Bellenger v Randwick City Council

[2017] NSWLEC 1

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bellenger v Randwick City Council [2017] NSWLEC 1
Hearing dates:	1 November 2016
Date of orders:	06 January 2017
Decision date:	06 January 2017
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	The orders of the Court are: (1)   The appeal is dismissed. (2)   The appellants are to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL – appeal against a Commissioner’s decision on questions of law – refusal of consent for an off-street, hardstand car space – alleged failure to consider statutory provisions – alleged denial of procedural fairness by failing to consider submissions on statutory provisions – alleged findings of fact for which no evidence – alleged irrationality or illogicality of findings of fact – alleged misconstruction of statutory provisions – alleged consideration of irrelevant matters – alleged inadequate reasons for decision – no error on questions of law established
Legislation Cited:	Civil Procedure Act 2005 s98 Environmental Planning and Assessment Act 1979 ss 79C(1)(a)(iii), 79C(3A)(b) Land and Environment Court Act 1979 s56A Uniform Civil Procedure Rules 2005 r 42.1 and sch 1
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 of 367 Bellenger v Randwick City Council [2016] NSWLEC 1279 Boral Cement Pty Ltd v SCHAG Pty Ltd [2013] NSWLEC 203 Botany Bay City Council v Premier Custom Services (2009) 172 LGERA 338; [2009] NSWCA 226 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Goldin v Minister for Transport (2002) 121 LGERA 101; [2002] NSWLEC 75 Hill v Woollahra Municipal Council (2003) 127 LGERA 7; [2003] NSWCA 106 Hoy v Coffs Harbour City Council [2015] NSWLEC 128 Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 McGinn v Ashfield Council [2012] NSWCA 238 Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121 Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001)115 LGERA 373; [2001] NSWCA 167
Category:	Principal judgment
Parties:	Mr Christopher R Bellenger and Mrs Janice M Bellenger (Appellants) Randwick City Council (Respondent)
Representation:	Counsel: Mr C R Ireland (Appellants) Mr I J Hemmings SC (Respondent)   Solicitors: W B Scott & Tong (Appellants) Norton Rose Fulbright (Respondent)
File Number(s):	2016/226442
Publication restriction:	No

Decision under appeal

Court or Tribunal:                Land and Environment Court

Jurisdiction:                         Class 1

Medium Neutral Citation: Bellenger & anor v Randwick City Council [2016] NSWLEC 1279

Date of Decision:                 5 July 2016

Before:                                 Hussey AC

File Number:                       155403 of 2016

Judgment

Nature of appeal and outcome

1. A Commissioner of the Court, Hussey AC, dismissed an appeal and refused development consent to construct an undersized, off-street, hardstand car space at 43 Greville Street, Clovelly. The Commissioner’s written reasons and orders are 34 paragraphs long, 15 of which are his consideration: Bellenger & anor v Randwick City Council [2016] NSWLEC 1279.

2. The unsuccessful applicants have appealed against the Commissioner’s decision under s56A of the Land and Environment Court Act 1979 (“the Court Act”). The appeal under s56A of the Court Act is limited to questions of law. The appellants, in their summons commencing the appeal, raise 18 grounds of appeal where they contend that the Commissioner erred on a question of law. This is more grounds of appeal than there are paragraphs of consideration in the Commissioner’s judgment.

3. None of the grounds of appeal is sustainable. The appellants have adopted “a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law”: Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; [1996] HCA 6 and see Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368.

4. The appellants’ arguments also lacked proportion. The development proposed was simple (an off-street hardstand car space) raising simple issues (including the noncompliance with the minimum dimensions control for the hardstand car space and the consequential potential adverse effects of loss of on-street parking, obstruction of the footpath by an overhanging parked vehicle, impeding safe pedestrian movement on the footpath and setting an undesirable precedent). The simplicity of the case was demonstrated by the fact that the hearing, after undertaking a view of the site and surrounds, only took about two hours.

5. The Commissioner had expertise and long experience in engineering and town planning. He was well equipped to determine the acceptability of the proposed hardstand car space and its potential consequential impacts.

6. The Commissioner’s reasons for determination, therefore, could also be simple and proportionate to the simple nature of the proposed development and the simple issues to be determined. Simple questions can be answered with simple reasons.

7. The appellants have also adopted a “scattergun approach”, loading up the summons “with every conceivable error they believe they can identify”: Hoy v Coffs Harbour City Council [2015] NSWLEC 128 at [17], appeal dismissed in Hoy v Coffs Harbour City Council (2016) 218 LGERA 411; [2016] NSWCA 257.

8. The appellants’ arguments seek to find legal error in every infelicitous phrase, every finding of fact or statement of conclusion with which the appellants disagree and every reference to or paraphrase of provisions of statutes or planning instruments that did not support their case as well as any lack of reference to provisions of statutes or planning instruments that they believed did support their case. This involved examining too narrowly the words used by the Commissioner in his reasons for decision as if they were written by lawyer, rather than a person with a different, non-legal expertise, who uses a different mode of expression. This does not mean that there are double standards in reviewing the reasons and decisions of legally qualified Commissioners and those of non-legal Commissioners, but rather is a recognition that decision-makers with different expertise used different modes of expression in their reasons for decision: Brimbella Pty Ltd v Mosman Municipal Council at 368 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

9. At the base of all of the appellant’s arguments was a dissatisfaction with the merits of the decision made by the Commissioner. That merit determination, of course, is not reviewable on an appeal under s56A of the Court Act which is limited to questions of law.

10. The appeal should be dismissed with costs.

The Commissioner’s decision

11. The appellants had appealed against the refusal of Randwick City Council (“the Council”) of a development application to demolish part of the front veranda and masonry fence of the appellants’ semidetached dwelling and construct a hardstand car space in the front setback area. The front elevation of the dwelling has a setback of about 4.8m from the road boundary. The appellants proposed a car space with the dimensions of 3m wide and 4.72m long.

12. The relevant planning instrument was Randwick Local Environmental Plan 2012 (“RLEP”), under which this site is within the R2 Low Density Residential Zone. The relevant development control plan was Randwick Comprehensive Development Control Plan 2013 (“RDCP”), which contains detailed controls regulating the creation of parking facilities (cl 6.1) and hardstand car space configuration (cl 6.7) in Part C1 Low Density Residential. The control in cl 6.7(ii) of RDCP requires that the hardstand car space must have minimum dimensions of 2.4m x 5.4m. This is consistent with the control in cl 3.7(i) of RDCP in Part B7 Transport, Traffic, Parking and Access, which provides: “An off-street car space must be a minimum of 2.4m x 5.4m long and comply with AS 2890.1”. Australian Standard AS 2890.1, referred to in RDCP, provides in cl 2.4.1 – Angle parking spaces:

(a)    Length The nominal length of a parking space in a parking module shall be 5.4 min except as follows:

(iii)    Spaces for small cars In certain circumstances it may be appropriate to provide a space smaller than specified above for small cars. It shall be designated as a space for small cars.

The minimum dimensions shall be as follows:

(A) In Australia – 2.3m wide x 5.0m long.

13. The appellants’ proposed car space did not satisfy these controls, being of insufficient length (only 4.72m rather than 5.4m in RDCP or the minimum length for a small car of 5.0m in AS 2890.1).

14. The Commissioner considered the competing expert evidence of the potential consequences of approving the undersized car space. Mr Higgins, the traffic engineer called by the Council, contended that the undersized car space was likely to have a number of unacceptable consequences, including:

• A high probability of a parked vehicle regularly overhanging the property boundary and partially blocking the footpath or a vehicle forgoing the use of the car space as being impractically small and instead parking on the driveway in the footpath, as was common with neighbouring developments;

• Larger service vehicles or visitors with large vehicles doing likewise;

• As the site is located opposite a primary school and a future preschool, there is likely to be a significant volume of pedestrians using the footpath and any vehicle blocking the footpath would likely create an impediment to the general public, particularly members using prams and wheelchairs;

• Reversing vehicles from the car space would be immediately reversing across the footpath, with no forewarning of the reversing movement for passing pedestrians, which results in unnecessary dangerous outcomes, particularly in an area with a high volume of small children using the footpath;

• The construction of the off-street car space and driveway would remove one on-street car parking space that was able to be used by the wider public and instead reserve it for use by the appellants, albeit in a compromised arrangement (the parked vehicle overhanging the boundary or parking in the driveway on the footpath): [6], [13] and [16] of the judgment.

15. Mr Brennan, the town planner called by the appellants, disputed that there would be unacceptable adverse impacts caused by the proposed car space, contending that:

• There are many other hardstands and off-street parking arrangements in the vicinity of the site that do not meet the RDCP and AS 2890.1 provisions;

• He is not aware of any safety or amenity issues occasioned by these noncompliant parking arrangements;

• Conditions of consent could be imposed requiring the appellants and any future occupiers to have a small car that fits wholly within the 4.72m length car space;

• The loss of one on-street car parking space is offset by the creation of the off-street car parking space;

• Greville Street does not have a high demand for on-street parking, other than at drop off (am) and pick up (pm) of school children attending the existing school or the future childcare centre: [7], [10], [14], [17] and [18] of the judgment.

16. The Commissioner noted the appellants’ argument that the Court had a discretion in the application of the 5.4m control in RDCP ([12] of the judgment) and the respective evidence of Mr Brennan and Mr Higgins as to whether, in the circumstances, the discretion should be exercised: [6] – [18] of the judgment.

17. The Commissioner’s consideration and conclusion were as follows:

19.    Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. Part of the Applicant’s case relies on the precedence of a number of similar non – complying hardstands in the surrounding area, including Greville Street. However, the submissions for Council acknowledged the existence of several existing hardstands, many of which have never been approved by Council or they were approved before RDCP 2013 came into effect..

