Carr v Lane Cove Council [No 2]
[2007] NSWLEC 603
•21 September 2007
Reported Decision: (2007) 156 LGERA 235
Land and Environment Court
of New South Wales
CITATION: Carr and Anor v Lane Cove Council [No 2] [2007] NSWLEC 603 PARTIES: APPLICANTS
Leon & Jennifer CarrRESPONDENT
Lane Cove CouncilFILE NUMBER(S): 10770 of 2006 CORAM: Jagot J KEY ISSUES: Question of Law :- appeal - whether Commissioner misconstrued development control plan - whether development control plan generally conformed to provisions of local environmental plan - Commissioner's decision set aside LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Land and Environment Court Act 1979CASES CITED: 7-Eleven Stores Pty Ltd v Sydney City Council (2004) 138 LGERA 125;
Adams (Deputy Federal Commissioner of Taxation (Victoria)) v Chas S. Watson Pty Ltd (1938) 60 CLR 545;
Archibald v Byron Shire Council (2003) 129 LGERA 311;
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367;
Cacalot Pty Ltd v Sydney City Council (1996) 90 LGRA 424;
Carr, L and J v Lane Cove Council [2007] NSWLEC 196;
Coles v Woollahra Municipal Council (1986) 59 LGRA 133;
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280;
Dovuro Pty Ltd v Wilkins and Others (2003) 201 ALR 139;
Duggan v Woollahra Municipal Council [1991] Land & Environment Court No 10539 of 1991 (Unreported, Stein J, 30 August 1991);
Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275;
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409;
Martin & Spork Pty Ltd v South Sydney City Council (1999) 103 LGERA 213;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259;
North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23;
Paull v Munday (1976) 50 ALJR 551;
Randwick City Council v Manousaki (1988) 66 LGRA 330;
Randwick Municipal Council v Crawley adn Others (1986) 60 LGRA 277;
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418;
Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361;
Thomas Plunkett v William Smith (1911) 14 CLR 76DATES OF HEARING: 17/9/07
DATE OF JUDGMENT:
21 September 2007LEGAL REPRESENTATIVES: APPLICANT
Mr T F Robertson SC with Mr I J Hemmings
SOLICITORS
NRG LegalRESPONDENT
Ms S Duggan
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
21 September 2007
10770 of 2006
LEON & JENNIFER CARR
ApplicantsJUDGMENTLANE COVE COUNCIL
Respondent
Jagot J:
A. Introduction
1 On 13 April 2007 a Commissioner of the Court dismissed an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) and refused consent to a development application for alterations and additions to an existing dwelling house and an associated subdivision (Carr, L and J v Lane Cove Council [2007] NSWLEC 196). The existing dwelling house is located on 24E Upper Cliff Road, Northwood. The alterations and additions were mainly to take place on the undeveloped portion of the adjoining land at 26 Upper Cliff Road, Northwood. The subdivision proposed the transfer of part of 26 Upper Cliff Road to 24E Upper Cliff Road to facilitate the alterations and additions.
2 Under s 56A of the Land and Environment Court Act 1979 (the LEC Act) a party may appeal against the Commissioner’s decision on a question of law. The applicants exercised this right of appeal. Although the applicants originally identified one ground of appeal in the statement of grounds required by Pt 13 r 37 of the Land and Environment Court Rules 1996, the grounds expanded to five in total by the conclusion of the hearing of the appeal as follows:
1 The Commissioner erred in misconstruing DCP 1 by failing to determine whether the bushland area contained “bushland” as defined, that is, that there was vegetation which was either a remainder of the natural vegetation of the land or if altered was still representative of the structure and floristics of the natural vegetation and which contained natural landforms and topographic features.
2 The Commissioner erred in law by failing to take into account the evidence of Dr Ambrose that the land was not bushland as defined in the DCP in the context of resolving the issue whether the land was part of the bushland area in the DCP.
3 The Commissioner erred in misconstruing the DCP by equating the bushland area with environmental protection area (“EP Area”) under cl. 11 of the Lane Cove LEP.
