Council of the City of Sydney v Vision Land Glebe Pty Ltd

[2019] NSWLEC 60

Land and Environment Court

New South Wales

Medium Neutral Citation:	Council of the City of Sydney v Vision Land Glebe Pty Ltd [2019] NSWLEC 60
Hearing dates:	26 March 2019
Date of orders:	01 May 2019
Decision date:	01 May 2019
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	The Court orders: (1)   The appeal is dismissed. (2)   The applicant is to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL – appeal against Commissioner’s decision on questions of law – concept development application – demolition of existing building and approval of envelope of replacement building – issue of whether existing building of heritage significance – Commissioner found building not to be of heritage significance – Commissioner preferred one witness over another – Commissioner found adaptive reuse not economically viable – Commissioner accepted only witness as not contradicted – adequacy of reasons for findings – alleged irrationality of findings – whether denial of procedural fairness in making findings – delay in judgment – whether delay affected findings
Legislation Cited:	Land and Environment Court Act 1979 s 56A
Cases Cited:	Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239 Cavasinni Constructions Pty Ltd Fairfield City Council (2010) 173 LGERA 456; [2010] NSWLEC 65 Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 Hadid v Redpath (2001) 35 MVR 152; [2001] NSWCA 416 Keith v Gel [2013] NSWCA 339 Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76 McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Mount Lawley Pty Ltd v Western Australian Planning Commissions (2004) 29 WAR 273; [2004] WASCA 149 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2014] NSWLEC 157 Page v Parkes Shire Council (1991) 72 LGRA 97 Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 Parramatta City Council v Pestell (1972) 128 CLR 305 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 Vision Land Glebe Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1593
Category:	Principal judgment
Parties:	Council of the City of Sydney (Applicant) Vision Land Glebe Pty Ltd (Respondent)
Representation:	Counsel: Mr P Clay SC, Ms L Nurpuri (Applicant) Mr A Galasso SC, Ms E Bathurst (Respondent)   Solicitors: Council of the City of Sydney (Applicant) Landerer & Company (Respondent)
File Number(s):	2018/389171
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2018] NSWLEC 1593 Date of Decision: 7 December 2018 Before: Dixon SC File Number(s): 2017/184221

Judgment

Nature of appeal and outcome

1. Vision Land Glebe Pty Ltd (“Vision Land”) made a concept development application for the demolition of the Metropolitan Remand Centre (“MRC”) and approval of an envelope for a replacement residential flat building on land known as 357 Glebe Point Road, Glebe. The MRC is a purpose-built children’s court and remand centre, built in the Brutalist style of architecture. The MRC is one of a number of buildings on the site, including the State heritage listed buildings known as the Bidura House Group. The replacement residential flat building is part 7 storeys and contains two levels of basement parking and nine 2 storey (plus attic) dwellings.

2. After the Council of the City of Sydney (“the Council”) was deemed to have refused the concept development application, Vision Land appealed to the Court. Senior Commissioner Dixon heard evidence on the hearing of the appeal on 26 to 28 February 2018 and submissions on 12 April 2018. The Senior Commissioner reserved her judgment at the conclusion of the hearing on 12 April 2018.

3. The Senior Commissioner delivered judgment 7 months later on 16 November 2018: Vision Land Glebe Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1593.

4. The Senior Commissioner indicated that she proposed to approve the concept development application but after Vision Land had provided amended plans reflecting her reasons for judgment and the Council had provided final conditions of consent. In so deciding, the Senior Commissioner found that the MRC should be demolished to provide for the replacement building. The Senior Commissioner made orders on 7 December 2018 upholding the appeal and granting consent to the concept development application subject to conditions.

5. The Council appealed under s 56A of the Land and Environment Court Act 1979 (“the Court Act”) against the Senior Commissioner’s decision on questions of law. The seven grounds of appeal fall into four categories of legal error:

1. failure to give reasons: the Senior Commissioner failed to give reasons for determining that the MRC should be demolished, for preferring the evidence of Vision Land’s heritage expert, Mr Davies, to the evidence of the Council’s heritage expert, Mr Harper, concerning the heritage significance of the MRC, and for accepting the evidence of Vision Land’s land economist, Mr Hill, that adaptive reuse of the MRC was not economically viable (grounds 1, 2 and 5);

2. irrationality: the Senior Commissioner’s finding that the evidence of Mr Harper was not balanced or objective was irrational, illogical or manifestly unreasonable (ground 3);

3. denial of procedural fairness: the Senior Commissioner denied the Council procedural fairness by finding that Mr Harper lacked objectivity without that assertion being put to him and failing to address the Council’s submissions as to why the evidence of Mr Hill was not relevant (grounds 4 and 6); and

4. delay in delivering judgment: the delay in delivering judgment of 9 months after the completion of evidence and 7 months after the hearing of submissions diminished the Senior Commissioner’s recollection of the evidence of Mr Harper and impaired the Senior Commissioner’s finding that Mr Harper’s evidence lacked objectivity, thereby denying the Council procedural fairness (ground 7).

6. I find that the Council has not established that the Senior Commissioner erred on questions of law in any of the ways claimed by the Council. The appeal should be dismissed with costs.

The alleged failure to give reasons

The consideration of the heritage impact of demolition of the MRC

7. The concept development application proposed the demolition of the existing MRC and its replacement with a new residential flat building. The Council raised issues on the appeal concerning both developments, which the Senior Commissioner grouped as the two principal issues in the appeal (in [4] of the judgment):

“There are two principal issues, although each has subcategories.

- First, whether or not the MRC should be demolished. The Council contends that it should not be demolished and the appeal be dismissed.

- Secondly, if I determine to approve the demolition of the MRC, then whether the form of the building relative to the Bidura House Group and the surrounding heritage conservation areas should be approved as proposed. This second issue also involves heritage and urban design and planning considerations.”

