mandates regard to the objectives of the relevant zone objectives in the assessment of a development application, such that any failure to have regard to them would lead to reviewable error. This does not mean that the objectives of the height control in cl 4.3 of the LEP are 'irrelevant considerations' on a planning merit assessment of a development application. That is because s 79C(1) of the EPA Act permits regard to those objectives, for the reason stated above. But further, there is no implied limitation to be found in the subject matter, scope and purpose of the EPA Act or the LEP which provides that the consent authority is 'bound not to take those objectives into consideration' (see Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [2006] NSWLEC 456 at par [160]);

iii   Accordingly, it may not be a requirement to have regard to the objectives in cl 4.3 of the LEP in the assessment of a development application (see AS [20]), such that any failure by the consent authority to consider those objectives would lead to reviewable error. However in determining whether a proposed built form should be approved having regard to fact that the height control in cl 4.3 of the LEP is a 'maximum' control, those objectives are self-evidently the best and most appropriate reference point to conduct a planning merit assessment;

iv   It follows that it would be erroneous to limit a consideration of the objectives of cl 4.3 of the LEP to the circumstance where an application is made to vary the height control pursuant to cl 4.6 (see AS [20]). There is, simply put, nothing in the EPA Act or LEP which imposes such a limitation;

(d)   …;

(e)   …;

(f)   ….

Consideration

Introduction

38. I note that, in my consideration of the reasons given by the Commissioner for concluding that the appeal against the Council's refusal should be dismissed, it is not appropriate for me to seek to dissect her decision by analysing it with a fine-tooth comb (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367).

39. It is to be observed that there is no formal onus of proof in a Class 1 merit appeal. However, as Preston CJ observed in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]:

… an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.

40. Further, to the extent that the Commissioner's findings were ones of fact unless they were unreasonable to the extent necessary to infect her reasoning in a fashion that caused her decision-making to miscarry, there can be no error vitiating her decision on the basis of those findings.

The Commissioner's citation of Grigorakis v Bayside Council

41. As can be seen in [57] of the Commissioner’s decision, she makes passing reference to the decision of Brown C in Grigorakis v Bayside Council [2016] NSWLEC 1573. In [27] to [31] above of his written submissions, Mr Clay commented on her citation of this decision.

42. In his written submissions, Mr Nash addressed this aspect of Mr Clay's submissions. Mr Nash wrote:

(e)   Fifthly, in her findings at Judgment [57], the Commissioner made a very swift passing reference to Commissioner Brown's decision in Grigorakis v Bayside Council [2016] NSWLEC 1573. The Appellant dedicates 5 paragraphs to this matter at AS [27] - [31]. The first observation to make is that this involves an impermissible 'fine tooth comb' approach to her reasons. But more substantively, in Grigorakis, Commissioner Brown observed that clauses within an LEP did not have primacy over other clauses, and further that the relevant height control was a 'maximum' control, which was not necessarily achievable on a planning merit assessment. The Commissioner's reference in the present case to Grigorakis was therefore appropriate and sound. The Appellant seeks to draw a distinction between Grigorakis and the present appeal on the basis that the LEP height control in Grigorakis was not a 'site specific' control and did not have heritage 'objectives'. For the reasons already set out above - i.e. that cl 4.3 of the LEP sets 'maximum' height controls - it is immaterial that the height control in Grigorakis applied 'across a wider area' (see AS [30]). Accordingly, contrary to AS [31], the Commissioner appropriately and soundly assessed the Proposal against both the objectives of cl 4.3, and the terms of cl 5.10(4) of the LEP;

43. It is unnecessary to deal with this matter at any length. It seems to me that the Commissioner’s reference to Grigorakis, whatever might have been intended by it, was not an essential element of her reasoning process leading to her conclusion that she should reject the Appellant's proposed development. As a consequence, I am satisfied that I can ignore the concern raised by Mr Clay concerning this citation or its accuracy.

