Castle Constructions Pty Limited v North Sydney Council

[2009] NSWLEC 18

Land and Environment Court

of New South Wales

CITATION:	Castle Constructions Pty Limited v North Sydney Council [2009] NSWLEC 18
PARTIES:	APPELLANT Castle Constructions Pty Limited RESPONDENT North Sydney Council
FILE NUMBER(S):	11010 of 2005
CORAM:	Pain J
KEY ISSUES:	APPEAL :- error of law - whether Commissioner misconstrued skyline control in DCP - appeal dismissed
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C(1) Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979 s 56A North Sydney Council Development Control Plan 2002 cl 1.1 h.i North Sydney Local Environmental Plan 2001 cl 2(b), 3(a), 14(2), 28D State Environmental Planning Policy No 1 — Development Standards
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1168 Castle Constructions Pty Limited v North Sydney Council [2008] NSWLEC 1456 Coles v Woollahra Municipal Council (1986) 59 LGRA 133 Roads and Traffic Authority of New South Wales v Damjanovic (2006) 146 LGERA 403 Wiggins v Pittwater Council [2006] NSWLEC 543 Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	9 February 2009 10 February 2009 (written submissions) 11 February 2009
DATE OF JUDGMENT:	27 February 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Lazarus SOLICITORS McLachlan Thorpe Partners RESPONDENT Ms H Irish SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

27 February 2009

11010 of 2005 Castle Constructions Pty Limited v North Sydney Council

JUDGMENT

1 Her Honour: This is an appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) raising a question of law in relation to a decision of Bly C in Castle Constructions Pty Limited v North Sydney Council [2008] NSWLEC 1456 (Castle Constructions No 2) handed down on 12 November 2008. Bly C refused development consent for the Applicant’s proposal for a mixed use development of 36 storeys at 136-140 Walker Street, North Sydney (the site).

2 Bly C first gave a decision in these Class 1 proceedings in Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 1168 (Castle Constructions No 1) in which he refused development consent and dismissed the appeal. That decision was appealed pursuant to s 56A and the appeal was determined by Biscoe J in Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239. Biscoe J upheld the appeal and remitted the matter to Bly C for redetermination. Castle Constructions No 2 is the further determination of the matter by Bly C. There have been a number of earlier court proceedings in relation to the proposed development the subject of this appeal. Much of that history is identified by Biscoe J at [8]-[13] of Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239 and I do not need to repeat it here.

3 The site is zoned mixed use under the North Sydney Local Environmental Plan (2001) (the LEP) and the proposed development is permissible with development consent. The proposed building is to be about 100 metres in height with the top of the tower to be at RL 162.50 m. The site is within the North Sydney Centre, an area defined in the LEP. Under North Sydney Development Control Plan 2002 (the DCP) the site is within a larger area known as the North Sydney Planning Area.

4 Clause 14(2) of the LEP provides:

(2) Consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of controls.

5 Clause 2(b) provides:

The general aims of this plan are:
…
(b) development that is appropriate to its context and enhances the amenity of the North Sydney community and environment, and

6 Clause 3(a) provides:

The specific aims of this plan are:
(a) in relation to the character of North Sydney’s neighbourhoods, to:

(i) promote the character of the neighbourhoods and development which is compatible with neighbouring development in terms of bulk, scale and appearance, and

(ii) maintain a diversity of activities while protecting residential accommodation and local amenity, and

(iii) ensure that development on foreshore lands or land visible from the harbour or any public place does not adversely affect the appearance of that foreshore land, or the views of that land from the harbour or public place,

…

7 The LEP has provisions in Div 4 on building height and massing controls for buildings in the North Sydney Centre. Division 5 provides building height controls for the mixed use zone.