5 The Commissioner erred in law in determining that the proposal was contrary to SEPP 19 and LEP cl. 11 without considering the evidence of Dr Ambrose or the methods stipulated by the Bushland Rehabilitation and Maintenance Plan (part of Ex. C) for protecting the Gore Creek Reserve and other downslope bushland from the impacts of development (in particular cls. 3.2.1, 3.2.2, 3.2.3, 4.4.1, 4.4.2, 4.4.3 and 4.5).4 In the alternative, if the DCP does equate the bushland area with the EP area, and if on its proper construction it precludes buildings and other development (except drains) in the bushland area, the Commissioner erred in law by applying it because it is invalid as it does not generally conform with c. 11 of the Lane Cove LEP.
3 The Council objected to the applicants relying on grounds 2 to 5. However, it is clear that grounds 1 to 3 involved a clarification of the former single ground. Ground 5 was an additional ground but, in large part, responsive to the Council’s argument about the Commissioner’s reasoning process. Accordingly, there is no basis upon which the applicants may properly be prevented from raising these grounds on appeal. Ground 4, as the applicants conceded, was a fresh ground in that the proceedings were conducted before the Commissioner on the common assumption that the relevant development control plan (Development Control Plan No 1 – Control of Development Adjacent to Bushland) (the DCP) was valid and in force.
4 The applicants submitted that they should be permitted to raise this fresh ground. The ground involved a question of law. No evidence other than the Lane Cove Local Environmental Plan 1987 (the LEP) and the DCP was required to resolve the issue. The ground was responsive to the Council’s argument about the proper construction of the DCP. The applicants were not precluded from raising the issue by reason of their failure to take the point below (Adams (Deputy Federal Commissioner of Taxation (Victoria)) v Chas S. Watson Pty Ltd (1938) 60 CLR 545, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at 367).
5 The Council submitted that the applicants should not be permitted to raise this ground. The single ground originally relied on in the appeal was the same as that put to the Commissioner. The hearing before the Commissioner involved an implicit concession by the applicants that the DCP was valid and in force. If the applicants had sought to make this argument before the Commissioner he could not have determined it because it involved a legal issue. Appeals under s 56A are limited to an error of law by a Commissioner. The Commissioner could not have made an error of law about a matter never put to him. The ground was first raised in the applicants’ submissions. These were due on 13 August, but received only four days before the hearing. The Council accepted, however, that the issue was one of law about which no evidence (other than the LEP and DCP) was required and any prejudice to the Council could be addressed by costs. The applicants agreed that costs should be reserved.
6 In Dovuro Pty Ltd v Wilkins& Others (2003) 201 ALR 139 at [151], Hayne and Callinan JJ at [151] observed:
In deciding whether a party may take a point for the first time on appeal, the principles to be applied are well known. Those principles have been discussed, in this court, in several cases. As was said in Coulton v Holcombe [(1986) 162 CLR 1 at 7; 65 ALR 656 at 660.], “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”. But the rule against raising a new point for the first time on appeal is not absolute. As Mason J said in O'Brien v Komesaroff [(1982) 150 CLR 310 at 319; 41 ALR 255 at 260.], “[i]n some cases when a question of law is raised for the first time in an ultimate court of appeal … it is expedient in the interests of justice that the question should be argued and decided”.
7 I consider that it is expedient in the interests of justice that the applicants be permitted to raise this new ground on appeal. The question whether the DCP satisfied the requirements in s 72(3) of the EPA Act (“…a development control plan shall generally conform to the provisions of the local environmental plan or the draft local environmental plan which applies to the land to which the development control plan applies”) is a question of law. The efficacy of the DCP having regard to s 72(3) of the EPA Act is of continuing general importance. Although s 72(3) was repealed by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005, the savings provision in cl 94 of Sch 6 to the EPA Act only operates if the DCP was in force. The DCP was central to the Commissioner’s reasons for dismissing the appeal. Appeals under s 56A are not limited to errors of law by Commissioners in the subjective sense advocated by the Council. Appeals may be brought on a question of law. Commissioners may refer questions of law under s 36(5) of the LEC Act, but are not precluded by the Act from determining questions of law and routinely do so. The Council’s prejudice (if any) could be rectified by a costs order.
