Bennett Taylor Pty Limited v North Sydney Municipal Council

[1988] NSWLEC 24

Land and Environment Court

of New South Wales

CITATION:	Bennett Taylor Pty Limited v. North Sydney Municipal Council [1988] NSWLEC 24
PARTIES:	APPLICANT Bennett Taylor Pty Limited RESPONDENT North Sydney Municipal Council
FILE NUMBER(S):	10591 of 1987
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:	North Sydney Municipal Council v.Parlby (1986); North Shore Gas Co. v. North Sydney Municipal Council (1986); Haines v. Leves and Anor, (1987); Randwick Municipal Council v Manousaki (1986); Bushell and Anor v. Secretary of State for the Environment, [1980]; Wednesbury Corporation v. Ministry of Housing and Local Government [1966]; National Mutual Life Association of Australasia Ltd v. Godrich, (1909-10) ; Miller and Anor v. Gunnedah Municipal Council and Anor (1978) Barmuncol Pty Ltd v. Maroochy Shire Council (1983)
DATES OF HEARING:
DATE OF JUDGMENT:	10/05/1988
LEGAL REPRESENTATIVES:	APPLICANT RESPONDENT

JUDGMENT:

HIS HONOUR: The applicant, Bennett Taylor Pty Limited, appeals pursuant to s.56A of the Land and Environment Court Act ("the L.&E.CourtAct") against a decision of this Court comprising two Assessors, dismissing an appeal made under s.97 of the Environmental Planning and Assessment Act, 1979 ("the E.P.&A.Act") with respect to a rejection of a development application by North Sydney Municipal Council. The application was to erect an eight storey commercial office building, including a penthouse, at premises known as 28-30Ridge Street, North Sydney ("the land").

The land is situate within a Special Business3(B1) zone pursuant to Interim Development OrderNo.39 (North Sydney) in which the proposed development is permissible with consent, but a development standard provides that the floor space ratio shall not exceed 1.5:1 including therein a maximum of 1:1 for commercial or office space. No provision is made for a limitation in height. The ratio of the total floor space of the subject building to the area of the land is 4.43:1 if balconies are included, or 3.86:1 if excluded. The proposed development could not therefore be carried out on the land in contravention of such development standard, and the applicant made written objection pursuant to the provisions of State Environmental Plan PolicyNo.1 ("SEPP1") that compliance with that development standard is unreasonable and unnecessary in the circumstances of the case.

The land is in a locality at the extreme edge, if not outside, the business area of North Sydney. It is north of an area of land owned by Council which at one time was proposed to be developed as a major commercial and office space precinct. Erected on land immediately adjoining to the west is a ten storey, 30year old office building but, to the east, buildings are small and generally of two storeys.

The proposed building in vertical profile tapers on three sides and its design was said to be an attempt to provide a transition between the ten storey building and the said smaller buildings to the east.

Council disallowed such objection and refused development consent for the following reasons:|CF2.|PSI

"1. The proposed development is contrary to Clause12 of Interim Development Order No.60.

2. The proposed development is considered to be excessive in bulk, shape, size, height, scale and mass and therefore is considered to be inappropriate for the locality.

3. The proposal is contrary to the provisions of the Certified Draft Local Environmental Plan and the North Sydney Plan, 1986.

4. The proposed development is considered to create a significant and undesirable level of traffic in the local area and congestion for local on-street carparking.

5. The proposed development is inappropriately located in regard to its size, remoteness from the North Sydney Business District and its relationship to public transport facilities.

6. The applicant's submission of an SEPPNo.1 objection is not considered to have provided justification for Council to waive its development standards particularly Clause12 of IDONo.60."|CF1.|PSO

The proposed departure from the relevant development standard is most substantial and, for the purpose of the determination of an objection pursuant to SEPP1 that compliance therewith is unreasonable or unnecessary, it must be assumed that the development standard when made had a purpose. The applicant properly accepted the onus to satisfy the Court as to what was the underlying object or purpose of the development standard, and also that the objection thereto was well founded; North Sydney Municipal Council v. Parlby, SteinJ., 13th November, 1986 (unreported). It is now conceded by the appellant that it was open to the Assessors to conclude on the evidence, as they did, that in addition to that found in other determinations one such object was to keep development in the vicinity of the land |CF2.|PSI"generally low in profile and domestic in character"|CF1.|PSO. However, the appellant still submitted that the Court was compelled to find that compliance therewith was unreasonable and unnecessary for the reason

that the Court had previously held that the standard |CF2.|PSI"had been virtually abandoned or destroyed by Council"|CF1.|PSO; see North Shore Gas Co. v. North Sydney Municipal Council, SteinJ., 15th September, 1986 (unreported). Asubstantial body of evidence was received by the Assessors which established that Council had adopted and applied to some sites in the Municipality a policy of transferring so-called "Council's unused notional floor space" to the development potential of such sites. In at least nine instances Council apparently agreed to sell or transfer such notional floor space from Council owned land to permit development on other sites in excess of the development standard. In order to approve such development in each case Council apparently either procured an amendment to the environmental planning instrument or allowed an objection pursuant to SEPP1 to compliance with such standard.