8. The Senior Commissioner addressed in her judgment the second principal issue concerning the envelope for the replacement residential flat building before she addressed the first principal issue of whether or not the MRC should be demolished. The Senior Commissioner found that, with certain amendments and changes which she found to be necessary, the envelope for the replacement residential flat building should be approved (the analysis and findings concerning the first issue include [58]-[91] and [104]-[107] and the upfront conclusion at [6] of the judgment).

9. The Senior Commissioner next addressed the proposal to demolish the MRC to make way for the replacement residential flat building. The Council had opposed the demolition of the MRC on heritage grounds. The demolition of the MRC had the potential to have three types of heritage impacts:

1. impact on the State heritage listed Bidura House Group of buildings;

2. impact on the local heritage listed Glebe Point Road Heritage Conservation Area; and

3. loss of the MRC itself.

10. The Senior Commissioner addressed the first two types of heritage impact, primarily in [15], [92] and [93] of the judgment, and concluded that the demolition of the MRC will not cause unacceptable heritage impacts on the Bidura House Group of buildings or the Glebe Point Road Heritage Conservation Area. The Council did not challenge the Senior Commissioner’s findings concerning these heritage impacts.

11. The Senior Commissioner next considered the heritage impact of demolition of the MRC. The Senior Commissioner noted that the MRC itself is not heritage listed at State or local level and, despite being located on a site noted as contributory, is not itself nominated as a contributory building within the Glebe Point Road Heritage Conservation Area (at [15], [37] and [93] of the judgment).

12. The Senior Commissioner noted that the Council had applied to the Minister to have the MRC heritage listed and for him to impose an interim heritage order, but the Minister had declined to take either action: at [93] of the judgment.

13. The Senior Commissioner noted that there are only non-statutory listings of the MRC, by the Australian Institute of Architects (NSW Chapter) and the National Trust, but the Senior Commissioner considered that “they are of no significance in this case” (at [93]). Her reason was that the Australian Institute of Architects listing was undertaken by Mr Harper, the Council’s heritage expert who advocated for the retention of the MRC, and the National Trust listing was authored by an objector to the development who lived nearby (at [93]).

14. The Senior Commissioner next considered whether, notwithstanding that the MRC was not statutorily heritage listed at State or local level, it was nevertheless of heritage significance. The parties adduced competing evidence from their heritage experts, Mr Davies for Vision Land and Mr Harper for the Council.

15. The Senior Commissioner noted that “while the parties’ heritage experts agreed that the MRC is a purpose built Courthouse in a Brutalist style and an example of the work of NSW Government Architect’s Branch, they disagree about its heritage significance and the acceptability of its demolition to make way for a residential flat building” (at [16] of the judgment).

16. The Senior Commissioner recorded where in the evidence Mr Davies and Mr Harper had assessed the MRC, expressed their different approaches to how the heritage significance of the building is to be assessed, and expressed their opposing conclusions about whether the MRC should be retained or demolished (at [96] of the judgment). The Senior Commissioner summarised Mr Davies and Mr Harper’s competing positions (at [97] and [98] of the judgment):

“In summary, Mr Davies final position is that:

- the MRC is not a significant example of the Brutalist style;

- it is not innovative;

- it is not exemplary;

- it failed in its purpose as a design;

- it does not fit within the context of the Glebe Point Road Heritage Conservation Area;

- it is not rare (unless one is considering the class of buildings as those within the Court and justice system (T185.35-39);

- the building is not capable of reuse in its current form – the very specific layout combined with monumental construction makes adaptation very difficult;

- the historical use of the building has ceased and will not return;

- the building is not heritage listed at State or local level and while on a site noted as contributory it is not a contributory building within the Glebe Point Road Heritage Conservation Area.

Whereas Mr Harper concluded after his analysis as explained in his expert report filed on 20 February 2018, as expanded upon in the joint report (Exhibit 8) that the MRC has heritage significance because of its historic, aesthetic and social significance and rarity. In that regard he describes the MRC as:

‘…a rare and intact purpose built children’s court (and remand centre) in the Brutalist style built on a site that has been associated with juvenile and welfare since the early 20th Century. In its distinctive architectural detailing, the MRC is considered to have heritage significance and can meet the threshold’.”

17. The Senior Commissioner found (at [99] of the judgment) that she preferred Mr Davies evidence to Mr Harper’s evidence:

“I accept Mr Davies’ expert assessment over that of Mr Harper because in my view it is more balanced and objective.”

18. The Senior Commissioner immediately gave her reason for this preference in [100] of the judgment):

“While Mr Harper is clearly an expert of Brutalist architecture – presently undertaking research into Brutalist architecture for the purposes of his PhD at Sydney University, and a media advocate for the retention of this form of architecture (even after the commencement of this hearing) these matters in my opinion diminish his evidence for the retention of the MRC. While there is no issue that the criteria set out in Mr Harper’s Significance Assessment at Table 6 of his statement (Exhibit 5) are appropriate I am faced with evaluating these experts’ opinions and in that circumstance it is appropriate to prefer the objective assessment provided by Mr Davies.”

19. The Senior Commissioner next considered the issue put forward by the Council that, if the MRC did have heritage significance, it could be adaptively reused for other purposes, thereby justifying its retention. Mr Hill, Vision Land’s land economist, assessed the adaptive reuse options proposed by the Council’s heritage expert, Mr Harper. Mr Hill concluded that these adaptive reuse options were not economically viable (at [57] of the judgment). The Senior Commissioner evaluated Mr Harper’s adaptive reuse options and Mr Hill’s assessment that these options were not economically viable (at [101] and [102] of the judgment):

“Furthermore, even if the MRC was considered to be of significance, the examples of adaptive reuse advocated by Mr Harper are based on the evidence simply not feasible or achievable or economically viable. Mr Harper suggests gutting the internal of the building and adapting it for use as a commercial building; a school for 600 primary school children; or an integrated residential development with a community library and gym, sports facility. The figures in his statement of evidence demonstrate this would require the inclusion of addition levels on the existing play areas for the children and varying degrees of new inclusions and internal reconfigurations of the layout – and subject to a conservation management plan in an effort to retain essential elements.