Addressing the sole ground of appeal

44. I have earlier set out the terms of the comprehensive written submissions for the Appellant, and relevant portions of those for the Council, in order to make it possible to understand the analysis that follows. This analysis addresses whether:

1. The Commissioner was permitted to have regard to the objectives of cl 4.3 of the LEP;

2. In her analysis of those objectives, she was not precluded from consideration of cl 4.3(1)(a) in the context of the present application; and

3. The result of her consideration of the three of the objectives in cl 4.3(1), that she considered were relevant, were findings of fact.

45. As findings of fact are not amenable to founding an appeal pursuant to s 56A of the Court Act unless infected with such unreasonableness as to vitiate the fact-finding process, I also deal with the question of whether or not her fact‑finding was so infected.

46. As I explain in the following steps, there is no defect in any of these elements of the Commissioner’s decision. As a consequence, as I foreshadowed at [9], the challenge to the Commissioner’s decision must fail.

Availability of consideration of the objectives of cl 4.3

47. Mr Clay proposed that, because cl 2.3(2) of the LEP (earlier set out at [18]) mandated consideration of the objectives of a zone in the assessment of a proposed development within that zone (in this case, within the B1 ‑ Neighbourhood Centre zone whose sole objective was earlier set out at [15]), it was impermissible in a general sense for the Commissioner to have regard to the objectives of other clauses (in this case, cl 4.3) in her assessment of the general merits of this proposal.

47. Mr Clay proposed that the only circumstances when the objectives of clauses other than those for the relevant zone contained in the Land Use Table in the LEP are able to be engaged for the purposes of merit assessment are when such consideration is mandated by the LEP itself. He advanced the proposition that, as a consequence of the terms of cl 4.6(4)(a)(ii), consideration of the objectives of a clause such as cl 4.3 was mandated to arise as a consequence of the necessity to examine those objectives in the context of an application seeking permission for a proposed development to be permitted to breach a development standard otherwise established by the LEP. The element of cl 4.6 advanced in support of this proposition by Mr Clay is in the following terms:

4.6   Exceptions to development standards

(1)   …

(2)   …

(3)   …

(4)   Development consent must not be granted for development that contravenes a development standard unless:

(a)   the consent authority is satisfied that:

(i)   … and

(ii)   the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, [emphasis added]

49. Assuming, for the purposes of this consideration, that that proposition arising from the terms of the instrument itself had some potentiality to be correct, that is not the end of the matter. The LEP is an environmental planning instrument (a statutorily defined term). The LEP nowhere contains any express prohibition of the consideration of the objectives in clauses in the LEP containing such objectives as frame their operation. The terms of cl 2.3 relied upon by Mr Clay contain a positive obligation to have regard to the objectives of the relevant zone. To adopt the approach advanced by Mr Clay, it is necessary to read cl 2.3 as if it contained additional, confining words [in bold italics] so as to read:

2.3   Zone objectives and Land Use Table

1)   …

2)   The consent authority must have regard to (and only have regard to) the objectives for development in a zone when determining a development application in respect of land within the zone.

3)   …

4)   …

50. There are two reasons to reject this approach. The first is to be found in the positive requirement contained in s 79C(1)(a)(i) of the EP&A Act mandating that the merit assessment process is to have regard to the whole of any relevant environmental planning instrument (in this case the LEP). To the extent that some confining inference might be appropriate to be drawn from cl 2.3 of the LEP (a proposition to be rejected as discussed below), such an inference from an environmental planning instrument cannot constrain that which is mandated by the statute which permits the creation of that instrument (in this case, the EP&A Act)) (applying, by inference, the reasoning of Preston CJ in Chen v Virgona [2008] NSWLEC 281).

51. This is precisely the point advanced by Mr Nash as his third reason set out in his submissions ([37] above) as exposing a fallacy in the reasoning process advanced on behalf of the Appellant.

52. Second, comparatively recently, the High Court has turned to consider the circumstances in which an approach may be taken allowing reading a statutory provision in a purposive fashion (including importing, for such purpose, words into the provision that are not expressly contained in the statute).