20.    In acknowledging these crossings/hardstands, the RDCP was adopted in 2013 and the Council assessment report in Ex 2 states:

“Further to the consistent advice provided by Council since 2008, it is considered that the controls relating to hardstand spaces within the RDCP 2013 have been consistently applied to development applications. Council has recognised the particular site constraints that commonly exist within the LGA for hardstand spaces for semi-detached dwellings. As shown in the referral from Council's Development Engineer, on the 24th July 2007 Council passed Mayoral Minute No 70/2007 whereby all current and future development applications shall be assessed with regard to the minimum small car requirements of the Australian Standards or 5 metres in length, whichever is the lesser.”

21.    Accordingly, I give little weight to the Applicant’s referral to other non –complying, not approved hardstands and instead give determining weight to the RDCP 2013 provisions, on the basis that they have been consistently applied and they represent the changing desired future character of the area. Consequently, considering the minimum length hardstand it is then apparent that in some circumstances it may be an unreasonable expectation for a property owner that a hardstand area with a length less that 5m would be acceptable. Whilst the experts agreed that a 5m long hardstand could be appropriate in the circumstances, the proposal is deficient and the Applicant has been unable to consider alternatives.

22.    Considering the merits, I rely on Mr Higgins engineering evidence that there is a strong likelihood of the on –site parking encroaching onto the footpath area, which would reduce the road and footpath safety. I think this would be an undesirable outcome in this street where there appears to be significant competition for on- street parking and footpath use to access the school and most likely the future preschool. This is notwithstanding references to other traffic consultant’s information that was discussed.

23.    With regard to the loss of one on – street car parking space, my assessment of the competing private and public interest considerations is the that there would be an unreasonable loss of public interest benefit because whilst the existing on –street space may be used by the Applicant, nevertheless it is available for the general public when vacant. Whilst the Applicant intends to remove the redundant driveway to No 43, this according to Mr Brennan “ whilst not providing for the reinstatement of an on street car parking space will allow for the reinstatement of an equivalent amount of grassed nature strip”. Overall, I do not consider this a positive public interest outcome.

24.    By reference to RLEP 2012 I understand that this site is within the Zone R2 Low Density Residential Zone and I have considered the zone objectives of which the following is relevant:

To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

25.    In this regard the subject property is the only semi-detached dwelling in the street and the adjoining semi has a non – complying hardstand. Whilst there are other detached dwellings that have some forms of off –street parking, I consider that the approval of this proposal for a non –complying hardstand that would presumably be noticeably marked for small car parking only, would not be one of the desirable elements of the streetscape and that it would likely introduce additional safety issues and have a negative impacts on the streetscape and amenity of residents as stated by Mr Higgins.

26.    The RDCP controls in cl 3.6 requires consideration of the overall streetscape, continuity of footpaths and the need for safe pedestrian movement together with ensuring that pedestrian and cycling safety is maintained or improved. Based on Mr Higgins opinion on which I rely, I consider the pedestrian safety will be compromised rather than maintained or improved and this contributes to the proposals refusal.

27.    The RDCP objectives in Cl 6 (C1) include that the location of parking/access facilities do not pose undue safety risks to occupants and pedestrians or adverse impacts on the amenity of neighbouring properties. Based on the foregoing evidence, I do not consider these objectives are reasonably satisfied in this case as stated by Mr Higgins.

28.    In this regard, I have carefully considered the Applicant’s proposal to acquire a smaller car and accept a condition restricting on-site parking to only small cars that have a length of no greater than 4.6m with the condition running with the land binding future residents. Also a s88E convenant could be placed on the property limiting the use of the car space to small vehicles of less than 4.6m long.

29.    Whilst I accept that there is an expectation that residents will comply with all conditions of consent, I am not satisfied that this is a reasonable condition to impose in the subject circumstances. Under the current planning controls, including the RDCP 2013, Randwick Council has not elected to approve of any undersized hardstand spaces, in a manner proposed by the Applicant (i.e. conditioning the use of an undersized hardstand or requiring s88E convenant to restrict parking to a small vehicle).

30.    In the circumstances the Court accepts the Council’s submissions that it is not in the public interest to set such a precent in this locality. The approval of other similar developments under different planning controls is not a basis for approval of this application as it sets an unacceptable precedent for other developments in the area.

31.    Furthermore, whilst I accept it is legally possible to impose such a condition and restrictions on title, on the evidence before me I do not consider this would result in a reasonable planning outcome. I do not consider the imposition of the suggested conditions addresses the fundamental constraints of the site, particularly the restricted setback of the dwelling, which then restricts the available parking hardstand area. The experts addressed the situation where a vehicle could protrude into the footpath area with Mr Higgins expressing concerns about safety and Mr Brennan saying that there is no evidence to support the notion that a car overhanging the footpath poses undue safety risks.

32.    In the subject context, with the neighbouring school and future pre – school, I consider a cautious approach to parking is reasonable and therefore I am satisfied to rely on Mr Higgins engineering opinion which is consistent with car parking objectives to ensure that car parking doesn’t pose an undue safety risk to pedestrians.

33.    Insofar as reference was made to the determination of other similar matters, including Defterios v Woollahra Municipal Council [2007] NSWLEC 434 and Deguara v Waverley Council [2012] NSWLEC 1305, I give these little weight in the current matter because they relate to other local government areas and in my assessment determining weight should be given to the facts and circumstances by reference to the provisions of the relatively recent RLEP 2012 and RDCP 2013. On this basis and for the above reasons, I consider this proposal falls into the category stated in cl 3.6 of the RDCP, which notes that “in some cases, it may not be possible to provide off –street car parking” and accordingly I consider this application should be refused.

Ground 1: Failure to consider s79C(3A)(b) of the EPA Act

18. The appellants’ first ground of appeal was that the Commissioner failed to have regard to s79C(3A)(b) of the Environmental Planning and Assessment Act1979 (“EPA Act”). That subsection provides, so far as is relevant:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(b)    if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards – is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development,

19. The appellants argued that the inference should be drawn that the Commissioner failed to have regard to this provision because:

1. the Commissioner did not expressly mention s79C(3A)(b) of the EPA Act in his judgment;

2. the Commissioner did not consider the substance of s79C(3A)(b) in making his determination. The particular formulation of words used in the provision is not found in the Commissioner’s judgment and the Commissioner did not apply the formulation in making his determination; and

3. there was reference to s79C(3A)(b) in oral submissions and in their written submissions of the appellants, yet despite this there was no reference to s79C(3A)(b) in the Commissioner’s reasons.

20. The appellants argued that s79C(3A)(b) is in two parts and required the Commissioner to be flexible in applying the standard in cl 6.7 of RDCP and allow reasonable alternative solutions that achieve the objects of that standard. Although the Commissioner did note that a discretion could be exercised in the application of the minimum length standard in cl 6.7 of RDCP (see [12] of the judgment), he did not apply both parts of the statutory formulation in s79C(3A)(b) in the exercise of that discretion. In particular, the appellants argued, the Commissioner did not consider whether the proposed development was a “reasonable alternative solution” within s79C(3A)(b).

21. The appellants argued that application of the statutory formulation in s79C(3A)(b) involves three steps. The first step is to identify the objects of the standard with respect to an aspect of the development with which the development does not comply. In this case, the standard is the minimum dimensions of a hardstand car space in cl 6.7 of RDCP. The appellants argued that the objects of that standard are the objectives in cl 6 of Part C1 of RDCP. These are:

●    To ensure car parking and access facilities do not visually dominate the property frontage or streetscape.

●    To ensure parking facilities are integrated with the architectural expression of the dwelling as in integrated element.

●    To minimise hard paved surfaces occupied by driveways and parking facilities, and maximise opportunities for deep soil planting and permeable surfaces for stormwater infiltration.

●    To ensure the location and design of parking and access facilities do not pose undue safety risks on building occupants and pedestrians.

●    To ensure the location and design of parking and access facilities do not adversely impact on the amenity of neighbouring properties.

22. The Commissioner referred only to the fourth objective (at [4] of the judgment), not to the other objectives.

23. The second step is to assess whether the proposed development (as a reasonable alternative solution) achieves the objects of the standard. The appellants argued that the Commissioner never assessed whether the proposed development achieved the objectives in cl 6 of Part C of RDCP.

24. If the proposed development does achieve the objects of the standard, the third step is that the consent authority (and the Commissioner exercising the functions of the consent authority) cannot refuse to grant development consent on the basis that the proposed development does not comply with the standard. The appellants argued that this “no refusal” interpretation is supported by the words of s79C(3A)(b) that “the consent authority … is to … allow reasonable alternative solutions”.

25. The appellants contended the Commissioner did not adopt this three step approach in form or substance and he ignored the mandatory requirement to allow the proposed development as a reasonable alternative solution that achieves the objects of the standard in cl 6.7 of RDCP.

26. The Council submitted that the appellants’ reading of the Commissioner’s judgment is wrong. The Commissioner was well aware that he had a discretion in the application of the standard in cl 6.7 of RDCP for the minimum dimensions of a hardstand car space. He said so in [12] of the judgment. The Commissioner summarised the competing expert evidence for and against exercising the discretion to allow the proposed hardstand car space that did not comply with the standard.

27. The Council submitted that the Commissioner’s discussion of other noncompliant hardstands in the vicinity and the expectations of property owners as to approval of hardstand car space with a length less than the minimum dimension fixed by cl 6.7 of RDCP clearly indicated that the Commissioner was considering whether a hardstand car space of less than 5m was acceptable and, hence, was considering the merits of departing from the 5.4m standard in cl 6.7 of RDCP. The Commissioner specifically noted (at [21] of the judgment) that the experts agreed that a 5m long hardstand car space could be appropriate in the circumstances, however not even a 5m long car space was able to be provided on the site. Finally, the Commissioner (at [28] of the judgment) considered the appellants’ proposal to acquire a smaller car and their willingness to accept conditional approval for a small car only in order to fit within a space of less than 5.4m. The Commissioner did not, therefore, seek strictly to apply the 5.4m standard, but rather was flexible in considering whether the proposed hardstand car space should be approved, notwithstanding that it did not comply with the 5.4m standard.