B. The LEP, the DCP and the evidence
8 All of the applicants’ claims on appeal are derived from the interaction between the LEP and DCP. The development application related to land zoned 2(a1) Residential. This land was also affected by a designation under cl 11 of the LEP. Clause 11 is in the following terms:
(1) This clause applies to any land which is designated “environmental protection” and marked with black cross hatching on the map.
(2) A person shall not carry out development on land to which this clause applies without the consent of the council.
(3) The council shall not consent to the carrying out of development on or with respect to land to which this clause applies where, in the opinion of the council, the vegetation, topography or distinctive features of that land are likely to be adversely affected thereby.
(4) In this clause development , in relation to land, includes:
(a) the erection of any structure on the land,
(b) the erection of a fence on the land,
(c) the removal of soil or rock from the land,
(d) the deposit of soil, rock or any other matter on the land, and
(e) the destruction or removal of any tree or other vegetation on the land.
9 The environmental protection area affects about half of the existing dwelling on 24E Upper Cliff Road and part of the rear yard area of 26 Upper Cliff Road. Under the existing subdivision pattern 24E Upper Cliff Road is the southern most lot of a series of battleaxe style lots. As such, the main part of 24E Upper Cliff Road is situated further to the east than the dwellings to its south, commencing with 26 Upper Cliff Road. 24E Upper Cliff Road is also the northern most lot at which the environmental protection area under cl 11 commences.
10 The DCP applies to the land by operation of cl 4. Clause 2 specifies the DCP’s aims and objectives as follows:
* To protect both public and private bushland from adjacent development which could result in altered moisture conditions, increased nutrient levels, soil movement and invasive or inappropriate plant species.
* To retain and protect natural topographic features, remnant bushland areas, plant species and communities and native fauna habitat which once prevailed in this locality.
* To maintain and regenerate areas of natural bushland which define the essential character of Lane Cove.
* To acknowledge the importance of bushland to the character and value of the locality and its importance to the region.
* To provide a set of development standards that encourage innovation and attractive design which acknowledges the importance of bushland areas through the control of building form, position, colours and materials, hard surface areas, stormwater disposal, soil erosion control, and landscape material adjacent to bushland.
11 Clause 5 of the DCP, relating to the application of its controls, says that:
Where an applicant proposes to satisfy Council’s DCP No. 1 other than by complying with this plan, a justification must be given. Approval will not be given unless it can be demonstrated that the objectives of this plan can be fulfilled.
Where part of the development site is designated as Environmental Protection, Clause 11 of Council’s LEP must be taken into consideration.…
12 Clause 6 of the DCP contains definitions including the following:
Bushland – Means that part of the land (private or public) on which there is vegetation which is either a remainder of the natural vegetation of the land or if altered is still representative of the structure and floristics of the natural vegetation and which contains natural landforms and topographic features, e.g. sandstone outcrops.
Buffer – Means that part of the development site which is a transition between the bushland and the building/s except where formed roads adjoin bushland.
Regeneration – Means the restoration of suitable conditions for ongoing long-term natural regeneration of the local indigenous plant community.Development site – Means the parcel of land whether in private or public ownership upon which any development and associated works are proposed to take place.
13 Clause 7, headed “Areas”, is critical and provides that:
The owner, or an agent acting on the owner’s behalf, may, however, request Council to provide a general indication of the bushland/buffer/building areas on their land. Applicants are encouraged to consult with Council’s Bushland Manager prior to submitting an application.Each site will be divided into three areas – building area, buffer area and bushland area. The extent of each area will be established by Council at the time of assessment of any application lodged, following a more detailed site inspection.
14 Clause 8 then deals with development within these areas as follows:
Bushland Area :
This is the part of the development site adjoining bushland which contains remnant bushland vegetation and other natural topographic features. It is an extension of the areas of bushland zoned or reserved for public open space purposes and should exhibit the same characteristics as that for the land zoned “Bushland” under the Lane Cove LEP. It may be land which is currently degraded but forms a continuous link with bushland on neighbouring properties. Development of this land is limited to that permitted under Clause 11 of the LEP. The Environmental Protection Area in the LEP is part of this area.