An appeal to this Court pursuant to s.56A from a decision of an Assessor is confined to questions of law. It is not for a Judge to substitute his views on the interpretation of the facts. Unfortunately, it was difficult in this matter to discern the questions of law and the appellant did not adhere to the grounds specified in the Notice of Appeal; i.e.:|CF2.|PSI

"1. That the learned Assessors erred in failing to allow the Applicant's objection under State Environmental Planning Policy No.1 as a matter of law.

2. That the Court erred in holding that the Council's practice of selling transferred floor space was not a relevant issue in the context of the appeal.

3. That the Court erred in holding that the Council had generally maintained floor space ratios of 1.5:1 in the context of Ridge Street.

4. That the Court erred in holding that the office building developed on the Civic Centre site should not be characterised as part of the streetscape of Ridge Street.

5. That the Council erred in holding that the floor space ratio controls contained in the relevant Interim Development Order remain of significance in the context of the subject land and have not been undermined by Council's activities in regard to transferred floor space.

6. That the Court erred in ruling that only limited matters concerning Council's practice of selling transferred floor space were to be allowed into evidence.

7. That the Court's proper consideration of the relevant heads of consideration under s.90 of the Environmental Planning and Assessment Act, 1979 was fettered by its finding that the Applicant's objection under SEPPNo.1 was not well founded."|CF1.|PSO

Not surprisingly, the applicant abandoned most of such grounds as they clearly raise only questions of fact, but, as I understand the applicant's submissions, the alleged errors of law are-

1. The Court erred, as a matter of law, in refusing to follow the finding of SteinJ. in the matter of North Shore Gas Co. v. North Sydney Municipal Council that the development standard had been virtually abandoned or destroyed; and

2. Relevant evidence was wrongly rejected; and

3. There was no evidence to justify the finding that the development standard had not been abandoned or destroyed in the subject locality; and

4. The Court was diverted from a proper consideration of the merits of the development by its determination of the grounds of the objection.

The applicant expressly denied any challenge to the Assessors' determination on the ground of manifest unreasonableness.

The first alleged error of law needs only to be stated to be rejected. In my opinion, the said finding of SteinJ. as to the virtual abandonment or destruction of the development standard is clearly one of fact based upon the evidence called in that matter. The applicant maintains the allegation, notwithstanding that it concedes that the Assessors were not bound by findings of fact in that decision, and it does not attempt to rely upon principles of issue estoppel or res judicata. I suspect that the applicant in effect was submitting that if a Judge came to that conclusion on similar facts with respect to the same or similar development standard, a contrary decision by the Assessors would be likely to be perverse or against the weight of evidence. However, in this appeal Icannot correct errors of fact made by the Assessors. Iam not entitled to review even a finding of fact which is said to be perverse or contrary to the overwhelming weight of evidence; cf. Haines v. Leves and Anor, (1987) 8N.S.W.L.R. 442 at 46

9; Randwick Municipal Council v Manousaki, Court of Appeal No.402 of 1986, 26thSeptember, 1988 (unreported). In any event, that matter was between different parties, different development in a different locality, and a different level of the development standard. Further, the dispensing power vested by SEPP1 can relate only to a particular development application and to the particular circumstances of the case. Whilst, to the extent it was relevant, that decision could be persuasive, in my opinion the Assessors in this matter had no obligation at law to follow it.

The applicant was not able to identify clearly the precise ruling of the Assessors which is said to give rise to the second alleged error of law. An examination of the transcript revealed that considerable debate took place between the Assessors and Counsel, and the ruling and its reasons must be deduced therefrom. The alleged error arose in this way: aprincipal ground of the applicant's objection pursuant to SEPP1 was the proximity to the subject land of the Council from which floor space was purportedly transferred. The applicant submitted to the Assessors, in effect, that the application of the policy resulted in the under-development of the Council site, and that justified development of the subject site in excess of the development standard. Objection was taken and upheld as to the relevance of evidence concerning the nature of development on a site in Walker Street which was remote from the subject property, and to which there had been a transfer of floor space from the Council land. Debate also ensued

as to the likelihood of the Council site being fully developed notwithstanding the implementation of the policy to transfer its development potential. When the matter was first raised, the Assessors indicated that they were not interested in the actual methodology of such transfer, but more in the consequences thereof.