28. The Council submitted that the absence of express reference to s79C(3A)(b) in the judgment does not necessarily lead to a conclusion that the Commissioner did not take that relevant matter into account: Hill v Woollahra Municipal Council (2003) 127 LGERA 7; [2003] NSWCA 106 at [53].

29. The Commissioner’s judgment should be read on the basis that the Commissioner and the parties were present and understood the issues presented by them, including that the standard in cl 6.7 of RDCP was to be applied flexibly: see Hoy v Coffs Harbour City Council at [10].

30. The Council noted that s79C(3A)(b) was expressly referred to in the Council’s opening and closing addresses. The appellants referred to s79C(3A)(b) in their closing oral address and in their written submissions. The Commissioner himself, during the concurrent evidence of the experts, acknowledged that there was a discretion in the application of the standard in cl 6.7 of RDCP and asked for assistance as to whether he should exercise that discretion or not, and in particular what criteria should be used to dispense with the minimum length dimension.

31. The Council submitted that, although the Commissioner did not expressly refer to the provision, the Commissioner addressed the substance of the provision. He acknowledged that there was a discretion in the application of the 5.4m standard, addressed the evidence and arguments for and against the exercise of that discretion, and concluded that it was unacceptable to approve the proposed development that did not comply with the standard for the reasons he gave, including the unacceptable impacts on on-street car parking and safe pedestrian movement.

32. I find that the appellants have not established that the Commissioner failed to consider s79C(3A)(b). The fact that the Commissioner did not explicitly reference s79C(3A)(b) in his reasons for judgment does not of itself indicate that he did not consider the questions raised by the provision. Similarly, the failure to recite the particular formulation of words used in s79C(3A)(b) does not of itself indicate that the Commissioner did not consider the matter. I agree with the Council’s submissions that the Commissioner addressed the substance of the questions raised by s79C(3A)(b). The Commissioner’s whole judgment was concerned with whether or not to approve the proposed development that did not comply with the minimum length standard in cl 6.7 of RDCP. The Commissioner’s consideration of the evidence and the arguments regarding the consequences if the noncompliant development were to be approved is only explicable on the basis that the Commissioner understood that he had a discretion to approve the proposed development, notwithstanding that it did not comply with the minimum length standard in cl 6.7 of RDCP.

33. The Commissioner considered, in substance, the objects of the standard in cl 6.7 of RDCP for hardstand car spaces, with which the proposed development arguably would not comply. The objects of that standard included, but were not circumscribed by, the more general objectives of Part 6 of RDCP dealing with car parking and access. Of the five general objectives, only the fourth objective was in issue. The Council and its expert, Mr Higgins, contended that the proposed development’s noncompliance with the minimum length dimension would pose undue safety risks on pedestrians, while the appellants and their expert, Mr Brennan, argued to the contrary. The Commissioner considered the opposing evidence and arguments on this issue and decided in favour of the Council. This involved consideration of the issue of whether the objects of the standard would be achieved, notwithstanding that the development would not comply with the standard. The Commissioner did, therefore, deal in substance with s79C(3A)(b).

34. With respect to the appellants’ particular interpretation of s79C(3A)(b), which the appellants argued the Commissioner did not apply, there are three answers. The first is that this interpretation of s79C(3A)(b) was never put to the Commissioner at the hearing. While the appellants did reference s79C(3A)(b) in their written submissions (at paragraphs 6, 22 and 41), they only raised what they now say is the first part of s79C(3A)(b) that the provisions of RDCP are to be applied flexibly. They advanced no argument to the Commissioner relating to what they now say is the second part of s79C(3A)(b) that the proposed development is a reasonable alternative solution that achieves the objects of the standard in cl 6.7 of RDCP and that this second part mandates allowing the development. The appellants are bound by the case that they put before the Commissioner. They cannot now advance an argument that the Commissioner was required to consider s79C(3A)(b) in the way they now allege.

35. The second answer is that the appellant’s construction of s79C(3A)(b) is erroneous. First, the phrase “reasonable alternative solutions” will not ordinarily refer to the development itself that is the subject of the development application. Section 79C(3A)(b) applies if provisions of a development control plan set standards with respect to an aspect of the development that is the subject of a development application and the development application does not comply with those standards. In these circumstances, the consent authority is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. By this language, the development itself ordinarily will not be a “reasonable alternative solution” to achieve the objects of those standards for dealing with that aspect of the development, although solutions proposed in the development application that provide an alternative means of achieving the objects of those standards for dealing with that aspect of the development might be “reasonable alternative solutions”. The provision setting the standard with respect to an aspect of development may incorporate implicitly a solution that achieves the objects of the standard. Section 79C(3A)(b) requires the consent authority to allow reasonable alternative solutions, that is to say, reasonable solutions that are “alternative” to the solutions embodied in the standard that also achieves the objects of the standard.

36. Second, the verb “allow” in s79C(3A)(b) does not mean that the consent authority cannot refuse consent to a development that proposes reasonable alternative solutions that achieve the objects of the standard. What is to allowed by the consent authority are the reasonable alternative solutions, not the development itself. A consent authority also determines a development application by granting consent to the application, not by allowing it.

37. The third answer is the factual one that the second part of s79C(3A)(b) was not engaged because the appellants never suggested any reasonable alternative solutions that achieved the objects of the standard in cl 6.7 of RDCP. Clause 6.7 of RDCP sets a standard in respect to an aspect of development, being the minimum dimensions of a hardstand car space. These minimum dimensions embody a solution that achieves the objects of the standard, including not posing undue safety risks on building occupants and pedestrians. The development that was the subject of the appellants’ development application did not comply with these minimum dimensions of the standard. The development application did not propose any “reasonable alternative solutions” that would achieve the objects of the standard dealing with the minimum dimensions of the hardstand car space. Indeed, as the Commissioner found at [21] of his judgment, the appellants have been “unable to consider alternatives”. In these circumstances, the second part of s79C(3A)(b) was not enlivened and the Commissioner was not able to and was not required to consider and “allow” reasonable alternative solutions.

38. I reject ground 1.

Ground 2: Denial of procedural fairness on s79C(3A)(b) of the EPA Act

39. Ground 2 was that the Commissioner denied the appellants procedural fairness by not addressing the appellants’ submission based on s79C(3A)(b). This ground was dependent on the Court finding that the Commissioner did not consider s79C(3A)(b).

40. For the reasons I have given in relation to ground 1, the appellants have not established that the Commissioner did not consider s79C(3A)(b) and the parties’ evidence and arguments on the questions raised by that provision. Ground 2 must also fail for the same reason.

Ground 3: No evidence for finding that cl 6.7(ii) of RDCP had been consistently applied

41. Ground 3 was that:

The Acting Commissioner erred in law in finding that the minimum length standard in cl 6.7(ii) of the RDCP had been consistently applied, when in fact there was no evidence before him that that minimum length prescribed by the RDCP (5.4m) had ever been applied to any development consent, or that cl 6.7 of RDCP had been applied to any development consent at all.

42. This no evidence ground challenged the finding of the Commissioner in [21] of the judgment where he said that he gave “determining weight to the RDCP 2013 provisions, on the basis that they have been consistently applied and they represent the changing desired future character of the area”.

43. The appellants argued that “[t]here was in fact no evidence at all before the Commissioner that the 5.4m minimum length standard in cl 6.7 of the RDCP had been consistently applied. The evidence was that Council had been assessing DA’s by reference to either the minimum small car requirements of the Australian Standard, or 5m, whichever is the lesser: [20] Judgment. The minimum standard length for small car in the Australian Standard was also 5m on the evidence before the Commissioner: [12] Judgment. There was no evidence of even one standard car space that had been approved at the minimum length specified in the RDCP of 5.4m.”

44. The appellants submitted that “[t]o decide the proceedings on the basis of a finding for which there is no evidence, as the Commissioner has done, is an error of law”, citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91], Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 at [83] – [84].

45. The Council responded that there was evidence for the Commissioner’s finding and that was quoted in the immediately preceding paragraph of the judgment. The Council assessment report on the appellants’ development application had stated that “it is considered that the controls relating to hardstand spaces within the RDCP 2013 have been consistently applied to development applications”: [20] of the judgment. The language used by the Commissioner in [21] of the judgment (that the provisions of RDCP “have been consistently applied”) echoes the quoted language from the Council assessment report (that the controls within RDCP “have been consistently applied”).

46. Furthermore, the Council referred to a “Matrix of Hardstand Consents” that was tendered before the Commissioner (Exhibit 7). The Matrix set out the determinations of development applications for hardstands on 13 properties, including detailing the dimensions of the hardstand areas, whether they were approved or not, and if approved, the date they were approved. Eight out of 13 development applications were approved, but all were approved in or prior to 2011. The relevant standard, cl 6.7 of RDCP, came into force in 2013. The Matrix did not record any approvals after RDCP came into force, let alone approval of a hardstand that did not comply with the minimum dimensions in cl 6.7 of RDCP. The Council submitted that this Matrix was evidence corroborating the statement in the Council assessment report.

47. This ground fails for the reasons given by the Council: there is evidence for the Commissioner’s finding in [21] of the judgment. I reject ground 3.

Ground 4: Irrationality in finding that car space less than 5m was an unreasonable expectation

48. Ground 4 was that:

The Acting Commissioner erred in law at [20] – [21] of the decision by reasoning that the Council’s Mayoral Minute of 2007 (Mayoral Minute 70/2007) required him to find that a car space length of less than 5m was an unreasonable expectation for the subject site.

49. The appellants contended that ground 4 is related to ground 3 and “challenges an example of illogical and irrational reasoning contrary to Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. The illogical and irrational reasoning was that based on the (non-existent) evidence that the minimum standard length of 5.4m in the RDCP had been consistently applied, it was an unreasonable expectation for a property owner to have a standard car space of less than 5m (at [21] Judgment). The reference to a Mayoral Minute of 2007 stipulating that DA’s were to be assessed to a 5m minimum length does not supply the logical deficiency in the Commissioner’s reasoning as the Mayoral Minute does not establish consistent application at the 5.4m minimum standard in the RDCP, but to the contrary it flags Council’s persistent and ad hoc departure from the 5.4m minimum”.