Buffer Area :
This is the part of the development site which is between the bushland and building areas. Its purpose is to provide a transition between the bushland and the building area to protect the bushland and allow for compatible use. Buildings are not permitted within this area. This can be used for ancillary works, such as outdoor living areas, stormwater detention/absorption pits, runoff controls, indigenous plantings including vegetation planted adjacent to stormwater detention/absorption pits, services, pathways, filling, temporary storage of materials, bushfire fuel breaks.
Paving is not to exceed 25% of this area.
The size of the area may vary depending on the site but a minimum depth of 10 metres should be taken as a guide. Where there is insufficient space for a buffer due to the orientation, size or location of the development site, then the applicant must show how the adjacent bushland can be adequately protected according to the aims and objectives of this Plan.
This is the part of the development site where buildings are permitted. Buildings, including swimming pools and outbuildings, are permitted within this area up to the common boundary with the buffer area. Paving should be minimised within this area. Significant trees should be retained and should be protected during construction to Council’s satisfaction.Building Area :
15 Clause 9 concerns the location of development so as to maximise the retention of various site features and requires applications to “consider alternate building sites” and says “justification must be given for selecting the preferred site”.
16 Clause 10 requires a landscape plan to be prepared. Under the heading “Building and Buffer Areas” this clause says that retention of bushland elements in buffer areas is encouraged. Under the heading “Bushland Area” the clause requires submission of a bushland rehabilitation and maintenance plan prepared by a suitably qualified and experienced environmental consultant.
17 Clause 11, dealing with stormwater, provides that:
Council will not permit the construction of a discharge pipe through the bushland except where there is no alternative.The discharging of stormwater collected from roofs, driveways and other impervious paved areas directly into bushland without the use of an approved dispersal system will not be permitted under any circumstance.
18 Clause 12 requires all applications to include a sediment control plan and says that:
All soil erosion, sedimentation and drainage controls must be wholly situated within the development site but excluding the bushland area.
19 Clause 13, headed “Protection of Bushland”, says:
Clearing of natural vegetation on the site is to be restricted to the immediate construction area.
The stockpiling of building materials, overburden or any other material and the dumping of refuse onto the bushland area within the development site or adjacent bushland reserve are strictly prohibited.
The developer is to be responsible for the construction of a protective fence between the buffer area and the bushland area which is to be maintained during the construction phase.Access to the site through the bushland area within the development site or adjacent bushland reserve by construction vehicles or any other machinery is strictly prohibited.
20 Clause 15, relating to building design and visual impacts, requires swimming pools to be located within the building area.
21 Insofar as relevant to the issues in the appeal Mr Armstrong, town planner, and Mr Matheson, bushland manager, gave evidence for the Council. Mr Smith, town planner, Mr Ford, arborist, and Dr Ambrose, ecologist, gave evidence for the applicants.
22 In their joint report the planners, Mr Armstrong and Mr Smith, set out their competing opinions about cl 11 of the LEP and the DCP. Mr Armstrong considered that cl 11 meant that the land within the environmental protection area should remain in its natural state and areas adjoining bushland should be managed and developed only as envisaged by the DCP. In concurrent evidence, Mr Armstrong confirmed his view that the whole of the environmental protection area under cl 11 of the LEP was bushland area as identified in the DCP by reason of cl 8 of the DCP. This was so irrespective of the presence or not of “bushland” as defined by cl 6 of the DCP within that area. Accordingly, the buffer area identified by the DCP was 10 metres upslope from the environmental protection area. Mr Smith considered that if, by cl 8 of the DCP, the environmental protection area was bushland by definition, then it followed that this area could be developed subject to the criteria in cl 11 of the LEP being met. Mr Armstrong and Mr Smith marked up a plan representing their competing views about the location of the bushland area and buffer area. From this plan it is apparent that the whole of the existing dwelling and proposed additions are within the environmental protection area or Mr Armstrong’s buffer area. Mr Smith’s buffer area commences slightly east of the existing and proposed improvements.