8 Clauses 28D(1) and (3) of Div 4 provide:

(1) Building heights and massing objectives The specific objectives of this clause are as follows:

(a) to achieve a transition of building heights generally from 100 Miller Street (Northpoint) and 79-81 Berry Street (being the location of the tallest buildings) stepping down towards the boundaries of the North Sydney Centre,
(b) to promote a height and massing that has no adverse impact on land in the public open space zone or land identified as a special area on Sheet 5 of the map marked “ North Sydney Local Environmental Plan 2001 (Amendment No 9)-North Sydney Centre ” or on heritage items,
(c) to minimise overshadowing of land in the residential and public open space zones or identified as a special area on Sheet 5 of the map marked “ North Sydney Local Environmental Plan 2001 (Amendment No 9)-North Sydney Centre ”,
(d) to protect the privacy of residents within and around the North Sydney Centre,
(e) to promote scale and massing that provides for pedestrian comfort, in terms of weather protection, solar access and visual dominance,
(f) to encourage consolidation of sites for provision of high grade commercial space and provision of public benefits.

…

(3) State Environmental Planning Policy No 1-Development Standards does not apply to a requirement made by subclause (2) (a), (b) or (c) (including a requirement varied under subclause (4)).

9 The DCP provides character statements for the North Sydney Centre Planning Area. The Character Statement for the Central Business District (CBD) of North Sydney within the planning area includes the following skyline controls in cl 1.1. h. i:

i. Buildings step down in height from the tallest buildings, being Northpoint (100 Miller Street) and Shopping World (79-81 Berry Street) to the boundary and surrounding residential areas (see fig 1.1 and fig 1.2).

ii. Roof design contributes to building’s appearance from a regional view catchment.

10 It is relevant to note that the site is in Walker Street near the boundary of the North Sydney Centre and consequently is not located under either of the two dimensional notional arcs in Fig 1.1 and 1.2 referred to in the skyline control. The north-south arc runs along Miller Street and the east-west arc runs along Berry Street.

Issue in this appeal

11 The question of law raised in the Notice of Appeal filed by the Applicant is:

Bly C erred in law in construing Figures 1.1 and 1.2 of section 1.1.h.i of the North Sydney Centre Character Statement in the North Sydney Development Control Plan 2002 by holding (at [34]) that the notional arcs in those Figures required a uniform building height around the boundaries of the North Sydney Centre.

12 Before the Court was an affidavit of Melanie McIntyre sworn 6 February 2009 and filed by the Respondent. Annexed to the affidavit were exhibits and other documents that were before Bly C in Castle Constructions No 2. The Applicant filed an affidavit of Victor Lahoud sworn 30 January 2009. Annexed to the affidavit was the transcript of proceedings for 15-17 October 2008 in Castle Constructions No 2 and the judgment of Bly C. A second bundle of documents was tendered by the Applicant (exhibit A) containing the LEP and the DCP Parts A and B.

13 In Castle Constructions No 2, Bly C stated at [6]-[7] that the remitter from Biscoe J required that the determination of the appeal was to be in accordance with that decision rather than a remittal for a full rehearing. The Commissioner considered that he had to rectify the deficiencies in his earlier judgment (Castle Constructions No 1) and anything that flowed from that. Those parts of the original judgment not otherwise affected by Biscoe J’s decision stood and were adopted. Bly C then considers Biscoe J’s decision, considers relevant evidence not previously taken into account in Castle Constructions No 1, notes the planning controls, reviews the additional evidence relied on by the parties at the further hearing, and draws his conclusions at [30]-[40]. Given the ground of appeal it is useful to set out several of these concluding paragraphs verbatim in order that the parties’ respective arguments have some context:

Conclusion

30 It has now become clear that with a relatively small adjustment to the height of the proposed building and taking into account the additional proposed setback from Walker Street, compliance with the three-dimensional envelopes developed by Mr Aspinall and Mr Mills would be achieved.


31 However, I am not convinced that these envelopes as constructed are sufficiently responsive to the boundaries of the North Sydney Centre. In deciding to give little weight such compliance, I have taken into account Dr Lamb's suggestion that whilst such an envelope could be umbrella shaped it would not be symmetrical. This is apparently because the perimeter of the North Sydney Centre is not circular, instead being irregular and rectilinear. Hence, whilst this consideration can be taken into account and given some weight, it does not overcome the concerns regarding visual dominance that I expressed in my earlier judgment at [27] – [28] regarding the location of the site vis-à-vis the North Sydney Centre boundaries.