50. The Council submitted that the appellants have not cleared the very high hurdle of proving irrationality or illogicality: see Minister of Immigration and Citizenship v Li.

51. I do not accept the appellant’s ground 4. The appellants’ argument is based on a misreading of what the Commissioner said in [21] of the judgment. For convenience, I repeat paragraphs 20 and 21 of the Commissioner’s judgment:

20.    In acknowledging these crossings/hardstands, the RDCP was adopted in 2013 and the Council assessment report in Ex 2 states:

“Further to the consistent advice provided by Council since 2008, it is considered that the controls relating to hardstand spaces within the RDCP 2013 have been consistently applied to development applications. Council has recognised the particular site constraints that commonly exist within the LGA for hardstand spaces for semi-detached dwellings. As shown in the referral from Council's Development Engineer, on the 24th July 2007 Council passed Mayoral Minute No 70/2007 whereby all current and future development applications shall be assessed with regard to the minimum small car requirements of the Australian Standards or 5 metres in length, whichever is the lesser.”

21.    Accordingly, I give little weight to the Applicant’s referral to other non –complying, not approved hardstands and instead give determining weight to the RDCP 2013 provisions, on the basis that they have been consistently applied and they represent the changing desired future character of the area. Consequently, considering the minimum length hardstand it is then apparent that in some circumstances it may be an unreasonable expectation for a property owner that a hardstand area with a length less that 5m would be acceptable. Whilst the experts agreed that a 5m long hardstand could be appropriate in the circumstances, the proposal is deficient and the Applicant has been unable to consider alternatives.

52. The Commissioner makes a number of points in these paragraphs. Before RDCP came into force, development applications for hardstand car spaces were assessed with regard to the minimum small car requirements of the Australian Standard or 5m in length, whichever was the lesser. After RDCP came into force in 2013, its controls (requiring a minimum length of 5.4m) have been consistently applied to development applications for hardstand car spaces. Consequently, considering these minimum lengths for hardstand car spaces, a property owner cannot reasonably expect that a hardstand car space with a length less than 5m would be acceptable.

53. The Commissioner, therefore, did not reason in the way the appellants argued in ground 4. There is no illogicality or irrationality in the reasons that the Commissioner did give. Ground 4 fails.

Ground 5: Failure to consider cl 2.3 of RDCP

54. Ground 5 was that:

The Acting Commissioner erred in law and failed to have regard to a mandatory relevant consideration contrary to s79C(1)(a)(iii) but not having regard to cl 2.3 (Part A2) of the RDCP, which cl requires the controls in the RDCP to be applied flexibly in circumstances where existing site constraints render compliance difficult to achieve, and requires the variation of the numerical control (5.4m) to be assessed against the degree or numerical extent of the variation from the control.

55. Clause 2.3 of Part A of RDCP provides, in part:

Proposals are expected to comply with the numerical controls in this DCP. Any proposed variation from the controls may be considered only where the applicant successfully demonstrates that an alternative solution could result in a more desirable planning and urban design outcome. This ensures that the DCP guidance has sufficient flexibility to recognise that every property has different characteristics based on their unique combination of site conditions, size, aspect and locations. The context and site analysis will be critical in demonstrating the need for any variations to the numerical controls.

Any proposals seeking to vary the numerical controls will be assessed against the following criteria:

(i)    Consistency with the general objectives of the LEP, and the general objectives and specific control objectives of this DCP.

(ii)    The degree or numerical extent of variation from the control.

(iii)    The presence of any existing site constraints rendering strict compliance difficult to achieve, such as:

-    Site topography

-    Site orientation

-    Allotment configuration

-    Allotment dimensions

-    Existing building structures to be retained

(iv)    Potential impacts on the structural stability, visual amenity, solar access, privacy and views of the adjoining properties as a result of the variation.

(v)    Potential impacts on the public domain in terms of streetscape character, views and vistas and pedestrian amenity.

(vi)    Whether strict compliance with the controls will or will not permit construction of a building with reasonable dimensions, internal amenity, open space provision and architectural character.

56. The appellants submitted that cl 2.3 of Part A of RDCP required flexible application of the control in cl 6.7 of RDCP and required consideration of whether the circumstances of the site rendered strict compliance difficult to achieve (ie the limited available space in front of the appellants’ dwelling house) and the degree of numerical variation (4.72m compared to 5.4m).

57. The appellants pointed out that cl 2.3 is not mentioned in the judgment, not even in [4] where the Commissioner cited the relevant parts of RDCP. The failure to consider a provision of RDCP that was directly pertinent to the application was contrary to s79C(1)(a)(iii) and the principles in Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167 and Botany Bay City Council v Premier Custom ServicesPty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226 at [32].

58. The appellants submitted that the failure to consider RDCP as a whole and the flexibility provision in cl 2.3 in particular resulted in a failure to take RDCP into account and to give a directly pertinent provision significant weight. In contrast to the holistic approach in applying the dual occupancy standard in the DCP taken by Biscoe J and the Court of Appeal in McGinn v Ashfield Council [2012] NSWCA 238 (see at [65] – [67], for example), what was done by the Commissioner was to impermissibly have regard to the 5.4m length standard in isolation from the flexibility overlay in cl 2.3 that governed its operation.

59. The appellants submitted that the central relevance of cl 2.3 of Part A of RDCP to the issue before the Commissioner was clear. It was the subject of submissions by the appellants in their written submissions but it was not addressed by the Commissioner. The Commissioner ignored its requirements to assess a variation from cl 6.7 in its numerical control against the objectives of RLEP and the objects of cl 6.7 despite the appellants’ submissions. Indicative of this is that at [4] of the judgment, only one of the objectives of cl 6 is quoted, being the fourth objective. Other relevant objectives were not considered by the Commissioner or reproduced in his judgment.

60. The appellants submitted that the objectives of RLEP are not mentioned anywhere in the judgment. These objectives were required to be considered by cl 2.3 of RDCP. These objectives include, at cl 1.2(ii)(c) and (e) of RLEP:

(c)    to support efficient use of land ... integration of land use and transport,

…

(e)    to promote sustainable transport …

61. The appellants submitted that their whole objective was to provide a parking space in their own front yard specifically for a small car. This was consistent with both of these objectives of RLEP.

62. The Council submitted that this ground of appeal suffers the same fate as ground 1. For the reasons that the Council gave in relation to the ground 1, it is clear that the Commissioner did flexibly apply the 5.4m control in cl 6.7 of RDCP.

63. I find that the appellants have not established that the Commissioner failed to consider cl 2.3 of RDCP. As I have held in relation to ground 1, the fact that the Commissioner did not refer explicitly to cl 2.3 or recite its terms in his judgment does not of itself establish that the Commissioner failed to consider it. It was also not necessary for the Commissioner to discuss separately the standard in cl 6.7 and the flexibility to vary the standard in cl 2.3 of RDCP. Both provisions could be considered globally, provided the substance of the matters raised by the provisions was addressed.

64. The Commissioner did consider the substance of the matters raised in cl 2.3 as were of relevance to his consideration of whether to approve a variation from the minimum length dimension of 5.4m in cl 6.7 of RDCP by granting consent to the proposed hardstand car space with a length of 4.72m. For example, the Commissioner did consider the substance of the matters in cl 2.3(ii) and (iii), contrary to the appellants’ arguments. The Commissioner was well aware of the numerical extent of the variation from the control: 4.72m compared to 5.4m. He set out these lengths in the judgment. The Commissioner did not need to set out the subtraction involved. The Commissioner was well aware of the existing site constraints. He had undertaken a site inspection with the parties where the limited front setback was plain to see. He specified in his judgment the setback from the front elevation of the building was “in the order of 4.8m from the road boundary” (at [1] of the judgment). He specifically stated in [31] of the judgment that “the fundamental constraints of the site, particularly the restricted setback of the dwelling … restricts the available parking hardstand area”. The Commissioner’s discussion of the high likelihood that a car parking in an undersized car space would overhang the footpath is a product of the site constraint: there is insufficient room on site.

65. The fact that the Commissioner may not have expressly referred to the objectives of RLEP or Part 6 of RDCP causes no error of law warranting the intervention of the Court on an appeal. The objectives referred to by the appellants were not dispositive in the Commissioner’s consideration and determination. Whether or not the development would satisfy the objectives in cl 1.2(ii)(c) and (e) of RLEP to “support efficient use of land, integration of land use and transport” or “promote sustainable transport” was of no consequence to the Commissioner’s decision. What was of consequence to the Commissioner’s decision were the other objectives and issues concerning the potential adverse impacts of the undersized hardstand car space on on-street parking, pedestrian safety and precedent. The Commissioner considered and gave reasons for his determination on these objectives and issues.

66. I reject ground 5.

Ground 6: Denial of procedural fairness on cl 2.3 of RDCP

67. Ground 6 was that “[t]he Acting Commissioner erred in law and denied the Applicants procedural fairness by not addressing the Applicants’ submissions based on cl 2.3 of the RDCP”.

68. Ground 6 was consequential on the appellants’ argument in ground 5 that the Commissioner failed to have regard to cl 2.3 of RDCP. For the reasons I have given in relation to ground 5, the appellants have not established that the Commissioner failed to have regard to cl 2.3 of RDCP. Ground 6 therefore also fails.

Ground 7: Misconstruction of zone objective

69. Ground 7 was that:

The Acting Commissioner erred in law at pars [24] and [25] of the decision and misconstrued the zone objective of the R2 Low Density Residential Zone being “to recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area”, by construing this objective as requiring the proposed car space in itself to be a desirable element of the streetscape, rather than requiring the consent authority to consider the existing streetscape and built form.

70. The appellants categorised ground 7 as a statutory misconstruction ground, the misconstrued provision being that the objective of the R2 Low Density Residential Zone required the Commissioner to “recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area”.

71. The appellants contended that the Commissioner did not construe this objective as a reference to the existing built form, but as a direction to consider whether the car space to be built would itself be a desirable element in the streetscape: see [25] of the judgment.