23 Dr Ambrose prepared a report and a bushland rehabilitation and maintenance plan. In his report, Dr Ambrose concluded that the area proposed to be developed and to its south east was not bushland as defined in the DCP because it was not representative of the structure and floristics of the natural vegetation. However, the area to the east of the walking track was bushland as defined and would be adequately protected by the bushland rehabilitation and maintenance plan. The plan set out detailed proposals to ensure the sustainability of native vegetation and fauna habitats on the site.
24 After the requirements of the Rural Fire Service had been received, Dr Ambrose, Mr Ford and Mr Matheson conferred and prepared a joint report. The Rural Fire Service required the whole site to be managed as an inner protection area as defined in Planning for Bushfire Protection 2001. According to Mr Swain, a bushfire consultant, this would necessitate removal of weeds and exotic trees, and perhaps some trimming of the large Angophora trees close to the buildings, but would allow for planting of some native species in landscaped clumps.
25 In their joint report, Mr Matheson said that the environmental protection area under cl 11 of the LEP defined the extent of the bushland. Dr Ambrose considered the vegetation was not bushland as defined in the DCP, consistent with the analysis in his report and that the bushland further to the east could be managed appropriately.
26 The Commissioner summarised his conclusion at the commencement of his reasons that “the application should fail as a result of the adverse impact of the proposal on bushland” (at [3]). After generally describing the land, the planning controls and history of the proposal, the Commissioner recorded the issues identified by the Council in full (at [23]). This included issues 2.1 to 2.4 under the heading “bushland”. The Commissioner then noted that the salient issue was “bushland impacts” (at [24]).
27 Under the heading “evidence and findings” the Commissioner noted the requirement of the Rural Fire Service to manage the site as an inner protection area (at [25] to [27]). He referred to Dr Ambrose’s report prepared before the requirements of the Rural Fire Service were known (at [28]). The Commissioner then referred to the joint report between Dr Ambrose, Mr Ford and Mr Matheson (at [29] to [32]), before expressing his own summary of that evidence at [33] – namely, the experts’ evidence “suggests that within the building footprint there is weed invasion but down slope of the proposed footprint some bushland character is retained”. If the development occurred then the site would be managed as an inner protection area and the “bushland character” would be likely to change and not achieve the “ideal preferred by Dr Ambrose” (which I understand to be a reference to that part of Dr Ambrose’s evidence summarised at [28]).
28 The Commissioner then moved to the competing evidence of the planners at [34] and [35]. In [36], the Commissioner observed that he had satisfied himself on the site inspection that “there is some weight in Mr Armstrong’s contentions”. In [37], the Commissioner observed that the inner protection area requirements would make the area east of the proposed additions “unlike what is normally understood as bushland area under DCP1”. The Commissioner continued in [38] to [43] as follows:
38 Thus, even if one were to accept the position of the bushland area under the DCP1 as determined by Mr Smith there would be a conflict between the GTAs and the desire to maintain bushland area in the location suggested by him. As Mr Armstrong’s bushland area under the DCP1 would be greater in area the conflict would be also greater, were one to seek to maintain that IPA under ‘Planning for Bushfires’.
39 I do not accept the evidence of Mr Smith as to the location of the three planning areas under DCP1, as I consider that he has not approached the task of locating the three areas under DCP1 wholly from a planning point of view and was guided more by pragmatism. He placed his building area under the DCP1 in the location of the footprint of the proposal and then located proceeded to locate the buffer and bushland areas. I would attribute a higher aim to the methodology required under the DCP1.
40 Mr Armstrong’s bushland area relates well to the existing dwelling on the land, and if no development application were lodged in respect of No 26 Upper Cliff Road one might expect the status quo to remain and that much of the down slope areas of that lot could be maintained as bushland. This area could be rehabilitated as bushland, were there a will. Even without the will, degraded bushland on the eastern part of No 26 Upper Cliff Avenue could remain for others to rehabilitate later. If approval were granted to the present application, the ‘bushland area’ as defined under DCP1 would be either built upon or controlled by the GTAs. There was no evidence to the contrary, that this outcome would be expected to be unlike vegetation that is uncontrolled under the GTAs. Thus, I consider that the present application must fail, as the proposal, being down slope of the existing dwelling on No 26 Upper Cliff Avenue, would be likely to be in conflict with the council’s long-stated intention of maintaining a bushland area under DCP1.