In the end, Mr Harper accepted that any adaptive reuse of the building involved significant and extensive internal changes. Such modifications are clearly not financially viable having regard to Mr Hill's economic analysis of the option report (Exhibits H & F) which was not contradicted by any other expert.”

20. The Senior Commissioner concluded that:

“Although the demolition of the MRC is controversial, it is clear to me from the evidence that the building should be demolished to provide for a replacement building that will enable the orderly and economic redevelopment of the site consistent with the planning controls and compatible with the local area. (at [7])

…

Having undertaken the requisite consideration, I am prepared to grant development consent to the demolition of the MRC as required by cl 5.10(2) of the LEP.” (at [93])

The Council’s argument that the reasons were inadequate

21. The Council submitted that, notwithstanding this analysis and these findings concerning the heritage significance of the MRC and whether or not it should be demolished or retained, the Senior Commissioner nevertheless failed to give adequate reasons for three conclusions: first, the ultimate decision to allow the demolition of the MRC, secondly, the finding that she accepted Mr Davies’ evidence over Mr Harper’s evidence that the MRC did not have sufficient heritage significance to warrant retention of the MRC, and thirdly, the finding accepting the evidence of Mr Hill that, even if the MRC did have heritage significance, the suggested adaptive reuse options were not economically viable. The alleged inadequacy of reasons for the first decision was largely consequential upon the alleged inadequacy of reasons for the second and third findings. That is to say, by failing to provide reasons for her second and third findings, the Senior Commissioner failed to give reasons for her ultimate decision.

22. The Council submitted that the Senior Commissioner’s reasons for the second finding were inadequate for three reasons. First, the Senior Commissioner commenced her analysis from the wrong starting point, by considering whether there is sufficient heritage significance to warrant local listing, rather than the principal issue of the case of whether or not the MRC should be demolished. The Senior Commissioner thereby misdirected herself by asking and answering the wrong question.

23. Secondly, the Senior Commissioner failed to address substantively the difference in opinion between the heritage experts. The Council gave as an example the criterion of rarity. Mr Davies had opined that “it is not rare (unless one is considering the class of buildings as those within the Court and justice system)” (at [97]) while Mr Harper had opined that the MRC is “a rare and intact purpose built children’s court (and remand centre) in the Brutalist style” (at [98]). The Council submitted that the Senior Commissioner needed to, but did not, address the Council’s argument that rarity within that subset of buildings was sufficient for a finding of heritage significance and retention.

24. Thirdly, the Senior Commissioner simply stated that she preferred one witness (Mr Davies) over another witness (Mr Harper) without explaining her reasoning process, citing Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28] and Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2014] NSWLEC 157 at [41]. The Senior Commissioner did not analyse the evidence of each witness and identify a reasonable basis as to why Mr Davies’ evidence was to be preferred over Mr Harper’s evidence.

25. The Council submitted that the Senior Commissioner’s reasons for the third finding were inadequate. The Senior Commissioner simply accepted the evidence of Mr Hill, presumably because it was not contradicted by any other expert (at [102]). The Council submitted that it was not open to the Senior Commissioner simply to accept Mr Hill’s evidence without any analysis. The duty to analyse Mr Hill’s evidence was unaffected by the absence of cross examination or any competing expert evidence, citing Keith v Gel [2013] NSWCA 339 at [127]-[131]. The Senior Commissioner failed in any meaningful way to deal with the unchallenged expert evidence of Mr Hill.

26. The Council also submitted that the Senior Commissioner failed to address the submissions made by the Council in relation to the evidence of Mr Hill. Mr Hill’s evidence relied wholly on the purchase price for the site paid for by Vision Land, and the assumptions inherent in that decision. Planning or heritage significance is not determinative on an expected return on investment paid for by a particular investor. The Council submitted that this was clearly a significant step in the Senior Commissioner’s decision to allow the demolition of the MRC, but she wholly failed to discharge her duty to give reasons on a matter material to the decision.

Vision Land’s argument that the reasons were adequate

27. Vision Land submitted that the Senior Commissioner’s reasons for preferring the evidence of Mr Davies over that of Mr Harper and for accepting Mr Hill’s evidence were adequate in law. Vision Land submitted that the reasons had to be viewed in context: first, the context that the Senior Commissioner was resolving a combination of issues raised by the developments proposed in the concept development application involving the demolition of the existing MRC and the replacement with a new residential flat building; secondly, the context of the contentions, evidence and submissions made in the appeal to which the Senior Commissioner was responding; and thirdly, the context of the other parts of the judgment where the Senior Commissioner discussed matters of relevance to the issues.

28. As to the first context, Vision Land noted that the concept development application sought development consent for demolition of the existing MRC and the approval of an envelope for a replacement residential flat building on the site of the existing MRC; the two proposals “went hand in glove”. The combined developments had the potential to impact on the listed heritage item of the Bidura House Group on the site and the Glebe Point Road Heritage Conservation Area. This was recognised by the Senior Commissioner in numerous places in her reasons for judgment, including at [4] and [7]. The Senior Commissioner’s reasons on the two issues, which were challenged as inadequate by the Council, were part of a broader discussion of the acceptability of the concept development application and the combined developments’ heritage impacts and needed to be assessed in that context. The Senior Commissioner’s discussion of the heritage listings and controls was common to both the demolition of the existing MRC and the approval of the envelope for the replacement residential flat building, including at [1], [9]-[17], [36]-[40] and [92]-[94] of the judgment.

29. As to the second context, Vision Land submitted that the Senior Commissioner, in finding that she preferred the evidence of Mr Davies over that of Mr Harper and in accepting the evidence of Mr Hill, was responding to the contentions, evidence and submissions of the parties at the hearing. Vision Land addressed first the Senior Commissioner’s finding that she preferred the evidence of Mr Davies over that of Mr Harper.