72. The Council responded that the Commissioner recognised that he was required, by cl 2.3(2) of RLEP, to have regard to the objectives of the zone. He said so in [24] of the judgment and set out the third objective of the R2 Low Density Residential Zone. Consideration of that objective required identifying the desirable elements of the existing streetscape and built form or that contribute to the desired future character of the area.

73. The Council submitted that, in [25] of the judgment, the Commissioner made factual findings about the existing, noncompliant hardstand in the adjoining semidetached dwelling and the off-street parking in other detached dwellings, which implicitly he found not to be desirable elements in the existing streetscapes; the proposal was for another noncompliant hardstand that would introduce additional safety issues and have negative impacts on the streetscape and amenity of the residents; and therefore, it would also not be a desirable element in the streetscape. This involved consideration of the zone objective. There was no misconstruction of the zone objective by finding that the existing hardstand and off-street car parking and the proposed hardstand are not desirable elements of the streetscape.

74. I agree with the Council’s submissions. The requirement in cl 2.3(2) of RLEP is to have regard to the objectives for development in the relevant zone when determining a development application in respect of land within the zone. The appellants’ development application was to construct a hardstand car space where there currently was not one. The absence of a hardstand in the front setback was part of the existing streetscape. The Commissioner identified other sites where hardstands and off-street car parking had been constructed. These formed part of the existing streetscape. Implicitly, the Commissioner found that the existing hardstands and off-street car parking were not desirable elements in the streetscape. The Commissioner found, as a matter of fact, that adding another noncompliant hardstand car space would not be a desirable element of the streetscape.

75. Although the Commissioner expressly found that the proposed hardstand car space would not be a desirable element in the streetscape, implicit in this finding is the recognition that the existing front setback, without any hardstand, was a desirable element of the existing streetscape. The Commissioner found that it was not desirable to change this element of the existing streetscape.

76. I reject ground 7.

Ground 8: No evidence for finding on noticeable marking for small car parking only

77. Ground 8 was that:

The Acting Commissioner erred in law in par [25] by finding that the proposed car space would be “noticeably marked for small car parking only” and would for that reason not be a desirable element of the streetscape, when there was no evidence before him that the car space would be so noticeably marked or that this was a proposed condition of consent.

78. The appellants argued that there was no evidence for the Commissioner’s finding that the proposed car space would be “noticeably marked for small car parking only”. To make a factual finding for which there is no evidentiary basis is to make an error of law. The appellants contended that no such signage requirement for small car use only was suggested by either party or proposed in the conditions of consent. The appellants argued that this finding that there would be noticeable marking for small car usage only affected the Commissioner’s finding that the proposed hardstand would not be a desirable element in the streetscape.

79. The Council submitted that this ground fails for two reasons. First, the Commissioner was making an assumption and not a finding of fact, as his language “presumably to be noticeably marked” makes clear. Second, there was evidence for the Commissioner’s assumption:

●    at transcript 28.33 – 49 the expert accept that trade vehicles and visitors could protrude (if they were not small vehicles);

●    at transcript 25.21 Mr Brennan accepts that you should park a car in that space that fits in that space;

●    in his Statement of Evidence (at Folio 362) Mr Brennan states that “the hardstand car parking space house only a small motor vehicle”;

●    At judgment [14] the Commissioner summarises Mr Brennan’s evidence saying that a small space will be clearly designated.

80. I find this ground fails. First, the appellants have misread what the Commissioner said. The Commissioner was not saying that the noticeable marking of the space would not be a desirable element in the streetscape; it was the proposal for a noncompliant hardstand car space that would not be a desirable element in the streetscape. The reference to the hardstand “presumably [being] noticeably marked for small car parking only” was an aside. Second, in saying this, the Commissioner was making an assumption, not a finding of fact. Third, the assumption was reasonable on the evidence. The appellants’ whole case was that the undersized hardstand car space would not lead to the adverse effects on on-street parking, pedestrian safety and precedent argued by the Council and its expert because the appellants would buy a small car that would fit within the undersized car space and would accept the conditions restricting on-site parking to only a small car (as the Commissioner noted in [28] of the judgment). The appellants’ expert, Mr Brennan, so contended in his evidence.

81. I reject ground 8.

Ground 9: No evidence for finding that existing hardstands were not approved

82. Ground 9 was that:

The Acting Commissioner erred in law by finding at [19] of the decision that many of the hardstand car spaces which were relied on by the Applicants in the locality and adjoining premises had never in fact been approved by the Respondent, when there was no evidence before him to support a finding in those terms.

83. The Commissioner’s finding in [19] was that many of the existing hardstands in the surrounding area “have never been approved by Council or they were approved before RDCP 2013 came into effect.”

84. The appellants submitted that if the Commissioner’s finding in [19] was intended to be a reference to the 4.6m car space at 43A Greville Street (the semidetached dwelling attached to the appellants’ dwelling at 43 Greville Street) being approved at 4.7m, then it goes too far. That car space was undoubtedly “approved” by the Council, as were all the other car spaces surrounding 43 Greville Street, and any minor noncompliances with their approval (such as 0.1m over 4.6m in this case) does not render them “unapproved”.

85. The Council responded that there clearly was evidence for the Commissioner’s finding:

(1)    The parties went on a view of the site and surrounds (see judgment [19]);

(2)    The parties consented to the Commissioner taking what he saw and heard into account (see Transcript 1.41);

(3)    The Court observed a number of unapproved or noncompliant parking spaces (see Transcript 33.34 – 42);

(4)    Exhibit 7 (Court Book Folio 312) was a Matrix of Hardstand Consents setting out hardstands that had been approved, not approved and/or approved prior to RDCP 2013.

86. I agree with the Council’s submission. There was evidence for the finding. I reject ground 9.

Ground 10: Denial of procedural fairness by not considering appellants’ submission on another decision

87. Ground 10 was that:

The Acting Commissioner erred in law and denied the Applicants procedural fairness by not considering their submission (citing Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121) that the minimum length standard in the recently made RDCP needed to be moderated by the existing built form in the locality to which the RDCP was being applied (that existing built form containing many car spaces below either 5.4 or 5m in length).

88. The appellants argued that they had submitted in the hearing before the Commissioner that the minimum length requirement in the new RDCP needed to be moderated by reference to the existing built form and relied on the extempore decision of Commissioner Dixon in Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121. That submission was contained in paragraph 6 of the appellants’ written submissions handed to the Commissioner, which stated:

The Applicants’ case is that even if larger and longer vehicles were to use the hardstand car space, there is no pedestrian safety risk created thereby as persons can easily negotiate any projection at this point (including by deviating onto the concrete expanse of the driveway using the generous frontal verge at this point), that the flexible and practical application of the RDCP and the Australian Standard is required consistently with s79C(3A) and the objectives of the RDCP, and that appropriate consideration needs to be given to the fact that there are many small car spaces in adjoining and proximate properties in the surrounding locality. The Applicants submit that the approach taken by the Court in Deguara v Waverley Council; Coop v Waverley Council [2012] NSWLEC 1305 is applicable here, as is the acknowledgment in Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121 that the provisions of a council DCP need to be applied in the context of the existing built form in the locality.

89. The appellants contended that the submission based on this case was not addressed by the Commissioner. The failure to address this submission denied the appellants procedural fairness: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [43], [44] and [99].

90. The Council responded in at least three ways. First, there was no duty on the Commissioner to consider every submission made, only submissions on the principal contested issues that were joined between the parties. The reference in the appellants’ written submissions to the decision of another Commissioner was not a submission on a principal contested issue that needed to be addressed.

91. Second, the Council contended that the appellants’ submission was nonsensical. It seems to suggest that as the space available was undersized because of the physical limitations (the existing building), therefore it should have been approved as an undersized space. Such an approach would make a merit appeal simple. But that is not the approach. In any event, it ignores the substance of the Commissioner’s approach which was to acknowledge the controls (RDCP and the Australian Standard), consider the physical limitations, consider the impacts and exercise his discretion (as it happened unfavourably to the appellants).

92. Third, the Council submitted that if the appellants’ submission based on that case was that the Commissioner needed to consider the provisions of RDCP in the context of the existing hardstands with a length less than the minimum dimension of 5.4m, the Commissioner did just that. The Commissioner considered the evidence of the appellants’ expert and the appellants’ arguments concerning the existing, noncompliant hardstands in the neighbourhood and the appellants’ expert’s lack of awareness of any safety or amenity issues occasioned by these noncompliant hardstands: see [7], [10], [19], [21], [25] and [30] of the judgment. The Commissioner did not, however, agree with that evidence or those arguments. The Council contended, therefore, that the Commissioner did address the substance of the appellants’ submission based on that case.

93. I find that the appellants have not established this ground. First, the appellants in their arguments on this appeal pitch the submission differently and higher than the submission they actually made to the Commissioner. I have set out the actual terms of the submission that the appellants made before the Commissioner. All that was said about the case was “the acknowledgement in Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121 that the provisions of a council DCP need to be applied in the context of the existing built form in the locality”. The case was not relied on as establishing any other proposition. The proposition that “the provisions of a council DCP need to be applied in the context of the existing built form in the locality” is trite. No authority is needed for the obvious.

94. Second, the Commissioner was not obliged to specifically address in his reasons the passing reference to another case made at the end of a larger submission (see the points made earlier in paragraph 6 of the appellants’ written submission). As held in Segalv Waverley Council at [99], the Commissioner was obliged only to consider the principal contested issues. Each of the principal contested issues is the genus, of which various arguments in favour or against the resolution of the issue in a particular way are species. It was unnecessary for the Commissioner to consider each of the species, provided the Commissioner considered, and addressed in his reasons, the genus. The Commissioner clearly did deal with the principal contested issues concerning the noncompliance of the proposed hardstand car space with the minimum length dimension, the potential consequences of the noncompliance on parking, pedestrian safety and precedent, and the arguments for and against variation from the control, including the existence of noncompliant hardstands in the locality. It was unnecessary for the Commissioner to consider the species of argument which cited the previous case in favour of resolution of those principal contested issues in the way the appellant wished.