53. In this consideration, in Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9, the plurality (French CJ and Crennan and Bell JJ) said, at [37]:

Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation.

54. The plurality had earlier set out three conditions derived from the decision of Diplock LJ in Wentworth Securities Ltd v Jones [1980] AC 74 at 105. These three conditions are summarised in [22] to [24] in Taylor as:

1. The first of his Lordship's conditions requires the identification of the precise purpose of the provision;

2. The second of his Lordship's conditions requires satisfaction that the drafter and the parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose; and

3. The third of his Lordship's conditions requires the court to identify the words that the legislature would have included in the provision had the deficiency been detected before its enactment.

55. The plurality noted (at [39]) that these three conditions accorded with the statements of principle in Cooper Brookes (Wollongong) Pty Limited v the Federal Commissioner of Taxation (1981) 147 CLR 297. The plurality also noted that:

… the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that the modified construction is reasonably open having regard to the statutory scheme because any modified meaning must be consistent with the language in fact used by the legislature.

56. Although dissenting on the outcome in Taylor, the decision of Gageler and Keane JJ observed, relevant to the proposition of an expansive approach to construction, at [66]:

Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.

57. Consistent with this approach, a purposive approach may permissibly require incorporation of words if (and only if) necessary to give effect to the intent of the legislation.

58. In this instance, there is no discernible hint of ambiguity in cl 2.3(2) of the LEP that could conceivably warrant importation of additional words. The limitation postulated by Mr Clay on the use of the objectives of cl 4.3 is unsustainable and is rejected.

The Commissioner’s consideration of cl 4.3(1)(a) of the LEP

59. Having explained why it was permissible, in the general sense, for the Commissioner to have regard to relevant and appropriate objectives of cl 4.3 of the LEP, I now turn to consider the question of whether cl 4.3(1)(a) was not an objective capable of interpretation, but merely a statement of mandated obligation concerning the development standards created by the mapping process, a mapping process given effect for the purpose of imposing the 28-metre height control derived from the classification of the site as T2 by the relevant sheet of the Height of Buildings Map.

60. Although the use of dictionary definitions for interpretive purposes needs to be approached with caution (Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188, per Basten JA at [77]), such an approach is of some assistance in these proceedings by having regard to the Macquarie Dictionary definition of “objective”. The definition of the word as a noun, appropriate for the current context, is in the following terms:

an end towards which efforts are directed; something aimed at

61. It is clear that, in this specific instance, the objectives of cl 4.3 are to be approached in this fashion. There are, as a consequence, two observations to be made.

62. First, the development standard applicable to the site as a consequence of its designation as subject to a T2, 28-metre height control is not a limitation derived from the objectives set out in cl 4.3(1), but from the mapping undertaken to create the general height of buildings’ framework across the totality of the Council’s local government area and then imported into, and mandated to be observed by, cl 4.3(2) of the LEP. This is clear from the terms of this provision, a provision which reads:

(2)   The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

63. The consequence of this is that all of the objectives of cl 4.3(1) are to be read as being explanatory statements of the reasons why the various height limitations imposed by cl 4.3(2) have been brought into being. Read in this context, the use of the word “will” in cl 4.3(1)(a) is to be seen as being aspirational in context, rather than as some form of absolute restriction in the fashion that underpins the reasoning process advanced by Mr Clay.

64. There is, therefore, no basis upon which I should conclude that there was any error in the Commissioner considering the first objective in cl 4.3(1). It was not a “spent” objective as a consequence of the mapping project mandated by cl 4.3(2) being completed.

65. For the reasons set out above, the Commissioner was permitted to have regard to the first of the objectives in cl 4.3(1) as a matter of merit assessment of the proposed development.

The Commissioner’s findings of fact

Introduction

66. The Commissioner’s consideration of the proposed development on the site led to her various findings of fact contained in [55] to [61] of her decision. It is necessary to consider these to determine if there is any vitiating defect to be discovered.