30. Vision Land noted that the Council had contended in its amended statement of facts and contentions filed on 31 January 2018 that the MRC had both local and State heritage significance, notwithstanding that it was not listed as a heritage item at local or State levels (see paragraphs 90-96 of the amended statement of facts and contentions). The Council explained why it contended that the MRC had heritage significance. The Council also asserted that the significance of the MRC had been acknowledged in the listings of the MRC in the National Trust Register and the Australian Institute of Architects (NSW Chapter) Register of Significant Buildings in NSW (paragraph 94).

31. The Senior Commissioner was evidently addressing these contentions of the Council in [93] of the judgment. The Senior Commissioner’s framing of the question for determining the significance of the MRC in [95] of the judgment, namely “whether there is sufficient heritage significance to warrant local listing”, is reflective of the Council’s contention. The Senior Commissioner acknowledged that the MRC could have heritage significance notwithstanding that it is not locally listed (at [95] of the judgment).

32. The Senior Commissioner’s summary of the competing evidence of Mr Davies and Mr Harper (at [97] and [98] respectively) drew on and was a fair summary of their written evidence (both their individual reports and joint expert report) and their oral evidence at the hearing. The Senior Commissioner’s preference for Mr Davies’ evidence over Mr Harper’s evidence because “it is more balanced and objective” was responsive to Vision Land’s cross examination of Mr Harper and its closing submissions.

33. In cross examination, Mr Harper accepted that, although he practised as an architect and had undertaken refurbishment works on significant buildings and had prepared conservation management plans and heritage impact statements, he would not describe himself as a heritage architect. He accepted that he was giving evidence not because he was a heritage architect, but because he has “a personal passion for Brutalist architecture” (Transcript, 27/02/18, p 124). Mr Harper accepted that he was “a long term member of the Institute of Architects Heritage Committee” (Transcript, 27/02/18, p 125). He wrote the listing for the MRC for the Australian Institute of Architects (NSW Chapter) Register of Significant Buildings in NSW. He was writing his PhD thesis on Brutalist architecture. He ran Facebook and Instagram accounts concerned with Brutalist architecture (Transcript, 27/02/18, p 125).

34. Mr Harper accepted that he was interviewed by the Sydney Morning Herald for a feature article on Brutalist architecture and was photographed outside the MRC. That article quoted Mr Harper as saying the MRC was his favourite example of Brutalist architecture in Sydney and that the “bold and heroic” building, formerly known as the Bidura Children’s Court, was under threat of demolition (Transcript, 27/02/19, p 126).

35. Mr Harper accepted that when he gave that interview to the Sydney Morning Herald journalist, he had been engaged by the Council to give expert evidence in this case. He accepted that he had read the Expert Witness Code of Conduct and knew that the Court is assisted by experts who are objective in their evidence.

36. Mr Harper was asked “that Brutalist architecture being something about which you are so enamoured, do you find it difficult to conceive of any example of Brutalist architecture that would be appropriate for demolition?”, to which Mr Harper replied “Yes, of course” (Transcript, 27/02/18, p 126).

37. Vision Land’s written submissions before the Senior Commissioner referred to the fact that the Australian Institute of Architects listing had been undertaken by Mr Harper (paragraph 91). Vision Land challenged the objectivity of Mr Harper. Vision Land noted that in the previous case heard by this court, the Council had called “Mr Stapleton (a well-renowned heritage expert) [who] did not advocate retention of the MRC but instead advocated for retention of two components of it, the stairwell and the auditorium” (paragraph 89).

38. However, the Council’s case on the appeal before the Senior Commissioner was advanced through a different expert, Mr Harper: “At best, the position of Mr Harper is one coincident with his personal (if not professional) interest in Brutalist architecture” (paragraph 94). Vision Land submitted:

“95. To the extent that Mr Harper’s evidence is to be regarded, it is to be regarded through the lens of an appreciation of him as an expert not so much in heritage, but as a fan of Brutalist architecture: see for example his statement of evidence, Exhibit 5, page 3, and his reference to undertaking research into Brutalist architecture for the purposes of a PhD at the University of Sydney. He also accepted in cross examination his comments for the purposes of a Sydney Morning Herald article on the weekend of 30 September 2017 as the MRC comprising ‘his favourite example of Brutalism in Sydney’: the article was not tendered but can be tendered upon request by a court.

96. Personal preference is one thing, and whilst Brutalist architecture and the MRC may be Mr Harper’s favourite, it nonetheless is relevant to consider the application for its demolition objectively.”

39. Vision Land’s oral submissions were to similar effect “that Mr Harper’s evidence is to be considered…not so much through the lens of him as a heritage expert but rather as a fan of Brutalist architecture” (Transcript, 12/04/18, p 279).

40. The Council responded orally to the criticism made of Mr Harper that because “he has a personal interest, he may be a fan” and that he does not “bring an objective eye to the question” (Transcript, 12/04/18, p 297). The Council submitted that the fact that an expert has a particular interest in a field “doesn’t mean that they don’t bring to the Court their opinion in accordance with their obligations to the Court” under the Expert Witness Code of Conduct (Transcript, 12/04/18, p 297).

41. Vision Land submitted that the Senior Commissioner’s reasons in [99] and [100] of the judgment might be in “short form but they are entirely commensurate with the evidence before the Court and the submissions made to the Court about this very thing” (Transcript, 23/03/19, p 43).

42. Vision Land submitted that, viewed in the context of the evidence and submissions concerning Mr Harper’s lack of objectivity, the Senior Commissioner’s reasons for preferring the expert assessment of Mr Davies over that of Mr Harper are adequate.

43. As to the third context, Vision Land submitted that the Senior Commissioner’s reasons for preferring Mr Davies’ evidence over that of Mr Harper need also to be read with the Senior Commissioner’s reason for rejecting as financially unviable Mr Harper’s adaptive reuse options. Mr Harper had proposed three adaptive reuse options for the MRC if it were to be retained. Mr Hill had evaluated these options and found them to be “not feasible or achievable or economically viable” (at [101] of the judgment and see [57] and [102] also).