95. Third, in any event, the Commissioner did do what the appellants’ submission asked that he do, which was to apply the provisions of RDCP in the context of the existing built form of the locality. As the Council submitted, the Council considered the appellants’ evidence and arguments that other noncompliant hardstands in the neighbourhood had not occasioned safety or amenity issues, but the Commissioner did not accept that evidence or those arguments.

96. I reject ground 10.

Ground 11: No evidence for finding that undersized car spaces not approved

97. Ground 11 was that:

The Acting Commissioner erred in law by finding that “Randwick Council has not elected to approve of any undersized car spaces” subject to conditions, under the RDCP, when there was no evidence before him to support that finding.

98. This impugned finding was in [29] of the Commissioner’s judgment:

29.    Whilst I accept that there is an expectation that residents will comply with all conditions of consent, I am not satisfied that this is a reasonable condition to impose in the subject circumstances. Under the current planning controls, including the RDCP 2013, Randwick Council has not elected to approve of any undersized hardstand spaces, in a manner proposed by the Applicant (i.e. conditioning the use of an undersized hardstand or requiring s88E convenant to restrict parking to a small vehicle).

99. The appellants submitted that this “surprising finding” was not supported by any evidence. The evidence was, to the contrary, that the Council had continued to approve hardstands by reference to the 5m minimum in the 2007 Mayoral Minute. There was evidence that the 4.8m car space at 41 Greville Street was approved in 2011 (this was said to be approved at 5m by Council, still a significant deviation from the RDCP’s 5.4m minimum standard).

100. The Council responded that there was evidence to support the finding, including the Matrix of Hardstand Consents that did not record any approval of any undersized hardstands after the coming into force of RDCP in 2013 and the Council assessment report on the appellants’ development application stating that “the controls relating to hardstand spaces within the RDCP 2013 have been consistently applied to development applications”.

101. I agree with the Council’s submission. There was evidence for the Commissioner’s finding. The appellants have misread the Council assessment report (extracted in [20] of the judgment). It did not say that the Council had continued, after the coming into force of RDCP, to approve hardstands by reference to the 5m minimum in the Mayoral Minute. The appellants’ argument on ground 11 is thereby undermined.

102. I reject ground 11.

Ground 12: Irrationality of finding that condition limiting car space to small cars is unreasonable

103. Ground 12 was that:

The Acting Commissioner erred in law and reasoned and decided in a legally unreasonable manner by finding (contrary to the reasoning and decision in the decided cases of Defterios v Wollahra Municipal Council [2007] NSWLEC 434 and Deguara v Waverley Council [2012] NSWLEC 1305) that a condition expressly limiting the use of the car space to small vehicles or vehicles below a specified length as strict compliance with minimum length controls in the RDCP was unachievable due to site constraints, was not a reasonable condition to impose on this proposal, on the basis that:

i.    those cases related to other local government areas,

ii.    Randwick Council had not elected to approve any undersized car spaces in a manner proposed by the Applicant (that is, subject to a condition), and/or

iii.    determining weight was required to be given to the RDCP.

104. The Commissioner dealt with the appellants’ argument that a condition limiting the use of the proposed car space to small cars at [28] to [33] of the judgment.

105. The appellants submitted that “[t]o dismiss this type of condition found acceptable in the Defterios and Deguara cases on the basis that they were dealing with development in a different LGA and in deference to Council’s submission that its new RDCP should be applied (in effect) as a pristine new set of standards imposing a strict 5.4m minimum in circumstances where the existing built form contained numerous small spaces of around 4.72m and Council’s own policy is to depart from the 5.4m standard (the Mayoral Minute) is to adopt a process of reasoning that is irrational and legally unreasonable. It elevates the form of local government bureaucracy and administration (by giving crucial significance to different LGA in which those cases were decided) over planning substance and endorses Council’s managerialist objective of having the RDCP minimum length standard applied (contrary to the Act, the words of the RDCP itself, and Council’s own policy) as a pristine document to be strictly applied without any variation.”

106. In their submissions in reply, the appellants contended that “[t]he irrational aspects of the reasoning that are impugned in this ground are those set out at Judgment [29] and [33]. Prior cases accepting the reasonableness of such conditional approval were dismissed by reason of the fact that they were in relation to other LGAs, the finding based on no evidence that the Respondent had not elected to approve any undersize car space subject to such a condition and the current planning controls, and the need to strictly apply the RDCP cl 6.7 standard and give it to determinative weight. The absurdity of relying on the latter limb of the reasoning is that the Commissioner in fact construes cl 6.7 is having transmogrified into the 5m stipulation in the 2007 Mayoral Minute. How can that DCP control have been given determinative weight when it was set aside in favour of the Mayoral Minute?”

107. The Council responded that the appellants’ arguments are based on a misreading of the Commissioner’s reasons for judgment. The Commissioner was not requiring strict compliance with the 5.4m control in cl 6.7 of RDCP. There was nothing irrational or illogical about the Commissioner’s findings. The appellants cannot overcome the very high threshold required for an irrational or illogical decision.

108. I find that the appellants have not established that the Commissioner’s statements of conclusion in [29] – [33] of the judgment are so irrational or illogical as to be errors of law. First, the appellants’ argument that they were irrational or illogical was dependent in part on its misreading of other findings in the Commissioner’s judgment. As I have held earlier, I reject the appellants’ arguments that the Commissioner’s finding that the Council had not approved undersized car spaces after the coming into force of RDCP in 2013 was based on no evidence and that the Commissioner believed he needed to strictly or inflexibly apply the standard in cl 6.7 of RDCP.

109. Second, the appellants misread what the Commissioner said in [29] - [33] of the judgment. The Commissioner did not say what the appellants say he decided in ground 12 of the summons, namely “that a condition expressly limiting the use of the car space to small vehicles or vehicles below a specified length as strict compliance with minimum length controls in the RDCP was unachievable due to site constraints, was not a reasonable condition to impose on this proposal”.

110. What the Commissioner did say in [28] was that “I have carefully considered the Applicant’s proposal to acquire a smaller car and accept a condition restricting on-site parking to only small cars that have a length of no greater than 4.6m with the condition running with the land binding future residents. Also, a s 88E covenant could be placed on the property limiting the use of the car space to small vehicles of less than 4.6m long.” The Commissioner accepted in [31] that “it is legally possible to impose such a condition and restrictions on title.” He also accepted in [29] that “there is an expectation residents will comply with all conditions of consent.” Hence, the Commissioner was not saying that he could not impose such a condition or restriction on title.

111. Rather, the Commissioner found, in the exercise of his judgment, that such a condition would not be “a reasonable condition to impose in the subject circumstances” (at [29]). He then identified the “subject circumstances”. First, the Council has not approved undersized hardstand spaces in the manner proposed by the appellants by conditioning the use of an undersized hardstand or requiring a s88E covenant to restrict parking to a small vehicle (at [29]). Second, it is not in the public interest to set such a precedent in this locality (i.e approving conditionally undersized hardstand car spaces) (at [30]). Third, “[t]he approval of other similar developments under different planning controls is not a basis for approval of this application as it sets an unacceptable precedent for other developments in the area” (at [30]). Fourth, imposing such a condition and restrictions on title would not “result in a reasonable planning outcome”. The imposition of the suggested conditions would not address “the fundamental constraints of the site, particularly the restricted setback of the dwelling, which then restricts the available parking hardstand area” (at [31]). Fifth, in the context where there is a neighbouring school and future preschool nearby, “a cautious approach to parking is reasonable … to ensure that car parking doesn’t pose an undue safety risk to pedestrians” (at [32]).

112. The Commissioner’s conclusion that it would not be reasonable in these identified circumstances to impose the conditions suggested by the appellants was open to the Commissioner. There was nothing irrational or illogical about the conclusion, for the reasons that he gave for reaching that conclusion.

113. I reject ground 12.

Ground 13: No evidence for finding off-street parking not possible

114. Ground 13 was that:

The Acting Commissioner erred in law in finding that the proposal was within the “Note” to cl 3.6 (Part B7) of the RDCP which provided that in some cases it may not be possible to provide off-street car parking, on the basis of no evidence and contrary to the evidence before him which was of numerous off-street car spaces serving adjoining properties (next door) and in the immediate locality”.

115. The impugned finding was in [33] of the judgment where the Commissioner concluded his reasons by saying:

On this basis and the above reasons, I consider this proposal falls into the category stated in cl 3.6 of the RDCP, which notes that “in some cases, it may not be possible to provide off-street car parking” and accordingly I consider this application should be refused.”

116. The appellants submitted that the finding that off-street parking on this site is not possible is legally unreasonable and absurd. “The adjoining “other half” of the semidetached dwelling at 43A – 43 Greville Street is a site of a 4.6m car space. There are numerous small car spaces on this street and in the vicinity. It is quite simply absurd to conclude that on this site it is not possible to provide off-street parking, yet this is exactly what the Commissioner found”.

117. In their submissions in reply, the appellants further submitted that “[w]hen the whole of cl 3.6, Part B is considered, it is apparent that the phrase is also taken out of context as the DCP at this point is referring principally to heritage areas which may constrain the ability to establish such car parking … Clause 3.6 is addressing car park location and design generally, and not car park size, which is addressed by the specific provision in cl 6.7. As a matter of conventional principles of construction, cl 6.7 governs the matter of hardstand car park length in the DCP. The note at the end of cl 3.6 is therefore taken out of context and when applied to the context before the Commissioner, results in a finding that … is just not supported by the evidence”.

118. The Council submitted that, although ground 13 was framed as an error for a decision made with no evidence, or contrary to evidence, that ground was abandoned by the submissions made by the appellants. The submissions pressed the ground as being legally unreasonable or absurd.

119. The Council submitted that it cannot be suggested that there was no evidence for the Commissioner’s finding because, as the Commissioner said at [33] of the judgment, his conclusion is based upon his reasons set out earlier in the judgment.