32 In this reaching this conclusion, I find the evidence of Mr Mossemenear persuasive. In particular I accept the correctness of his present approach in interpreting and applying the planning controls that deal with building heights at the edge of the North Sydney Centre. As he explained, the data and buildings at the edges of the arcs can be considered as a maximum height for development where the site adjoins lower scale development, as is the case here. I thus agree that such a height can be derived from the heights determined by him and Mr Byrnes when they determined the average relative levels for the arcs at the edges of the North Sydney Centre (Exhibit 43)

33 This approach is also consistent with the conclusion in my previous judgment at [33] (that I continue to adhere to) that the site need not be treated as an area of transition between multi-storey buildings and small-scale buildings beyond the boundaries of the North Sydney Centre. In this context I do not accept that because the notional arcs project beyond the boundaries of the North Sydney Centre, allowable building heights at the boundaries should be commensurately increased, taking into account the different height controls that apply outside the centre.

34 Whilst the approach of applying an average height to the edges of the North Sydney Centre in locations other than underneath the two notional arcs is not straightforward, I nevertheless agree that this approach should attract significant and determinative weight. I have reached this conclusion notwithstanding that there is nothing in the planning controls other than the arcs themselves that would require a uniform building height around the boundaries. However, it is also important to remember that visual dominance and transition towards the boundaries of the centre are important considerations as are streetscape and topography and the area character statement in the DCP. In this context I accept that a reasonable interpretation of the notional arcs in the light of the planning controls is that there be reasonably uniform building heights around the perimeter of the centre.
(This paragraph is referred to in the question of law)

35 Finally here, in terms of the North Sydney Centre's skyline it is possible, as conceded by Mr Mossemenear, that the proposed building may not offend when contemplated from distant viewpoints. I have however been persuaded by his evidence that, taking into account the planning controls, because the site is positioned so close to the boundaries of the North Sydney Centre and giving appropriate weight to the site's context, that the proposed building would be too tall.
...

Applicant’s submissions

14 Bly C misconstrued the DCP in relation to the application of the notional arcs in the skyline control in holding that it requires that there be a reasonably uniform building height at the perimeter of the boundaries of the North Sydney Centre. The DCP does not include such a requirement whether express or implied. Bly C’s interpretation is fundamentally inconsistent with the skyline control. That interpretation is also inconsistent with the character statement which refers to buildings stepping down in height. That error vitiates the decision. Misconstruction of a statute is an error of law, see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at [156-157] referred to in Wigginsv Pittwater Council [2006] NSWLEC 543 at [24].

15 The notional arcs in the DCP are two dimensional. In order to apply them to the site they need to be converted into a three dimensional dome as the site is not under the arcs along Miller Street and Berry Street. That dome shape does not reflect the boundaries of the North Sydney Centre which are irregular (exhibit N). The arcs do not “stop” at the CBD boundaries or the North Sydney Centre Planning Area. There is no control dealing with a requirement for a uniform or reasonably uniform height at the boundaries of the North Sydney Centre. The arcs in Fig 1.1 show that there are varying building heights along the Miller Street arc and that there is no uniformity at all. While Mr Mossemenear, town planner, gave evidence that there were average heights at the boundaries of the North Sydney Centre that did not accord with the DCP controls and should not have been considered.

16 There are two errors in [34] identified in oral submissions:

(i) that to mandate a uniform building height around the North Sydney Centre is an error of law because it misconstrues the DCP as requiring something it does not require;

(ii) that to require a uniform building height is contrary to the notional arcs because those arcs contemplate a wide variety of heights at the boundary.