44. The Senior Commissioner also found that Mr Harper’s adaptive reuse options would require “significant and extensive internal changes” to the MRC, which may have potential heritage impacts (at [102] of the judgment). Vision Land submitted that the Senior Commissioner’s finding rejecting Mr Harper’s evidence about adaptive reuse (in [101] and [102] particularly) provide further support for the Senior Commissioner’s finding in [99] and [100] of the judgment that Mr Harper’s evidence lacked balance and objectivity.

45. Vision Land next addressed the Senior Commissioner’s finding that she accepted the evidence of Mr Hill. Vision Land submitted that the Senior Commissioner’s reasons were responsive to the contentions, evidence and submissions made by the parties at the hearing. The Council had raised in its amended statement of facts and contentions that “it has not been adequately demonstrated why the MRC is not capable of retention or reuse contrary to cl 3.9.1(6)(a) of SDCP 2012.” The Council thereby put the adaptive reuse of the MRC in contention.

46. The Council adduced evidence from Mr Harper as to the adaptive reuse options for the MRC. Mr Harper, in his statement of evidence dated 20 December 2017, put the case for adaptive reuse of the MRC (Section 6 of the report). He suggested three reuse options: commercial offices with associated residential uses, primary school, and integrated living, ageing in place residences. Mr Harper noted the likely heritage impacts of these uses, the first two having minor to moderate adverse heritage impacts and the third having moderate to high adverse heritage impacts (p 51).

47. Mr Harper was cross examined on his suggested adaptive reuse options, including their adverse heritage impacts. Mr Harper accepted that any proposed development for reuse of the MRC that had a moderate adverse heritage impact would have a significant prospect of not being approved (Transcript, 27/02/18, pp 131-132). He accepted that each option involved “not insignificant additions to the built form contiguous with the MRC” (Transcript, 28/02/18, p 168). Mr Harper disagreed with the suggestion that these additions would affect the heritage significance of the MRC (Transcript, 28/02/18, p 169).

48. Mr Harper had said in his statement of evidence that, for the integrated living reuse option, “further design analysis is required enabling an appropriate yield outcome while mitigating heritage impact” (p 56). On cross examination on this statement about “appropriate yield outcome”, Mr Harper accepted that this was referring to the economic viability of the option (Transcript, 28/02/18, pp 167-168).

49. Vision Land engaged Mr Hill to undertake an options analysis of the various adaptive reuse schemes that had been suggested by people, including at a later date Mr Harper. Mr Hill’s statement of evidence dated 27 October 2017 concluded that: “Each of the schemes shows a significant development loss on the actual purchase price. Likewise the project IRRs are all negative and well below their target IRRs to be considered a viable scheme” (p 30). Mr Hill’s report was appended to the options analysis, both of which were tendered in evidence on 27 February 2018 (Exhibit G was the options analysis and Exhibit H was Mr Hill’s report). Mr Hill prepared a further report dated 27 February 2018 specifically addressing Mr Harper’s three adaptive reuse options, namely commercial offices with associated residential use, vertical primary school, and integrated living. Mr Hill concluded that none of these options were financially viable. Mr Hill’s further report was tendered on 28 February 2018 (as Exhibit S).

50. Vision Land noted that, although the Council had twice requested that Mr Hill be made available for cross examination, on both his original report and his further report, the Council elected not to cross examine Mr Hill.

51. Vision Land submitted that the first time the Council put in issue Mr Hill’s evidence was in closing submissions, although even then obliquely. The Council had submitted in its written submissions that: “The question of adaptive reuse is actually not a matter to detain the Court in light of the evidence given (although some observations are made below)” (paragraph 42). The section of the submissions headed “Economic analysis of adaptive reuse” commenced: “The question of adaptive reuse does not truly arise. But the following observations are made.” (paragraph 54). The Council then made the following observations:

“55. The Applicant has not provided evidence that the building is not capable of adaptive reuse. It has provided a report from Mr Hill, who is a land economist, as to the financial feasibility of adaptive reuse. This analysis relies wholly on the basis of the purchase price for the site, paid for by the Applicant. Planning or heritage significance is not determinative on an expected return on investment paid for by a particular investor.

56. Further, the purchase price on which the economic viability was assessed was based upon assumptions which were not correct and/or have since changed. This human floor space achievable was wrong (the assumed total GFA by the purchaser was 8706sqm whereas even the current proposal is 7056sqm). Bidura House has now been State listed. Steps have begun to list the MRC, its significance having been reconsidered.

57. An historic commercial decision cannot play a role in determining the appropriateness of a development in the present circumstances.”

52. Vision Land addressed the Council’s argument that the MRC could be reused in its written submissions (paragraphs 105-119). Vision Land referred to the evidence of Mr Hill analysing reuse schemes in the options analysis and Mr Harper’s three reuse options in Mr Hill’s further report. Vision Land noted that each of the schemes would involve a significant development loss on the project. Vision Land also submitted that “there can be no use of the MRC consistent with its design or present form” (paragraph 109) and that “anything that is done to the MRC will have a moderate significance” (paragraph 110). Vision Land submitted that Mr Harper’s reuse options are “patently unacceptable in the realm of the retention of something said to have sufficient heritage significance to be included on the local significance register. That is to retain it brings with the retention a consistent moderate negative impact upon the only residual component of it, its architectural form” (paragraph 112).

53. Vision Land also noted in oral submissions that the Council had sought to undermine Mr Hill’s analysis in closing submissions without any cross examination of Mr Hill (Transcript, 12/04/18, p 312).

54. Vision Land submitted that, viewed in the context of these contentions, evidence and submissions, the Senior Commissioner’s reasons in [101] and [102] for accepting Mr Hill’s evidence were adequate.