120. The Council submitted that to the extent that the appellants suggested that the Commissioner’s finding was legally unreasonable or absurd, that submission was mischievous. Although it may be possible to squeeze in a physically insufficient, operationally unsafe and aesthetically uncharacteristic hardstand, that is beside the point of both the note and the Commissioner’s finding.

121. I find that the appellants’ argument is based on a misreading of the Commissioner’s reasons for judgment. The Commissioner was not saying that it was not physically possibly to construct an off-street car parking space in the front setback of the appellants’ dwelling house. Of course it was possible and the whole case concerned whether such an undersized car parking space ought to be approved.

122. The Commissioner had reached the end of his judgment by the time he made his comment in [33], using the wording of the note to cl 3.6 of RDCP. He had explained his reasons why he did not support the proposed variation from the minimum length control in cl 6.7 of RDCP so as to allow the undersized car parking space sought by the appellants. Perhaps wistfully, perhaps with a rhetorical flourish, the Commissioner simply concluded by saying that, in the circumstances, the appellants’ proposal fell into the category of off-street car parking spaces that could not be provided. That is to say, if the off-street car parking space did not comply with the minimum dimensions in the control and the proposed variation from the control cannot be justified, it will not be possible to provide the undersized off-street car parking space.

123. Third, the Commissioner’s rhetoric did not involve application of cl 3.6 or the note to cl 3.6. No question of interpretation of cl 3.6 or the note arose at this point in the Commissioner’s judgment. The Commissioner simply happened upon the phrase in the note and used it to conclude his reasons. No misdirection was involved in so doing so.

124. There is nothing irrational or illogical in the Commissioner’s statement. I reject ground 13.

Ground 14: Considering irrelevant matter of precedent

125. Ground 14 was that:

The Acting Commissioner erred in law finding that the proposal should not be approved as it set an unacceptable precedent for unspecified “other developments in the area”, this being an error or law because:

(i)    there is no doctrine of planning precedent as a matter of law,

(ii)    each development application must be considered on its merits,

(iii)    in so reasoning the Acting Commissioner had regard to an irrelevant consideration being hypothetical future development applications other than that which was before the Court, and

(iv)    in so reasoning the Acting Commissioner impermissibly gave determinative weight to the Respondent’s view that the RDCP should be strictly and inflexibly applied, contrary to both the existing character and built form of the area, and to s79C(3A) of the EP&A Act.

126. The impugned finding was in [30] of the judgment where the Commissioner stated:

In the circumstances the Court accepts the Council’s submissions that it is not in the public interest to set such a precedent in this locality. The approval of other similar developments under different planning controls was not a basis for approval of this application as it sets an unacceptable precedent for other developments in the area.

127. The appellants submitted that Segal v Waverley Council (at [56]-[64]) establishes that a planning decision by a commissioner is administrative and has no precedential effect on future development application determinations. It follows, the appellants submitted, that the Commissioner’s finding in [30] was contrary to law, as it incorrectly assumed that the Commissioner’s decision would have a precedential affect and also invoked the notion that the RDCP must be inflexibly applied, contrary to s79C(3A)(b) of the EPA Act.

128. The Council submitted that the appellants’ submission in relation to Segal v Waverley Council goes too far. That decision identifies the scope of a commissioner’s duty to give reasons for not following the decision of another commissioner. Here, ground 14 has nothing to do with the adequacy or otherwise of the Commissioner’s reasons.

129. The Council submitted that precedent may be taken into consideration. In Goldin v Minister for Transport (2002) 121 LGERA 101; [2002] NSWLEC 75, Lloyd J held that the commissioner in that case “did not err in law in taking into consideration the fact that approval of the application would be a precedent. That was not an irrelevant consideration” (at [34]).

130. The Council also noted that the ground 14 relies upon the false premise of the Commissioner requiring strict compliance with the 5.4m control in RDCP. The Commissioner did not do so.

131. The appellants replied that the Commissioner should be seen as having refused the development application in part because of its perceived precedential effect and in part because of its perceived effect on the future ability of the Council to strictly apply the RDCP. As to the first, the appellants repeated their submission that the Commissioner’s decision will not bind future decision-makers and will not even need to be considered, citing Segal v Waverley Council. The appellants distinguished Goldin v Minister for Transport on the basis that the Commissioner in the present case did not make a finding that there was a “sufficient probability of future development of a like kind”, as the commissioner had done in that case: [28] and [29] of Goldin.

132. As to the second, the appellants submitted that it was an irrelevant matter whether the approval of the proposed space would make it more difficult for the Council to strictly adhere to the cl 6.7 RDCP standard, as 79C(3A)(b) of the EPA Act requires flexible application of the RDCP standard.

133. I find that the appellants have not established that the Commissioner has taken into account an irrelevant matter. First, the fact that approval of the proposed undersized car parking space might set a precedent was not an irrelevant matter. An irrelevant matter is one which the statute, either expressly or by implication from the subject matter, scope and purpose of the statute, limits the decision-maker from taking into account in the exercise of the power: see Minister of Aboriginal Affairs v Peko-Wallsend Limited (1996) 162 CLR 24 at 40. None of the EPA Act, RLEP or RDCP so limit a consent authority from taking into account the potential precedential effect of approving a development that does not comply with relevant controls. The potential precedential effect was not an irrelevant matter, as Lloyd J correctly held in Goldin v Minister for Transport.

134. The appellants’ argument that the Commissioner held that the control in cl 6.7 of RDCP needed to be strictly and inflexibly applied is erroneous. The Commissioner did not say that in the impugned paragraph of his reasons or elsewhere in his reasons. As I have held earlier, the Commissioner’s whole judgment was concerned with whether to approve the proposed variation of the control. The Commissioner, therefore, did not have regard to the allegedly irrelevant matter that the RDCP must be inflexibly applied, contrary to s79C(3A)(b).

135. I reject ground 14.

Ground 15: Considering irrelevant matter of requiring positive public interest outcome

136. Ground 15 was that:

The Acting Commissioner erred in law finding it par [23] of the decision that the proposal should be refused as it did not provide on balance a “positive public interest outcome”, when no finding of a positive interest outcome was required by any applicable planning control, or by s79C of the EP&A Act, and where the asserted need to establish a “positive public interest outcome” as a prerequisite for consent was not an issue in the proceedings.

137. The appellants submitted that although s79C(1)(e) of the EPA Act requires consideration of the public interest, there is no requirement in the EPA Act or RLEP that, before a development application can be approved, a development must have a positive public interest outcome or benefit. The Commissioner reasoned to the contrary. It was irrelevant consideration.

138. The Council submitted that it had, in contention 4(b) of the statement of facts and contentions before the Commissioner, identified the loss of one on-street parking space as a concern to the Council. It was also a live issue in the proceedings:

●    the applicant cross examined on the issue (Transcript 29.37-30.22);

●    The applicant closed on it (Transcript 30.15-26 in written submissions [37]);

●    The experts conferred and expressed opinions upon it in the Joint Report (Court Book Tab 7 Folio 247).

139. The Commissioner was interested to assess the competing private and public interest considerations associated with the creation of a private, off-street car parking space and the loss of a public, on-street car parking space. The appellants did not object to that course.

140. The Council also submitted that whether or not there was a positive public interest outcome was a matter falling within the mandatory relevant consideration of the public interest in s79C(1)(e) of the EPA Act, and therefore was not irrelevant.

141. I find the appellants have not established that the Commissioner erred in law by making the finding at [23] that the loss of an existing on-street car parking space, that was available for the general public, would not be a positive public interest outcome. This was simply a finding of fact. The Commissioner did not hold, as a legal test, that to be approved a development must have a positive public interest outcome. The Commissioner did not misdirect himself as to the law or take into account any irrelevant matter.

142. I reject ground 15.

Ground 16: Irrational finding of loss of public interest benefit

143. Ground 16 was that:

The Acting Commissioner erred in law and reasoned and decided the case in a legally unreasonable manner by finding that the loss of a single on-street car space due to the revision of a driveway for a proposed car space was an “unreasonable loss of public interest benefit”, this finding being illogical and irrational given the evidence that either that, or a proximate on-street car space along Greville St, would inevitably be used by the Applicants as there was no off-street parking on the subject property”.

144. This ground concerned the same finding of the Commissioner in [23] of the judgment.

145. The appellant submitted that the finding was illogical and legally unreasonable as, on the evidence, there would be a one for one replacement of an off-street car space (occupied by the appellants) with an on-site car space with no net detriment to on-street car parking availability.

146. The Council submitted that the appellants do not get over the high hurdle of the illogicality and irrationality ground. The Council submitted that, on the evidence, “it was clearly available to the Commissioner to conclude that public access to a parking space would be diminished. The logic is simple. If the Applicant does not have a hardstand car space and so parks on the street, when the car is not there, the space is available to the public. However, if the Applicant has an off-street hardstand, the driveway takes out a public parking space whether the Applicant is using the hardstand or not”.

147. I find that appellants have not established that the Commissioner’s finding is so illogical or irrational as to be an error of law. As the Council submitted, there is a logic to the Commissioner’s finding. The finding clearly was open on the evidence. I reject ground 16.

Ground 17: Denial of procedural fairness by not considering appellants’ submission on pedestrian safety

148. Ground 17 was that:

The Acting Commissioner denied the Applicants procedural fairness in his finding at [26] of the decision that the proposal would compromise pedestrian safety by failing to consider the Applicants’ submission and evidence of Mr Peter Brennan, the Applicants’ town planner, that the Respondent itself designs, and constructs numerous on street car spaces throughout its local government area which necessarily result in vehicles overhanging footpaths, and which do not raise or evidence pedestrian safety concern.

149. The Commissioner’s finding in [26] of the judgment was that:

The RDCP controls in CL3.6 requires consideration of the overall streetscape, continuity of footpaths and the need for safe pedestrian movement together with ensuring that pedestrian and cycling safety is maintained or improved. Based on Mr Higgins’ opinion on which I rely, I consider the pedestrian safety will be compromised rather than maintained or improved and this contributes to the proposal’s refusal.