The following exchange took place:|CF2.|PSI

"Assessor Nott: Ithink, MrRigg, there are two questions. If it's been a watering down of the standard by already built form that is one matter, and it's a matter then of presenting the evidence and showing the built form. How it occurred, though, is another matter and if it's occurring by what is seen to be unlawful means the Court cannot be asked to carry on and continue or countenance the continuance of that method of dealing with it.

MrRigg: This was the way that the decision was decided and what was held in the North Shore Gas Company case.

Assessor Nott: But didn't His Honour there point out - wasn't it pointed out to His Honour various buildings which didn't comply with the standard?

MrRigg: That's correct.

Assessor Nott: You're entitled to do the same thing in this case."|CF1.|PSO

The Assessors reconsidered their position overnight, and invited further evidence on the matter. The Senior Assessor said:|CF2.|PSI

"I'll have to talk a bit to try and establish what it is that we think might be important, and that is that in terms of what we understand that Council has done, which is to establish a total amount of floor space in the Municipality which should be considered as effectively a constant in relation to demand for office space. There have been arrangements whereby that space has been transferred around the Municipality. Now we are less interested in the process than we are in the end result, which is that there may have been some impact on that basic concept of maintaining a total pool of floor space at a constant level, and that that may have been undermined, and of course if that is the case then it has some implication in terms of irrelevance or applicability of floor space ratio in any particular locality."|CF1.|PSO

A reason given by the Assessors for limitation of cross examination was that:|CF2.|PSI

"...if we allow you to pick your way through every one of the transactions that you're aware of, in the end it may not lead to this global appreciation of what the Council has been doing or any effect on the total FSR."|CF1.|PSO

However, Senior Assessor Jensen said in his reasons for judgment with respect to Council's practice by which the development standard was relaxed:|CF2.|PSI

"... I am not convinced, in the ultimate, that it is a relevant issue in the context of this particular development."|CF1.|PSO

This statement was made in the context of findings of fact that the development standard had been generally maintained in the subject locality.

The procedures to be adopted and the discretion to limit the admission of evidence must be decided by an examination of the legislation and the nature and scope of the hearing before the Assessors. Where the legislation does not constitute a complete procedural code, the common law should then be applied.

In proceedings in Classes1, 2 and 3 of the Court's jurisdiction, Assessors may receive evidence in addition to or in substitution for evidence given to Council on the making of the decision under appeal. The Court is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits (s.38(2)). Such proceedings shall be conducted with as little formality and technicality and with such expedition as the requirements of the L.&E.CourtAct and of every other relevant enactment as to the proper consideration of the matters before the Court permit (s.38(1)). However, whilst the Assessors are not bound by the rules of evidence, and constitute an expert specialist tribunal, they of course cannot act without any evidence or act in disregard of the evidence.

In many cases in Classes1, 2 and 3 it may be inappropriate to apply strictly procedures more pertinent to ordinary civil litigation between private parties; R v. The Australian Broadcasting Tribunal, ex parte Hardiman, (1980) 144 C.L.R. 13; Bushell and Anor v. Secretary of State for the Environment, [1980] 2 AllE.R. 609.

In order to determine the appropriate procedures Iam most conscious of the dangers of reliance upon authorities relating to administrative decisions, owing to the distinction between the scope and function of an advisory panel which is merely a step in administrative procedures, and that of this Court which makes final decisions affecting the rights of parties appearing before it. Inote, however, that whilst an advisory panel has an obligation to act fairly, it still maintains a discretion to exclude irrelevant or repetitious evidence; see LordDiplock, Wednesbury Corporation v. Ministry of Housing and Local Government (No.2), [1966] 2 QB 275, at 302-303:

"...that the person appointed to hold the inquiry should listen not merely to representations by the objector but also to representations by other persons who have an interest in the subject matter of the objections whether in support of the objections or against them. He must permit persons making such representations a reasonable opportunity of adducing relevant material in support of their representations and, if such material includes oral statements of witnesses of fact or of opinion, I am inclined to think that he must permit a reasonable opportunity of cross- examination of such witnesses by persons appearing at the inquiry who wish to dispute what the witnesses have said. This does not mean that the person appointed to conduct the inquiry has not a wide discretion to exclude irrelevancies and to curb repetition, to control the procedure and to decide how material probative of relevant fact or opinion shall be adduced."|CF1.|PSO