17 In relation to whether this appeal has utility, in Castle Constructions No 1 Bly C’s finding that the proposal did not comply with the notional arc control was fundamental to the dismissal of the Applicant’s Class 1 appeal. Consequently, a finding in this s 56A appeal that he has misconstrued that control, that his decision is vitiated and that the matter should be redetermined by him will have utility. The threshold for demonstrating utility is low. Basten JA (in minority but not on this point) in Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52, which was an appeal from an earlier s 56A appeal in this matter, stated at [123]:

Where an error on a question of law is identified, but is one which would not reasonably be supposed to have had some possible influence upon the result, an order dismissing the appeal would again be appropriate.

His Honour referred approvingly to Roads and Traffic Authority of New South Wales (RTA) v Damjanovic (2006) 146 LGERA 403 (an appeal from a s 45(1) objection hearing in this Court under the Land Acquisition (Just Terms Compensation) Act 1991).

Council’s submissions

18 The Council submitted the Applicant’s grounds of appeal:

(a) impugn a finding in a single paragraph of the Commissioner’s decision in Castle Constructions No 2;

(b) paraphrase and misrepresent what was held in [34];

(c) ignore the structure and effect of the Commissioner’s reasoning in [30] – [35] and [40];

(d) ignore the effect of Castle Constructions No 1 at [20], [26], the first sentence of [27] and [28] and [30] – [31] and [33], all parts of the Castle Constructions No 1 which have never been impugned by the Applicant or this Court and were adopted by the Commissioner at [8] of Castle Constructions No 2.

19 A proper reading of [34] in Castle Constructions No 2 suggests the Commissioner did not hold that the notional arcs in Fig 1.1 and 1.2 required a uniform building height around the boundaries of the North Sydney Centre. Rather he accepted that a reasonable interpretation of the notional arcs in light of the planning controls is that there be reasonably uniform building heights around the perimeter of the North Sydney Centre.

20 It is necessary to carefully read the decision to ensure a proper reading of [34]. His conclusions are not inconsistent with Fig 1.1 and 1.2 of cl 1.1 h. i of the North Sydney Centre Character Statement. There was no error of law. The Commissioner’s conclusions were based on the agreed evidence as described in [21] and Mr Mossemenear’s approach described at [27]-[29]. While the RL 162.50 m building proposed with a small adjustment would meet the envelopes of the notional arcs he continued to have concerns about visual dominance. He was revisiting that section of Castle Constructions No 1 that dealt with the issue of “what are the appropriate or maximum building heights at or close to the boundaries of the North Sydney Centre” ([20] in Castle Constructions No 1). His determination of that question was based on an agreed determination of the particular relative levels associated with the existing or achievable built forms as shown in Fig 1.1 and 1.2. When added to other evidence of existing buildings on the North Sydney Centre’s edge [29] this disclosed an average height to the edges of the centre ([28] and [34]). This can be inferred from the found extremities of the Berry Street arc (RL 137m - RL 141m), Miller Street ( RL 112m - RL 128m) and other buildings referred to at [29] first dot point.

21 The Commissioner’s decision adopted parts of his decision in Castle Constructions No 1 which were not impugned in the s 56A appeal before Biscoe J. Further, the Commissioner’s decision in Castle Constructions No 1 was not based solely on the application of the notional arcs control in the DCP.

22 All of the concluding paragraphs in Castle Constructions No 2 must be considered. In reaching the conclusion at [31] that the envelopes constructed were not sufficiently responsive to the boundaries of the North Sydney Centre he determined to give little weight to the fact that compliance with the three dimensional envelope could be achieved with small adjustments. The possibility of compliance did not overcome his concerns regarding visual dominance expressed in Castle Constructions No 1 at [27]-[28]. He also considered his finding in Castle Constructions No 1 at [33], that the site was not to be treated as an area in transition should continue. This was not the subject of the appeal before Biscoe J and stands.

23 Applying an average height to the edges of the North Sydney Centre not underneath the two notional arcs, while not straightforward as the Commissioner acknowledged at [34], was not unreasonable.