150. The appellants noted that the reasoning of the Commissioner relied on an acceptance on the Council’s traffic engineer, Mr Higgins, over that of the appellant’s planner, Mr Brennan. The concern related to footpath overhang in relation to the alleged safety issues associated with the small car space.

151. The Commissioner had earlier summarised Mr Higgins’ evidence in [22]:

Considering the merits, I rely on Mr Higgins engineering evidence that there is a strong likelihood of the on-site parking encroaching onto the footpath area, which would reduce the road and footpath safety. I think this would be an undesirable outcome in this street where there appears to be significant competition for on-street parking and footpath use to access the school and most likely the future preschool. This is notwithstanding references to other traffic consultant’s information that was discussed.

152. The Commissioner later relied on Mr Higgins’ evidence in [32]:

In the subject context, with enabling school and future pre-school, I consider a cautious approach to parking is reasonable and therefore I am satisfied to rely on Mr Higgins’ engineering opinion which is consistent with car parking objectives to ensure that car parking doesn’t pose an undue safety risk to pedestrians.

153. The appellants submitted, however, that the Commissioner nowhere addressed the appellants’ submission based on Mr Brennan’s evidence in paragraph 30 of their written submissions handed up to the Commissioner, which stated:

As Mr Brennan notes, there are countless examples in the Randwick Council area of locations that have greater pedestrian movement than in Greville Street where there are smaller car spaces provided or car spaces involving rear overhangs of footpath areas.

154. The appellants submitted that the failure to address this submission was a denial of procedural fairness.

155. The Council responded that the Commissioner was not obliged to address this specific submission or the appellant’s planner’s evidence referred to in the submission. That specific argument was not itself one of the principal contested issues but only one of the arguments put by the appellants in favour of the principal contested issue of the potential effect on pedestrian safety caused by vehicles parking over the footpath. The Commissioner clearly addressed this principal contested issue. There was no denial of procedural fairness by not addressing the specific argument made in [30] of the appellants’ written submissions.

156. The Council submitted that the Commissioner, in determining the principal contested issue of pedestrian safety, preferred the evidence of the traffic engineer over the evidence of the planner. The Commissioner deliberately identified in [22], [26] and 32] of his judgment that Mr Higgins’ opinion was “engineering evidence”. The Commissioner based his decision on pedestrian safety issues on engineering evidence rather than planning evidence.

157. The Council noted that the Commissioner had raised at the hearing, before the experts gave concurrent evidence, the problem that the experts were from different disciplines, the appellants’ expert being a planner and the Council’s expert being a traffic engineer. The Commissioner asked that “if there’s a contest at the end of the day” and “submissions are made as to which expert’s opinion is to be relied on”, “could you assist me with how we distinguish … the weight to be given to the evidence?” The Commissioner noted that “the usual thing is that more weight would be given to the expert in the area”. The Commissioner concluded this discussion saying “you might just deal with that in final submissions”.

158. The experts then gave concurrent evidence. The Council’s solicitor cross-examined the appellant’s planner who conceded that he had no traffic engineering experience.

159. In closing submissions, the Council’s solicitor took up the Commissioner’s earlier invitation to address on the weight that should be given to the different experts’ competing evidence. She submitted in relation to Mr Higgins’ evidence, “we would suggest that that evidence should be given due weight that is accorded to a traffic engineer in a matter that relates to parking and traffic considerations”.

160. The appellants’ barrister, however, did not in his closing submissions assist the Commissioner with how to distinguish the weight to be given to the evidence of the experts who were from different disciplines. He handed up written submissions, which included the submission in [30] on Mr Brennan’s evidence of other examples of rear overhangs of footpath areas, but he did not orally address on that submission or that evidence of Mr Brennan.

161. The Council noted that those written submissions of the appellants had been prepared by a different barrister to the one who ran the case for the appellants at the hearing before the Commissioner and had been prepared in advance of the hearing before the evidence was given by the parties’ experts. The Commissioner noted that fact when the appellant’s barrister handed up the written submissions and said that “these submissions should be relevant to the evidence that I’ve got, so how do you want to deal with these? Do you want to say anything to them?” The appellant’s barrister replied “just a few additional comments, submissions”. However, the appellant’s barrister made no reference to Mr Brennan’s evidence or how the Commissioner should assign weight to the competing evidence of Mr Brennan and Mr Higgins.

162. The Council submitted that “notwithstanding the request for assistance and the submission from the Council, the Applicant remained mute on the issue”.

163. The Council submitted, therefore, that there was a conflict of evidence on the principal contested issue of the impact on pedestrian safety caused by vehicles parking over the footpath, which needed to be resolved by the Commissioner. The way in which the Commissioner resolved the issue was exactly the way that he had told the parties he was going to resolve it and that was that on that issue he preferred the expert evidence of the expert with the qualifications to deal with it, namely the traffic engineer. The Council submitted that it was legally adequate for the Commissioner simply to have identified, as he did in [22], [26] and [32] of his judgment, that when he’s dealing with a matter which has engineering issues, he prefers the evidence of the engineer.

164. I agree with the Council’s submissions. There was no denial of procedural fairness by the Commissioner not explicitly referring in his reasons for judgment to the submission made and the evidence of Mr Brennan referred to in [30] of the appellants’ written submissions. The Commissioner did address the principal contested issue of the impact on pedestrian safety of vehicles overhanging the footpath. He did not need to deal with the specific argument made by the appellants in their written submissions that had been prepared before the hearing, was not based on the evidence that was given at the hearing, and was not in response to the particular request for assistance by the Commissioner about the weight to be given to the competing evidence. The appellants had every opportunity to make whatever oral submissions they wished on Mr Brennan’s evidence and the argument in [30] of the appellants’ written submissions.

165. I reject ground 17.

Ground 18: Inadequate reasons on pedestrian safety risk

166. Ground 18 was that:

The Acting Commissioner erred in law by failing to give adequate reasons (whether at par [32] or elsewhere in the decision) for adopting as a correct analysis Mr Higgins’ expert opinion that there was a pedestrian safety risk posed by the proposal, and for rejecting Mr Brennan’s expert opinion that there was none, in that the Acting Commissioner expressed a preference for Mr Higgins’ opinion over Mr Brennan’s but did not subject the competing opinions on the existence or otherwise of any pedestrian safety risk to any rational analysis in the context of this issue as framed by the parties.

167. This ground related to the same findings in [22], [26] and [32] of the judgment that were challenged in ground 17. The appellants submitted that the Commissioner did not give reasons as to why he preferred the evidence of the Council’s engineer, Mr Higgins, over that of the appellants’ town planner, Mr Brennan, on the issue of pedestrian safety.

168. The appellants rejected the Council’s submissions, summarised above in relation to ground 17, that the reason the Commissioner preferred Mr Higgins’ evidence on pedestrian safety issues was that he was an engineer. The appellants submitted that the Commissioner did not expressly say this, or that Mr Higgins was the only qualified expert, being an engineer, to express an opinion on matters of pedestrian safety, or that Mr Brennan, as a planner, was not qualified to express an expert opinion on matters of pedestrian safety.

169. The appellants denied that the appellants’ barrister had remained mute on whether Mr Brennan should be preferred over Mr Higgins on pedestrian safety. The Council’s solicitor had not submitted to the Commissioner that Mr Brennan was not qualified to give evidence on pedestrian safety and hence there was no call for the appellants’ barrister to say anything about that matter. The Council’s solicitor also had not submitted to the Commissioner that Mr Brennan’s evidence on pedestrian safety should be disregarded. As a result, the Commissioner was left in the position where he was required to deal with the competing expert views. The Commissioner, however, did not do so in his reasons for judgment. The Commissioner failed to subject the competing expert evidence to rational analysis: Boral Cement Pty Ltd v SCHAGPty Ltd [2013] NSWLEC 203 at [63]. The appellants submitted, therefore, that the Commissioner’s reasons were inadequate.

170. The Council’s response was the same as it had made to ground 17, as summarised above. The Commissioner did identify in his reasons that the evidence he relied on to resolve the pedestrian safety issues was the “engineering evidence” of Mr Higgins: see [22], [26] and [32] of the judgment. The Council submitted that the Commissioner’s reasons were adequate to explain why he preferred the engineering evidence of Mr Higgins. The Commissioner did not need to go further and say that he rejected the planning evidence where it was in conflict with the engineering evidence on the parking and traffic engineering issues.

171. The Council submitted that the appellants’ submissions involved, in effect, a rehearing of the merits as distinct from consideration of a question of law which vitiates the decision, contrary to the admonition of the Court of Appeal in Hoy v Coffs Harbour City Council at [18].

167. I find that the appellants have not established that the Commissioner’s reasons on the issue of pedestrian safety caused by vehicles parking over the footpath are so inadequate as to involve an error of law. I adopt the Council’s submissions on ground 17 and this ground. The Commissioner explained that, when he was dealing with parking and traffic engineering issues, he preferred to rely on the engineering evidence of Mr Higgins. The Commissioner deliberately identified, albeit concisely, that he relied on the “engineering evidence” or “engineering opinion” of Mr Higgins in determining the issue of on-site parking encroaching on the footpath area and reducing road and footpath safety. It was not necessary for him to also say that he did not rely on the planning evidence of Mr Brennan who had conceded he had no traffic engineering expertise.

168. I reject ground 18.

Conclusion and orders

174. The appellants have not established any of the eighteen grounds of appeal. The appeal should be dismissed.

175. The usual order for costs in a s56A appeal from the decision of a commissioner is that they follow the event: see s98 of the Civil Procedure Act2005 and r 42.1 and sch 1 of the Uniform Civil Procedure Rules 2005. There are no circumstances in this case justifying departure from the usual order. Accordingly, the appellants should be ordered to pay the Council’s costs of the appeal.

176. The orders of the Court are:

1. The appeal is dismissed.

2. The appellants are to pay the respondent’s costs of the appeal.

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Decision last updated: 06 January 2017