Other locations mapped T2 with the same height limit

67. The mapping process undertaken to furnish the maps called up by cl 4.3(2) has led to the electronic attachment of 18 map sheets to the LEP accessed through the NSW Legislation website. Each of those 18 maps has been revised on multiple occasions since the original coming into effect of the LEP. However, all historical versions of each of the sheets are available - specifying the date range through which that version of the sheet was operative.

68. I have examined all 18 of the Height of Buildings Map sheets for the LEP as at the date of lodgement of the Appellant’s development application with the Council. My examination discloses that six of the sheets have one or more locations classified T2 - 28 metres. In all, the maps show there are 13 locations so classified in addition to the site.

69. A comparison of the locations mapped T2 on the Height of Buildings Map sheets with the Heritage Map sheets also forming part of the LEP discloses that few of the other T2 locations have any relationship with heritage identified sites. No others appear to have any relationship with a heritage conservation area.

70. There are no relevant differences between these maps as at the date of lodgement of the Appellant’s development application; the date of its deemed refusal; or the date of commencement of the Class 1 appeal.

The height limit in the context of the site

71. As was noted in the Appellant's written submissions at [27], the Commissioner observed, at [57] of her decision (as earlier set out), that the height specified by the relevant sheet of the Height of Buildings Map (providing a height limit of 28 metres on the site) requires to be considered by overlaying “heritage consideration, amongst other merit factors, to determine the appropriate bulk and scale of development on the site”.

72. This is clearly appropriate in light of the fact that there are a number of other T2 sites where there would be no engagement of heritage issues in the assessment of any proposed development.

The T2 28-metre height is a defined maximum

73. Given that the permitted 28-metre height, in the context of BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399, is not an entitlement but is to be regarded (as were the controls in that case) as the development potentiality when assessed in the overall context of a proposed development, her approach is entirely uncontroversial in this regard.

74. It is appropriate to observe that the maximum building height is:

1. One that acts as a prima facie limit on the height of development on the site. The applicable height limit is not an entitlement to which development must be approved but acts as a limit for the purposes of merit assessment of all the relevant factors called up for consideration by s 79C of the EP&A Act; and

2. The height limit is, however, amenable to being permitted to be breached if a successful objection to compliance with the limit is made pursuant to cl 4.6 of the LEP as earlier set out.

75. In this instance, the development did propose a breach (to be caused by the lift overrun to be located approximately in the centre of the proposed development). An objection pursuant to cl 4.6 of the LEP was made to compliance with the height limit and this was dealt with by the Commissioner in her findings earlier set out.

76. It is clear that her consideration of the various objectives in cl 4.3(1), including, expressly, her consideration of cl 4.3(1)(a), involved her making a factual assessment of the proposed development in the context of those objectives. Her findings make it clear that this is the basis upon which she has done so.

Unreasonableness

77. For there to be any potential error of law in the Commissioner’s factual analysis and decision-making process based on her factual findings, this could only arise for consideration if the conclusion which she reached was so unreasonable as to constitute an error of law (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 and Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63). Thus, her reasoning must stand unless it is infected with such unreasonableness.

78. No such finding is proposed in the pleadings on behalf of the Appellant. Nothing was pointed to in Mr Clay's written or oral submissions said to provide a basis for such a finding. There is nothing in the terms of the Commissioner's findings and conclusion (as earlier set out) which would independently warrant me drawing such a conclusion.

Conclusion

79. It follows from the above analysis that there is nothing which infects the Commissioner’s findings and conclusion in a fashion that would render the Commissioner’s reasoning process unavailable to her and, that process being available, nothing that demonstrates any unreasonableness in the approach she has taken and the conclusion to which she came. It therefore follows that the appeal must be dismissed.

Costs

80. The general position, with respect to appeals pursuant to s 56A of the Court Act, is that costs follow the event and there is no reason why I should depart from that approach in these proceedings.

Orders

81. It therefore follows that the orders of the Court are:

1. The appeal is dismissed; and

2. The Appellant is to pay the Respondent’s costs as agreed or assessed.

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Decision last updated: 03 May 2018