24 In supplementary written submissions which reflected oral submissions made at the hearing, the Commissioner’s reasoning in relation to the building heights at each end of the two arcs was considered. The Council submitted that at RL 162.50m or even RL 156.80m (viz Castle Constructions No 2 at [25]), the proposed building was well above both an average of the extremities of the Berry Street arc (RL 137m – RL 141m) and an average of the extremities of the Miller Street arc (RL 112m – RL 128m), and its exceedance was well above the arcs’ ranges of deviation from such averages. The arcs’ average heights were derived from the exercise in Castle Constructions No 2 at [22] which was based on the notional arc diagrams (Castle Constructions No 2 at [21]). At RL 162.50m or even RL 156.80m, the proposed building was also well above the RL of 130.15m referred to in the first dotpoint at [29] in Castle Constructions No 2.

25 In further written submissions in response to the Council’s supplementary submissions, the Applicant criticised the Council’s analysis of Castle Constructions No 2 as demonstrating that it can be inferred from the heights agreed by the planners as to the four extremities of the two notional arcs that the building heights at these four locations do not vary significantly. Various reasons for this are given. As I do not consider this part of the Council’s argument was relevant to the arguments raised in relation to the question of law as that does not raise whether the Commissioner’s reasoning was reasonable, I do not intend to set out the arguments in more detail.

Finding

26 Bly C considered in Castle Constructions No 2 that his previous judgment (Castle Constructions No 1) stood, apart from those paragraphs he had to revisit in conformity with the decision of Biscoe J. It is necessary to identify what his earlier decision considered in order to provide relevant context for the decision under appeal. In Castle Constructions No 1 Bly C considered the impacts from the proposed development of excessive height and scale ([15] – [35]), inadequate setback from Walker Street ([36] – [39]), unacceptable impact on heritage items in the vicinity ([40] – [44]), overshadowing of the Century Plaza building ([45] – [67]) and overshadowing of dwellings outside the North Sydney Centre ([57] – [67]).

27 Further, he considered whether the proposed building was inconsistent with the North Sydney Draft LEP Amendment No 28 ([12] – [14]). The draft LEP proposed amendment of cl 28D of the LEP so as to promote a height and massing of buildings that would have no adverse impact on land identified as a special area or on heritage items (par 6). As noted at [12] – [13], Lloyd J held in earlier proceedings that the Council resolutions regarding the draft LEP, the associated s 68 report and request to the Minister to make the plan were invalid and of no effect. Consequently Bly C noted (at [14]) that while it was not certain and imminent it could be given some (albeit limited) weight as a public interest consideration under s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). In Castle Constructions No 2 Bly C referred to the draft LEP at [36] – [38] and concludes it is unlikely that a draft local environmental plan would permit a building for this site that is as tall as the Applicant presently seeks approval for.

28 Setback from Walker Street was considered at [36] – [39] by Bly C in Castle Constructions No 1. In Castle Constructions No 2 Bly C noted at [24] that a greater setback from Walker Street was now proposed.

29 In Castle Constructions No 1 the impact on heritage items was considered at [40] – [44] and Bly C concluded that there would be no adverse impact on the heritage items sufficient to warrant refusal of the application.

30 Possible overshadowing of the Century Plaza building was considered acceptable by the Commissioner at [50]. Overshadowing of neighbouring properties outside the North Sydney Centre was considered at [51] – [67]. A State Environmental Planning Provision No 1 – Development Standards (SEPP 1) objection in relation to a variation of the amenity test in cl 28D(2)(d) of the LEP was considered and rejected ([58] – [67]). Part of the Commissioner’s reasoning for refusing the SEPP1 objection was because the proposed development did not meet the notional arc controls in the DCP ([66]). This summary of the issues in Castle Constructions No 1, and as further considered in Castle Constructions No 2, suggests that issues other than excessive height and scale were not determinative of the appeal. The Commissioner’s finding in Castle Constructions No 2 that it is unlikely a draft LEP would permit a building for this site as tall as the proposed development, identified in par 27, is confirmation of his findings on height and scale rather than being a determinative issue given the limited weight that could be attributed to the draft LEP.