55. As to the third context, Vision Land submitted that the Senior Commissioner’s reasons in [101] and [102] of the judgment need to be read in the context of her earlier findings, including the lack of objectivity of Mr Harper’s evidence. The Senior Commissioner had earlier referred to the options analysis and the rejection of the second option for adaptive reuse as being not commercially viable (at [55]-[57] of the judgment). The Senior Commissioner had found that Mr Harper had authored the heritage listing of the MRC for the Australian Institute of Architects (NSW Chapter), was writing his PhD on Brutalist architecture and was a media advocate for Brutalist architecture. The Senior Commissioner’s finding that Mr Harper’s adaptive reuse options were not feasible or achievable or economically viable needs to be read in this context.

56. Vision Land submitted that the Senior Commissioner’s analysis of Mr Hill’s evidence did not infringe what was said in Keith v Gel at [127]. There was no contest between experts on the economic viability of the adaptive reuse options. Mr Harper did not give evidence as to whether his reuse options were or were not economically viable. Only Mr Hill gave that evidence. There was therefore no call for the Senior Commissioner to have to accept one witness over another or to give reasons for doing so. Vision Land submitted that there was nothing wrong with what the Senior Commissioner said in [101] and [102] of the judgment.

The reasons are not shown to be inadequate

57. I find that the Council has not established that the Senior Commissioner’s reasons on the three matters challenged by the Council are inadequate in law in any of the ways claimed.

58. At the outset, it is important to the note that this is not a case where there has been a failure to give reasons at all on the matters challenged but rather the allegation is that the reasons given on the matters challenged are inadequate in law. This involves an evaluation of “whether the reasons provided have reached a minimal acceptable level to constitute a proper exercise of judicial power”: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. What is the minimum acceptable level for the extent and content of the reasons “would depend on the particular case under consideration and the matters in issue”: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]; Keith v Gel at [110].

59. In this appeal, the Council focusses on two findings of the Senior Commissioner accepting the evidence of two expert witnesses and alleges that the Senior Commissioner’s reasons accepting their evidence are inadequate in law.

60. The first finding, in respect of which the Council alleged that the Senior Commissioner’s reasons were inadequate, is the finding of the Senior Commissioner preferring the evidence of Mr Davies over the evidence of Mr Harper on the issue of whether the MRC had heritage significance. The Senior Commissioner referred to the material evidence of Mr Davies and Mr Harper on this issue (in [96]-[98] of the judgment) and summarised the key points made by each expert. The Senior Commissioner recognised that each witness held competing positions: Mr Davies was of the opinion that the MRC did not have heritage significance and Mr Harper was of the opinion that the MRC did have heritage significance.

61. The Senior Commissioner recognised that she was “faced with evaluating these experts’ opinions” and deciding which to prefer (at [100] of the judgment). The method that the Senior Commissioner chose in order to evaluate the experts’ opinions was to decide which was “more balanced and objective” (at [99] of the judgment). This was a macro-evaluative approach involving accepting all of one expert’s opinion over that of the other expert. Other evaluative approaches were, of course, open, including a micro-evaluative approach of resolving each point of difference between the experts.

57. The Council gave the example of the rarity of the MRC as one point of difference between the experts. Mr Davies had opined that the MRC was not a rare example of the Brutalist style of architecture, unless one was considering it only within the class of buildings in the Court and justice system, which was the stance that Mr Harper took in saying that the MRC was “a rare and intact purpose built children’s court (and remand centre) in the Brutalist style”. The Senior Commissioner could have resolved this particular point of difference between the experts by explaining why she preferred Mr Davies opinion over Mr Harper’s opinion on this particular issue, but she was not required by the duty to give reasons to do so. The duty requiring the Senior Commissioner to give reasons for her final conclusion of fact that she preferred the evidence of Mr Davies over the evidence of Mr Harper did not require that she make an express finding in respect of every fact leading to, or relevant to, her final conclusion of fact or that she reason from one fact to the next fact along a chain of reasoning to that conclusion: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-273.

58. The Senior Commissioner was entitled to resolve the difference in opinion between the experts at a more general level by finding which expert’s evidence as a whole she preferred and then adopting that preferred expert’s evidence. This was the approach followed by the Senior Commissioner. The Senior Commissioner preferred and adopted the evidence of Mr Davies as a whole. The adoption of Mr Davies evidence as a whole carried with it the adoption of each particular opinion of Mr Davies, including his opinion on the particular issue of the rarity of the MRC as an example of Brutalist architecture. This overall approach of preferring one expert’s evidence over another expert’s evidence was legally open to the Senior Commissioner.

59. The Senior Commissioner gave reasons for preferring Mr Davies’ evidence over Mr Harper’s evidence, being that Mr Davies’ evidence was “more balanced and objective” than Mr Harper’s evidence. The Senior Commissioner explained why she considered that Mr Davies’ evidence was more balanced and objective than Mr Harper’s evidence. Mr Harper, the Senior Commissioner considered, was less balanced and objective because of his focus on and advocacy for Brutalist architecture generally and the MRC in particular. This focus and advocacy was demonstrated by Mr Harper undertaking the listing of the MRC on the Australian Institute of Architects (NSW Chapter) Register of Significant Buildings in NSW (at [93] of the judgment), undertaking research into Brutalist architecture for his PhD (at [100] of the judgment), being “a media advocate for the retention of this form of architecture (even after the commencement of this hearing)” (at [100] of the judgment) and advocating examples of adaptive reuse of the MRC that were “not feasible or achievable or economically viable” (at [101] of the judgment). The Senior Commissioner considered that “these matters in my opinion diminish his evidence for the retention of the MRC” (at [100] of the judgment).