The Town and Country Appeals Tribunal (Victoria) is a body having powers and procedures similar to those which apply to a hearing by an Assessor in Classes1, 2 and 3 of this Court. It also is not bound by the rules of evidence and may inform itself on any matter it thinks fit. Nevertheless, it has been held to have a similar obligation to observe the requirements of natural justice, and may not act without evidentiary material or draw inferences which do not follow fairly and reasonably from the material before it; Wajnberg and Anor v. Raynor and Melbourne and Metropolitan Board of Works, (1970) 22L.G.R.A. 130.

Notwithstanding the discretions vested in this Court by s.38 for the discharge of its duties, the Assessors had a duty to ensure that each party was given a fair opportunity to put its own case and to correct or contradict any relevant statement prejudicial to its view. However, whilst acting fairly in accordance with the rules of natural justice, in my opinion the Assessors in appropriate circumstances in such hearings also may determine if limits should apply to unhelpful cross examination or the repetitious admission of evidence of little probative value. I respectfully adopt and apply what was said by CrippsC.J. in Pain v. Bega Valley Shire Council, 26thJune, 1987 (unreported):|CF2.|PSI

"...the Court is always entitled to consider the public interest requirement that the Court's lists must be conducted with expedition and without undue expense."|CF1.|PSO

It is clear in this matter that the procedures adopted by the Assessors were in line with a judicial hearing, and therefore even more than those envisaged by the obligation merely to act fairly to the parties. Iam satisfied that the applicant was afforded ample opportunity to call sufficient relevant evidence to establish the nature and effect of Council's practices and future intentions with respect to the development potential and the transfer of floor space from the Civic Centre site. In my opinion, the limitation on the admission of evidence in that regard by the Assessors was not unfair to the applicant. The evidentiary value of any further examination of the particularities of sites in other localities to which such a transfer had been made was, in my judgment, clearly so low as to be of little assistance, if any, to the Court. If admitted, it would have been repetitious, the hearing would have been unduly extended and delayed, and unnecessary expense would have been incurred by both parties.

In any event, the improper rejection of evidence does not in all cases compel the setting aside of the decision. Unless such rejection leads to a substantial wrong or a miscarriage of justice, or is vital or fundamental to the basis of the decision in question, it will not vitiate the ultimate decision; c.f.National Mutual Life Association of Australasia Ltd v. Godrich, (1909-10) 10C.L.R.1, Miller and Anor v. Gunnedah Municipal Council and Anor (1978) 35 L.G.R.A. 378 at 383; Barmuncol Pty Ltd v. Maroochy Shire Council (1983) 50 L.G.R.A. 309 at 313-314. It is apparent that both Assessors were satisfied that the evidence sought to be called could not establish that Council had abandoned or jeopardised the application of the standard in the immediate locality of the land. However, in the ultimate, the question is academic because the Assessors found after a consideration of its merits that the development was unacceptable. In my judgment, the ruling was not fundamental to the ultimate decision of the Assessors,

or a question upon which it depended.

Each Assessor gave separate reasons for judgment that the objection was not well founded and that the appeal should be dismissed. It is submitted by the applicant in the third question that each erred in law for the reason that there was no evidence to justify their finding that the relevant development standard had not been abandoned or destroyed in the subject locality.

It is, of course, a question of law whether there is evidence for a particular finding of fact; Haines v. Leves (supra) at p.470. On the other hand, if there is evidence, weight given to it by the Assessors as sufficient to establish the fact, is a question of fact and not of law; Randwick Municipal Council v. Manousaki (supra). If there was evidence and different conclusions were reasonably open, the Assessors were entitled to be satisfied that the applicant had not discharged its onus, and there is no law which compels them to find the fact in the applicant's favour. A question of fact cannot be turned into a question of law by inverting it. Senior Assessor Jensen found as a fact that no building in the general vicinity of the subject development had transferred floor space attached to it, and that |CF2.|PSI"Council had generally maintained floor space ratios of 1.5:1 in the context of Ridge Street"|CF1.|PSO. He concluded |CF2.|PSI"that the floor space ratio controls, as contained in the relevant Interim De

velopment Order, remain of significance in the context of the subject land; have not been undermined by Council's activities in regard to transferred floor space and finally reflect the general character of development in the vicinity.|CF1.|PSO"