Excessive height and scale

31 In relation to excessive height and scale, at [19] – [20] in Castle Constructions No 1 the Commissioner considered whether there was the requirement for a transition or a stepping down towards the boundaries given that the site adjoins the eastern boundary of the North Sydney Centre that extends along Walker Street. At [20] he said:

The question that thus arises is whether the height difference from the tallest buildings is sufficient, in the context of the requirement that the stepping down is actually towards the boundaries of the North Sydney Centre. Given the relationship between the tallest buildings, the site and the North Sydney Centre boundaries, I am satisfied that this requirement is met. Despite this, and notwithstanding that the requirement is for a stepping down towards rather than to the boundaries it is appropriate to consider what are appropriate or maximum building heights at or close to the boundaries of the North Sydney Centre where the site is located. Unfortunately the controls in the LEP for the North Sydney Centre provide no direct assistance. Clause 29 of the LEP applies various building height limits in the Mixed Use, Residential and Neighbourhood Business Zones (by reference to Sheet 2 of the map) but there is no indicated height limit for this site. Hence the height control of RL of 162.5in cl 28D(2)(a) is unaffected and remains as the predominant height control that is met by this development. Similarly cl. 30 that provides for a building height plane at the boundaries of the North Sydney Centre is no longer applicable. In the circumstances I am convinced, taking into account the mixed use zone and the height and scale objectives, that the remaining controls in the LEP are indicative of an abrupt change in building heights at the boundary. I shall return to this aspect later.

32 The notional arcs in Fig 1.1 and 1.2 referred to in the skyline control in the DCP (the subject of this appeal) were considered at [22] – [27]. At [28] he concluded that unless the proposed building was lowered significantly in order to meet the requirements of the DCP it would have an unacceptable visual dominance so that refusal of the application is warranted.

33 At [29] – [32] Bly C considered the scale, form and massing in the locality including neighbouring residential areas as required by the DCP in light of cl 3 and cl 28D(5) of the LEP given that the site adjoins land zoned residential. At [33] he considered the site should not be treated as an area of transition between the multi-storey buildings in the North Sydney Centre and the small-scale buildings outside its boundaries. He considered that the LEP and DCP provide for an abrupt edge to the North Sydney Centre. At [35] he concluded a building at a reduced RL 130m would be visually acceptable. He dismissed the appeal as the proposed development was too tall.

34 In Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239 Biscoe J set out [23] – [28] and [35] of Castle Constructions No 1 as those paragraphs relevant to the s 56A appeal he was determining. Those parts of the judgment considered the application of the two notional arcs in Fig 1.1 and 1.2 of the DCP skyline control. At [28] Biscoe J concluded that the concept of a three dimensional umbrella generated by the notional arcs in Fig 1.1 and 1.2 was fundamental to the Commissioner’s decision and that the Applicant had not had an opportunity to address that issue. For that reason, inter alia, the s 56A appeal should be upheld. A further ground of appeal upheld by Biscoe J at [34] was that evidence relevant to that issue in exhibit N and of Dr Lamb and Mr Byrnes, town planner, had been overlooked by the Commissioner and should have been taken into account.

35 In Castle Constructions No 2 Bly C considered [24] – [28] and [35] of Castle Constructions No 1 as those parts of that judgment affected by Biscoe J’s decision and therefore those parts which he had to reconsider. The evidence considered included the evidence tendered at the first hearing before Bly C but held by Biscoe J not to have been taken into account by him. New evidence from Mr Aspinall and Mr Mills, computer modellers, who provided computer modelling of the notional arcs in three dimensions, and Mr Mossemenar and Mr Byrnes, town planners, was also considered.