41 In addition, I accept the evidence of Mr Armstrong that the vegetation, topography and distinctive features of the land are likely to be adversely affected by the proposal, including its associated engineering works, footings, retaining walls, paving, arrangements for onsite detention/disposal of storm water and bushfire asset protection zone management requirements, and thus would be contrary to the intention of cl 11 of the LCLEP.
42 Flowing from this conclusion, I am also satisfied that under SEPP19, that if the land outside the footprint of the existing and proposed buildings were managed as an IPA there would be a strong likelihood that there would be a detrimental impact on the adjacent bushland in Gore Creek Reserve in respect of the landscape, natural landforms, within the visual catchment, increased water run-off, construction impacts and the increased spread of weeds.
43 For the above reasons, the appeal is dismissed.
29 The “GTAs” are the general terms of approval issued by the Rural Fire Service.
30 The applicants submitted that the proper interpretation and application of the defined term “bushland” in the DCP was fundamental and that the Commissioner erred in this respect. Alternatively, if the Commissioner correctly construed and applied the DCP, then the DCP did not generally conform to cl 11 of the LEP as required by s 72(3) of the EPA Act and was invalid. The applicants developed these submissions as follows:
(1) The Commissioner made no reference in his reasons to “bushland” as specifically defined in cl 6 of the DCP.
(2) The Commissioner made no finding whether the land or any part of it contained vegetation “still representative of the structure and floristics of the natural vegetation” as required by the definition of “bushland” in cl 6.
(4) Alternatively, and if the Commissioner adopted Mr Armstrong’s approach to the DCP, then the DCP purported to establish the bushland area as one in which development was strictly prohibited. This was contrary to cl 11 of the LEP and hence the DCP did not generally conform to the LEP as required by s 72(3) of the EPA Act. The LEP conferred discretion on the Council to consent to development within the environmental protection area if it formed the required opinions, but the DCP purported to remove that discretion irrespective of the impacts of development within that area. This was impermissible (see, by analogy, Thomas Plunkett v William Smith (1911) 14 CLR 76 at 79-81 and 85, Paull v Munday (1976) 50 ALJR 551 at 554). The provisions of the DCP did not merely restrict or prohibit permissible development “unless certain conditions are met” ( North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23 at 31). To put it another way, identifying land as environmental protection area designated under cl 11 of the LEP triggered the commencement of a process of assessment in accordance with that clause. Under the DCP the presence of a bushland area, said to be the same as the environmental protection area under cl 11 of the LEP, was treated by the Commissioner as the end of, or as providing the presumptive answer to, the process of assessment. The Commissioner’s reasons thus disclose an actual or constructive failure to exercise jurisdiction.(3) Instead, the Commissioner appeared to have adopted the approach of Mr Armstrong to the LEP and DCP. This involved equating the “bushland” to the environmental protection area in cl 11 of the LEP, irrespective of the presence on that land of “bushland” as defined. To adopt that approach involved disregarding “bushland” as defined and, in consequence, either misconstruing or failing to apply the DCP.
(5) This erroneous approach coloured the whole of the Commissioner’s reasoning process, including the observations in [41] and [42] of the Commissioner’s reasons. The Commissioner does not describe these paragraphs as determinative. They are mere conclusive statements. The Commissioner could not merely adopt the conclusions of one expert (Mr Armstrong) in preference to another (Dr Ambrose) about the potential for impacts, without engaging in some reasoned analysis to that end (for example, Archibald v Byron Shire Counci l (2003) 129 LGERA 311 at [54]). The Commissioner made no reference to the bushland rehabilitation and maintenance plan, which contained a detailed proposal to ameliorate potential impacts.
31 The Council submitted that:
(1) The Commissioner’s reasons must not be read with a “fine tooth comb”. A fair reading is required. Cryptic language does not disclose any error of law if the relevant issues have been dealt with expressly or by implication. Any error of law must also be material before it will vitiate a decision ( Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368, Randwick Municipal Council v Crawley and Others (1986) 60 LGRA 277 at 283, Duggan v Woollahra Municipal Council [1991] Land & Environment Court No 10539 of 1991 (Unreported, Stein J, 30 August 1991), Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138, Martin & Spork Pty Ltd v South Sydney City Council (1999) 103 LGERA 213 at 217, Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275 at 280, Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419, Cacalot Pty Ltd v Sydney City Council (1996) 90 LGRA 424 at 430). Even a perverse or unreasonable finding of fact will not constitute an error of law ( Randwick City Council v Manousaki (1988) 66 LGRA 330 at 333).