60. It was open to the Senior Commissioner to prefer the evidence of one expert (Mr Davies) over the evidence of another expert (Mr Harper) on the basis that the former was more balanced and objective than the latter, and to do so for the reasons given by the Senior Commissioner. The matters identified by the Senior Commissioner in [93], [100] and [101] of the judgment were found to have diminished the evidence of Mr Harper, meaning the weight which the Senior Commissioner gave to the evidence of Mr Harper. The weight which a judicial decision maker will give to the evidence of a witness may not be capable of detailed rationalisation or formal and deductive reasoning: Soulemezis v Dudley (Holdings) Pty Ltd at 273-274. In this case, the matters identified by the Senior Commissioner as diminishing the weight to be given to Mr Harper’s evidence did explain why the Senior Commissioner found Mr Harper’s evidence to be less balanced and objective and hence why the Senior Commissioner preferred Mr Davies evidence to Mr Harper’s evidence.

61. Scrutiny of the adequacy of the reasons of the Senior Commissioner needs also to be undertaken in context. I accept and adopt Vision Land’s submissions as to the context in which the Senior Commissioner’s reasons for her finding that she preferred the evidence of Mr Davies to that of Mr Harper need to be viewed. In particular, the Senior Commissioner’s reasoning was responsive to the evidence of Mr Harper (including the cross examination of Mr Harper) and the submissions of Vision Land concerning Mr Harper not being a heritage architect but rather having a personal interest in the retention of the MRC and being a fan of Brutalist architecture. The Senior Commissioner’s reasons evidently show that she accepted these submissions. This served to achieve one of the rationales for giving reasons of indicating to the parties why the decision was made and enabling the losing party (the Council) to understand why it lost on this particular issue.

62. The adequacy of the reasons also needs to be assessed having regard to the nature of the appeal available to the parties from the Senior Commissioner’s decision. It is well settled that one of the rationales for requiring that reasons be adequate is to facilitate the losing party’s right of appeal: see, for example, Soulemezis v Dudley (Holdings) Pty Ltd at 259-260, 269-270 and 280-281. But rights of appeal differ, from full appeals on facts and law to narrow appeals on questions of law only. Here, the parties’ right of appeal under s 56A of the Court Act is against the decision or orders of the Senior Commissioner on a question of law. There is no appeal against the Senior Commissioner’s findings of fact, including the finding that the Senior Commissioner accepted the evidence of one expert over the evidence of another expert. As McHugh JA said in Soulemezis v Dudley (Holdings) Pty Ltd at 281:

“In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done.”

68. In this case, on an appeal under s 56A of the Court Act which is limited to a question of law, there could be no appeal against the Senior Commissioner’s final conclusion of fact that she preferred the evidence of Mr Davies over the evidence of Mr Harper or the particular finding of fact that the MRC did not have heritage significance. Those findings of fact were not dependent on the application of a legal standard. They therefore could be treated less elaborately in the Senior Commissioner’s reasons for judgment.

69. The second finding of fact for which the Council alleged the Senior Commissioner gave inadequate reasons, was the Senior Commissioner’s acceptance of the evidence of Mr Hill that adaptive reuse of the MRC was not economically viable. I reject the Council’s challenge to the adequacy of the Senior Commissioner’s reasons for accepting Mr Hill’s evidence. As Vision Land submitted, the Senior Commissioner’s reasons need to be viewed in the context of the contentions, evidence and submissions made by the parties. I accept and adopt Vision Land’s submissions in this regard.

70. The Council is also bound by its conduct of its case before the Senior Commissioner. As Mahoney JA said in Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385, “it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the Court below in a way which called for a reasoned consideration of them.”: see also Page v Parkes Shire Council (1991) 72 LGRA 97 at 103 and Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [54]-[55]. The Council did not call any evidence to contest Mr Hill’s evidence that Mr Harper’s adaptive reuse options were not economically viable. The Council elected not to cross examine Mr Hill. The Senior Commissioner was therefore accurate in saying that Mr Hill’s evidence “was not contradicted by any other expert” (at [102] of the judgment). The Council did not submit to the Senior Commissioner, as the Council now submits on the appeal, that the Senior Commissioner was under a duty to analyse Mr Hill’s evidence in the way suggested in Keith v Gel at [127]. The Council cannot therefore complain on appeal that the Senior Commissioner did not so analyse Mr Hill’s evidence in her reasons for judgment.

71. In any event, as Vision Land submitted, the requirement to analyse expert evidence suggested in Keith v Gel at [127] mostly arises where there is competing expert evidence, although unchallenged by cross examination. In such circumstances, the judicial decision maker is still required to make findings of fact on the issues to which the experts’ evidence is directed. As Beazley JA (as her Honour then was) said in Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 at [132]:

“This may and usually does involve the acceptance of one expert or group of experts over another, not on the basis of a demeanour finding, which is unavailable when none of the experts is cross-examined, but on the cogency of the evidence, given the issues addressed.”

72. In this case, however, there was no evidence contradicting Mr Hill’s evidence. There was no call for the Senior Commissioner to give reasons analysing Mr Hill’s unchallenged evidence.

73. The Council only challenged Mr Hill’s evidence on the basis that he had relied, for his economic analysis of Mr Harper’s reuse options, on the purchase price that had been paid by Vision Land for the site. That challenge was raised for the first time in the Council’s closing address. It had not been raised in the Council’s contentions or in the evidence at the hearing. As noted earlier, the Council did not cross examine Mr Hill to challenge his alleged reliance on the purchase price as the basis for his economic analysis of the reuse options. The Council’s challenge in closing address was therefore without any evidentiary foundation.

74. The Council had also prefaced its submission concerning Mr Hill’s economic analysis of adaptive reuse with the statement that “the question of adaptive reuse does not truly arise. But the following submissions are made” and earlier had said that “the question of adaptive reuse is actually not a matter to detain the Court in light of the evidence given (although some observations are made below).” The Council thereby indicated to the Senior Commissioner that its “observations” (and not submissions) need not “detain” the Senior Commissioner.

75. In these circumstances, the Senior Commissioner was not under a duty to expressly address the Council’s observations concerning Mr Hill’s evidence in her reasons for judgment.