36 At [24] Bly C observed that the proposed building had been incorporated into the computer models and these showed that it projected beyond the notional envelope of the arcs in three dimensions by as much as 7m. Mr Byrnes’ evidence was that the likely margin of error might be two storeys. The projection of the building beyond the envelopes was reduced in light of the proposed additional 1.2m setback from Walker Street. At [27]-[28] he noted that Mr Mossemenear had changed his view that the building should not exceed RL 103m and accepted that RL 130m was acceptable. Mr Mossemenear did not accept that the three dimensional envelope generated from the notional arcs was appropriate to determine the appropriate maximum building height for the site as the envelopes did not take into account the local context and that the site is close to the boundaries of the North Sydney Centre. The judgment stated

28 … As he [Mr Mossemenear] said in his report, in relation to a three-dimensional envelope: the edge of the envelope must be the edge of the North Sydney Centre and:

If the data from the edge of the arcs and other existing buildings on the edge of the centre can provide an average height, it might be appropriate to at least consider that height as a maximum height for development particularly where the site adjoins lower scale residential development.
29 In this context he refers to a number of relative levels that are not dissimilar to those referred to in Exhibit 43:

· The maximum building height (100 Arthur Street) at the edge of the commercial centre of RL of 130.15 m,

· The southern end of the Miller Street arc that has an RL of 126.34 m,

· The northern end of the Miller Street arc (237 Miller St) that has an RL of 125.56 m

37 Bly C then stated his conclusions at [30]-[35] inter alia (see par 13) that the three dimensional envelopes did not sufficiently respond to the boundaries of the North Sydney Centre. His concerns about visual dominance in Castle Constructions No 1 were not overcome. At [32] he accepted the evidence of Mr Mossemenear in relation to the edge of the North Sydney Centre. At [33] he stated that approach was consistent with his earlier conclusion in Castle Constructions No 1 at [33] that the site is not an area of transition between multi-storey buildings and small-scale buildings outside the boundaries of the North Sydney Centre. Given that context he did not accept that because the notional arcs project beyond the boundaries of the North Sydney Centre, allowable building heights at the boundaries should be increased in light of the different height controls that apply outside the centre. He made findings in [34] which are the focus of the question of law raised in this appeal. I now turn to the Applicant’s question of law.

38 There are at least two difficulties with the question of law posed by the Applicant. Firstly, it does not accurately state what the Commissioner held at [34] and that lack of accuracy is important. If all the words in [34] are considered the Commissioner does not draw the bald conclusion at [34] that is stated in the question of law. Paragraph 34 concludes:

In this context I accept that a reasonable interpretation of the notional arcs in light of the planning controls is that there be reasonably uniform building heights around the perimeter of the centre.

The Council’s submission that this reflects the Commissioner’s reasoning process in light of various factors is correct. The Commissioner had before him the agreed relative levels of buildings and data and buildings at the edges of the arcs as discussed in [21] – [23] and [32]. At [32] he accepted Mr Mossemenear’s approach, summarised at [27] – [29]. The notional arcs were being used with the relative levels associated with the built forms as identified in [21]. The experts all contributed to the evidence discussed by the Commissioner. Particularly relevant is the third sentence of [34] which refers to the issues of visual dominance, transition towards the boundaries of the centre, streetscape and topography, and the area character statement in the DCP as discrete matters. These are separate from the notional arcs and arise from the LEP and DCP character statement. These factors inform the concluding sentence of [34] and for that reason the Commissioner was not therefore drawing the bald conclusion stated in the question of law in this appeal.

39 Secondly, it is important in s 56A appeals that any findings sought to be challenged must be considered in the context of a judgment as a whole. Stein J in Coles v Woollahra Municipal Council (1986) 59 LGRA 133 stated at [138] that “the “fine-tooth comb” approach should not be employed when examining the decisions of technical assessors for errors of law”. This finding has been repeated subsequently in many decisions of this Court.

40 It is also important to remember that a Commissioner is not expected to be a lawyer. His reasons should not be reviewed pedantically for error as if he were. It is always instructive to consider Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 where at [368] Kirby P (McHugh JA agreeing) stated in relation to the review of Commissioner’s decisions:

It would be quite wrong, in my opinion, for this court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the court should take into proper account the composition of the tribunal, as it has been created by the parliament.