(2) The DCP did not require the Commissioner to identify “bushland” as defined in cl 6 on the land in order to identify the “bushland area” as referred to in cl 8 because cl 8 provided that the environmental protection area in the LEP was part of the bushland area. The Commissioner identified the “bushland area” consistently with the DCP’s provisions. In any event, if the Commissioner had to address the definition of “bushland” in cl 6 then he did so at [31] of his reasons.
(3) If the applicants are permitted to raise the fresh issue about the validity of the DCP, then the DCP must be construed as a whole. Clause 8 of the DCP expressly refers to development being permitted in accordance with cl 11 of the LEP. The other provisions of the DCP relied on by the applicants concern only the manner in which permitted development is to be carried out consistent with the aims and objectives of the DCP to protect bushland. These provisions do not have the character of prohibiting development and are analogous to the provision considered in 7-Eleven Stores Pty Ltd v Sydney City Council (2004) 138 LGERA 125).
(4) The Commissioner made factual findings about bushland impacts in his reasons at [25], [27], [28], [33], [35], [36], [38] and [39].
(5) On a fair reading of the Commissioner’s reasons, the conclusion in line 10 of [40] commencing with the sentence “Thus, I consider…” had to be understood as the culmination of all of the preceding factual findings; namely, that there was an area on the land with bushland characteristics and the development would result in that area either being built upon or managed as an inner protection area inconsistent with its existing bushland character. The sentence should be read as if it were a new paragraph, following on from all the earlier findings.
32 It is important that decisions of Commissioners not be read with an “an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272 citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287).
33 With this principle in mind, I am nevertheless satisfied that the Commissioner’s reasons disclose a material error of law requiring the decision to be set aside. My reasons are as follows.
34 The provisions of the DCP and the relationship of the DCP to the LEP create significant potential for legal error. Careful reading of the DCP supports two of the Council’s submissions in this appeal, first, that the environmental protection area created by cl 11 of the LEP is bushland area under cl 8 of the DCP by definition and, secondly, about the relationship between the LEP and the DCP. With respect to that latter issue: - (i) the DCP does not purport to prohibit development within a bushland area because the DCP expressly accepts that such development is permissible in accordance with cl 11 of the LEP (see cl 8 of the DCP) and (ii) all other provisions of the DCP must be read consistently with this express acceptance. One reason this is the preferred construction of the DCP is that courts should generally strive to read instruments within power. If the provisions of the DCP were not read subject to the express acceptance of the permissibility of development within bushland areas in cl 8 (incorporating, by reference, cl 11 of the LEP), then those provisions would not generally conform to cl 11 and would be invalid. Accepting these submissions of the Council does not answer the whole of the applicants’ case, particularly insofar as it related to the Commissioner’s understanding and application of the DCP.
35 It requires substantial effort on the reader’s part to keep in mind that cl 8 confirms the permissibility of development in bushland areas when confronted with the balance of the DCP. Some of the DCP’s other provisions are consistent with the permissibility of development within bushland areas (such as the emphasis in the aims and objectives in cl 2 on providing development standards that encourage innovative and attractive design and the acknowledgement in cl 5 that the DCP may be satisfied other than by compliance with its provisions). Most of the other provisions, however, convey the contrary impression that development within a bushland area is strictly prohibited (such as the specification in cl 8 that buildings are not permitted in the buffer area and the building area is the “part of the development site where buildings are permitted”). This contrary impression would be particularly powerful if the reader’s attention had not been specifically drawn to: - (i) the key sentence in cl 8 of the DCP about development being permitted as provided for in cl 11 of the LEP, (ii) the general requirement for conformity between a DCP and LEP in (the now repealed) s 72(3) of the EPA Act, and (iii) the principle that instruments should be construed within power if possible. There is no reference to the key sentence in cl 8 of the DCP in the Commissioner’s reasons and, as s 72(3) of the EPA Act was not raised until this appeal, there was no opportunity for either party to draw that section or the general principle of construction to the Commissioner’s attention. Consistent with the applicants’ submissions, the Commissioner’s reasons indicate that he understood and applied the DCP in accordance with this contrary, and erroneous, impression.