Assessor Nott rejected the applicant's submission that the Court in this matter was bound to follow as a matter of law the decision of SteinJ. because such decision was one of fact; North Shore Gas Co. v. North Sydney Municipal Council (supra). In any event, he was satisfied that this matter may be distinguished from that decision on the facts. Notwithstanding his doubts (which Ishare) as to the legitimacy and therefore the relevance of Council's practice of transfer of so called "unused notional floor space" from the Civic Centre site, he gave consideration to the applicant's submission that such practice gave rise to the virtual abandonment of the standard when making his determination of the objection pursuant to SEPP1. However, he found that |CF2.|PSI"no transfers have taken place from the Council's site or from any privately-owned land to any site within the immediate locality of the subject land; and I am not satisfied that the Council has generally abandoned or jeopardised the present or future applica

tion of the floor space ratio development standard in this locality (this is not to say that the Council will never vary the standard in this locality by the use of SEPP1 because clearly there may be a case where it will be appropriate to do so)."|CF1.|PSO

A ground of appeal that there was no evidence of a fact is often an attempt to mask the burden of proof and convert an unappealable question of fact into an appealable question of law by inverting the onus of proof; cf. Azzopardi v. Tasman UEB Industries Ltd, (1985) 4N.S.W.L.R., 139 at 155, 175. In my opinion, this is such a case.

In my judgment, there was ample evidence before the Assessors of the nature and scale of the existing development in the locality, and whether the development standard had been relaxed or varied with respect to development on land relevant to the subject property. Such evidence included, inter alia, Council records, studies, expert reports, photographs and the benefit of a view. That view led to a further hearing and the receipt of further evidence. In my judgment, on such evidence it was open to them to find that compliance with the relevant development standard with respect to the subject application was not unreasonable or unnecessary because it had not been abandoned or destroyed, and that the conduct of Council had not jeopardised the present or future application of such standard in the subject locality. I can discern no error of law on this ground.

I find the fourth alleged error of law as a ground of appeal most surprising. The merits of the proposed development were a significant if not the principal ground of the applicant's objection, and were in the vanguard of the applicant's case put to the Assessors.

Both Assessors, clearly bearing in mind the underlying purpose or object of the standard, took into account matters specified in s.90 of the E.P.&A.Act which they regarded as relevant to its purpose or object when making the determination of the objection. It is well settled in this Court that it is inappropriate to attempt to define exhaustively the limits of its power under SEPP1 to determine that compliance with a development standard is unnecessary in the circumstances of a case. The breadth of the words "circumstances of the case" has been examined by SteinJ. in North Sydney Municipal Council v. Parlby, No.10617 of 1985, 13th November, 1986 (unreported), and in which he held that as a circumstance of the case the Court may take into account such considerations under s.90 as are relevant to that purpose or object. Irespectfully agree with and adopt such reasoning.

AssessorNott, in his reasons for judgment, found |CF2.|PSI"that the proposed building is, on balance, unsatisfactory in light of the relevant heads of consideration in s.90(1)(e), (f) and (h) of the E.P.&A.Act"|CF1.|PSO. In his opinion, the development would be out of keeping with the predominantly two or three storey appearance of the buildings fronting the street. Assessor Jensen stated that an examination of the objection cannot be isolated from a consideration of the proposed development in terms of s.90, and |CF2.|PSI"that what the architect proposes will not in the end achieve the suggested objective of disguising or camouflaging the bulk of the N.R.M.A. building. It seems clear to me that this building is so large and so different to other buildings in the street, that providing it with an abutment will merely serve to emphasize the disharmony.|CF1.|PSO"

In my judgment, the Assessors in this case were entitled to take into account all matters which they did in the determination of the objection. As observed by SteinJ. (Parlby, supra), |CF2.|PSI"that these same 'merit' considerations will arise for consideration again later in the case (if the objection is upheld) is beside the point"|CF1.|PSO. I am satisfied that each Assessor properly and adequately considered the merits of the development in the determination of the objection.

The appellant can point to nothing in the transcript, nor the reasons for judgment, which persuades me that the Assessors did not give full and proper consideration to all matters specified in s.90 which were relevant to the development. The findings and interpretation of the facts are matters reserved to the Assessors; Randwick Municipal Council v. Manousaki, supra. Ican discern no error of law.

The orders of the Court are:

1. Appeal dismissed.

2. Development consent refused.

3. Exhibits may be released.

4. Appellant to pay the respondent's costs.