41 As submitted by the Council, [34] must be read with the preceding paragraphs ([30] – [33]) of the Commissioner’s conclusion set out at par 13 and the summary of evidence in Castle Constructions No 2 identified at par 35 - 36. His finding in these paragraphs must also be considered with those in Castle Constructions No 1 at [33] that the site should not be considered an area of transition but rather an abrupt edge, and that he was concerned about visual dominance, which findings were not the subject of the s 56A appeal before Biscoe J. The Commissioner has addressed the evidence before him in light of the statutory controls, including the notional arcs, to reach a conclusion as to the acceptability of the proposed building taking into account relevant findings in both Castle Constructions No 1 and Castle Constructions No 2.

42 The reasoning process disclosed in the judgment as reflected in [34] and set out in par 36 and 37, does not give rise to the question of law which the Applicant seeks to raise in this appeal.

43 Thirdly, the Applicant’s counsel submitted there were two errors in [34] (set out in par 16). For the reasons given immediately above, the first error identified by the Applicant that the Commissioner mandated a uniform building height does not accurately reflect what the Commissioner did, expressly or by implication, in [34]. Contrary to the submissions of the Applicant’s counsel more than one interpretation of [34] is available.

44 The second error identified by the Applicant (par 16) that to require a uniform building height is contrary to the notional arcs because these contemplate a wide variety of heights at the boundary is not based on a correct analysis of the Commissioner’s reasoning process for reasons already given in par 38 and 40.

45 Further, the alleged error as stated suggests that a mandatory approach to the application of the DCP as if it is a binding instrument in all respects is required. DCP controls must be taken into account under s 79C(1)(a)(iii) of the EP&A Act. As identified by Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 589, DCP controls are “to be considered as a “fundamental element” in or a “focal point” of the decision making process” [602]. The way in which they are taken into account must depend on the nature of the control in the instrument and the circumstances in which the controls are to be applied.

46 The Commissioner had to consider what was necessary to address building height on the subject site in the absence of detailed statutory controls (Castle Constructions No 1 at [20] fourth sentence set out above in par 31). The challenge posed in the merit appeal of applying the statutory controls is also reflected in the first and second sentences of [34] which refer to the difficulty of applying the existing controls. The notional arcs in Fig 1.1 and 1.2 in the DCP are general in nature and can only be indicative, not prescriptive. The notional arcs in Fig 1.1 and 1.2 are two dimensional north-south/east-west arcs. Because of the general nature of the DCP skyline control and gaps in the statutory controls concerning height at the site it was necessary for the Commissioner to consider those controls in the merit appeal informed by the evidence provided by the parties.

47 By pursuing the three dimensional approach to the arcs, the Commissioner necessarily went beyond the literal text of the DCP as that makes no mention of the three dimensional application of the notional arcs. In the DCP there is no discussion about their application as a three dimensional model. In Castle Constructions No 1 the Council’s town planner, Mr Mossemenear, argued that the notional arcs should be disregarded but the Commissioner did not agree with such an approach and he considered the application of the arcs in three dimensions (see [23]). In doing so Biscoe J found that he fell into error, hence Castle Constructions No 2. In Castle Constructions No 2 the Commissioner considered the evidence before him from both parties about the application of the notional arcs to the extent these applied and found Mr Mossemenear’s evidence as to their appropriate application to be persuasive. When Castle Constructions No 1 and No 2 are considered it is clear the Commissioner did thoroughly consider the application of the notional arcs in the context of other relevant planning controls to the extent these existed and in light of the evidence before him.

48 There is no error of law by the Commissioner, contrary to the Applicant’s application and submissions. The appeal is dismissed.

49 As no argument has been heard in relation to the costs of the appeal I will reserve those costs. I note that the usual costs order for a 56A appeal would be that costs follow the event as the appeal is separate from the merit proceedings from which they arise. The usual rule which applies in Class 1 merit proceedings that each party pay its own costs unless fair and reasonable to order otherwise does not apply in this appeal.

Orders

50 The Court makes the following orders:

1. The Applicant’s s 56A appeal is dismissed.
2. Costs are reserved.