36 Although the Commissioner made various factual findings about the relationship between the inner protection area requirements and maintaining the bushland character of the site, the application ultimately failed because of “conflict with the council’s long-stated intention of maintaining a bushland area under DCP1” (at [40]). As the applicants submitted, the Commissioner’s factual findings were all directed towards the application of the DCP. The DCP, as understood by the Commissioner, required that applications inconsistent with maintaining a bushland area “must fail” (at [40]). Yet the critical sentence in cl 8 of the DCP relied on by the Council in this appeal says that development is permitted within a bushland area as provided for in cl 11 of the LEP.
37 In other words, the Commissioner concluded that the development “must fail” by reason of inconsistency with the DCP. Read in context, this should be understood as presumptive inconsistency by reason of development occurring within the bushland area. However, when the DCP is construed in accordance with the Council’s submissions in this appeal development within the bushland area is not necessarily inconsistent with the DCP. It may or may not be inconsistent depending on an assessment of the development and the conclusions reached by the consent authority under cl 11 of the LEP. This is because cl 8 of the DCP requires the consent authority to apply cl 11 of the LEP. On this approach the identification of the bushland area is the first step in the assessment process required by the LEP and DCP whereas the Commissioner treated the identification of that area as the end of or providing an answer to the assessment. There are a number of indications supporting this inference.
38 First, Mr Smith gave evidence in the joint report about the interaction between cl 8 of the DCP and cl 11 of the LEP consistent with the proper approach to their interaction, but the Commissioner did not refer to this part of Mr Smith’s evidence. Instead, the reasons focus on the conflicting evidence about identification of the bushland area.
39 Secondly, the key determination is in the last sentence of [40]. Read fairly it is apparent that the Commissioner considered the application “must fail” because of the location of the development, which is not consistent with the proper construction of the DCP. This impermissibly treated the DCP as removing the discretion expressly conferred by cl 11 merely because development was proposed in the bushland area.
40 Thirdly, the observations in [41] with respect to cl 11 of the LEP followed as a mere additional matter, the Commissioner having already determined that the application “must fail”. However, the operation of cl 8 of the DCP depended on applying cl 11 of the LEP.
41 Fourthly, and as the applicants submitted, in [41] the Commissioner accepted Mr Armstrong’s conclusions without any apparent consideration of the bushland rehabilitation and maintenance plan. To form opinions in accordance with cl 11 of the LEP (and about SEPP 19), the Commissioner had to consider the efficacy or otherwise of the bushland rehabilitation and maintenance plan. The references in the reasons to Dr Ambrose’s report and joint report are not references to this plan. Even though this plan was annexed to Dr Ambrose’s report, it comprised a separate document containing detailed provisions about bushland management that had to be addressed by the Commissioner in order to apply cl 11 of the LEP (and, hence, cl 8 of the DCP).
42 Accordingly, I am satisfied that the Commissioner applied the DCP in a manner inconsistent with cl 11 of the LEP and thus inconsistent with the DCP properly construed. It is not difficult to understand why this occurred. The provisions of the DCP convey the impression of purporting to remove the discretion vested in the consent authority by cl 11 of the LEP. However, as resolution of the competing submissions in this appeal discloses, the provisions of the DCP which convey this impression must be read subject to: - (i) the key sentence in cl 8 of the DCP that development permitted under cl 11 of the LEP is permitted within any bushland area, (ii) the operation of s 72(3) of the EPA Act, and (iii) the general principle that instruments are to be construed within power if possible. A legal error of this character vitiates the Commissioner’s decision. The effect of the legal error is that the applicants have not in fact or law had a decision on the merits of the development application. For these reasons, I uphold the appeal, set aside the orders of the Commissioner made on 13 April 2007 and remit the matter to the Commissioner for determination in accordance with this decision.
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