76. The Council’s challenge to the adequacy of the reasons for the Senior Commissioner’s ultimate decision that the MRC should be demolished was dependent on the adequacy of reasons for the Senior Commissioner’s findings preferring the evidence of Mr Davies over the evidence of Mr Harper and accepting the evidence of Mr Hill. It follows from my rejection of the Council’s challenge to the adequacy of the reasons for these two findings of fact that the Council’s challenge to the adequacy of the reasons for the ultimate decision that the MRC should be demolished should also fail.

77. In answer to all three alleged inadequacies of reasons, it should be noted that even if the reasons for the impugned findings were to be inadequate, it does not follow that an appealable error on a question of law has occurred. As Meagher JA held in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444:

“It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.”

78. In this case, it cannot be said that the alleged inadequacies in the reasons for making the impugned findings are so significant as to constitute a miscarriage of justice. The reasons given by the Senior Commissioner for making the findings reflected the contentions, evidence and submissions of the parties, in particular the cross examination of Mr Harper, the uncontradicted evidence of Mr Hill and the submissions of Vision Land. By this evidence and these submissions, the Council was on notice that the Senior Commissioner might find in the way that she did in the judgment. There was no miscarriage of justice in her doing so, for the reasons she gave.

79. For these reasons, I reject grounds 1, 2 and 5 of the grounds of appeal that there was a failure to give reasons.

The alleged irrationality of the findings on evidence

80. The Council challenged the Senior Commissioner’s finding that she preferred the evidence of Mr Davies over the evidence of Mr Harper because it was “more balanced and objective” on the ground that it was “irrational, illogical and manifestly unreasonable”. The Council submitted that the reasons given by the Senior Commissioner for the finding were irrational, illogical or manifestly unreasonable. First, the fact that Mr Harper was “clearly an expert of Brutalist architecture” could not be a matter of criticism. Mr Harper was called as an expert witness precisely because he was an expert in the field of Brutalist architecture. Secondly, there can be no basis for criticism of an expert witness who is undertaking research into Brutalist architecture for the purposes of a PhD thesis. That merely furthers his expertise as an expert in the field. Thirdly, there can be no basis for criticism of an expert who is a “media advocate” for the retention of the form of architecture that is the subject of the appeal. The Council submitted that the Senior Commissioner did not explain why these three matters caused Mr Harper to lack objectivity.

81. The Council also challenged the Senior Commissioner’s finding that Mr Davies’ evidence was “more balanced and objective” than Mr Harper’s evidence. The Council submitted that it is irrational to make a finding that one expert is more objective than another, because “there are no degrees of objectivity” as a witness: the witness is either objective or not objective (Transcript, 26/03/19, pp 11-12).

82. Vision Land submitted that the three matters identified by the Senior Commissioner were really two aspects: first, the particular focus of Mr Harper’s architectural expertise was Brutalist architecture and, secondly, he was a media advocate for this architectural style. Vision Land submitted that the Senior Commissioner, in recording these two aspects, “was not so much ‘criticising’ Mr Harper for being an expert in Brutalist architecture (studying for his PhD in that subject matter) or for being a media advocate of the style, but was accepting the submission made by the Respondent that his evidence was ‘to be regarded through the lens of an appreciation of him as an expert not so much in heritage, but as a fan of Brutalist architecture’ and that while ‘personal preference is one thing, and whilst Brutalist architecture and the MRC, may be Mr Harper’s favourite’, it was nonetheless ‘relevant to consider that application for its demolition objectively’: see Respondent’s written submissions before the Senior Commissioner at [95]-[96]” (paragraph 33 of Respondent’s outline of submissions). Vision Land submitted that, having regard to these matters, the Senior Commissioner did not expressly find that Mr Harper lacked objectivity, but rather that Mr Davies was more objective. That was a finding available to the Senior Commissioner on the evidence and was responsive to Vision Land’s submissions. It was not irrational.

83. I reject the Council’s argument that the Senior Commissioner’s finding that the evidence of Mr Davies was more balanced and objective than the evidence of Mr Harper was irrational, illogical or manifestly unreasonable.

84. At the outset, a primary finding of fact by a Commissioner in determining an appeal in Class 1 of the Court’s jurisdiction is not reviewable on an appeal against the Commissioner’s decision under s 56A of the Court Act, which is limited to questions of law, on the ground that it is “irrational, illogical and manifestly unreasonable”. The question whether any evidence of a particular fact ought to be accepted in whole or part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law: McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156, Glass JA, with whom Samuels JA agreed, held when considering an appeal against a decision of the Workers Compensation Commission limited to a point of law:

“To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.

85. In Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334, Clarke JA, with whom Hope and McHugh JJA agreed, applied this reasoning to an appeal under s 56A of the Court Act, holding that:

“On the other hand perverse or unreasonable findings of fact do not constitute errors of law: Clark v Flanagan (1934) 52 CLR 416; McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426; Azzopardi v Tasman VEB Industries Ltd (1985) 4 NSWLR 139 at 155; Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 3 and 5. Even if the reasoning whereby a court or tribunal reached its conclusion of fact were demonstrably unsound this would not amount to an error of law: R v District Court; Ex parte White (1966) 116 CLR 644 at 654. It is also clear that questions of the weight, or relative significance, to be accorded to particular facts falls for consideration once it has been determined that different conclusions are reasonably open and are themselves questions of fact: Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR I at 4 per Samuels JA.”

86. Accordingly, even if the Senior Commissioner’s impugned findings of fact could be seen to be “irrational, illogical and manifestly unreasonable”, no error on a question of law would be involved.

87. In any event, however, the Council has not established that the impugned findings of fact were irrational, illogical and manifestly unreasonable. As Vision Land submitted, the Senior Commissioner’s finding was based on the evidence and the submissions of the parties. As I have earlier found, when dealing with the Council’s challenge to the adequacy of the reasons for the finding, the Senior Commissioner was explaining why she preferred the evidence of Mr Davies over that of Mr Harper. She found that the evidence of Mr Davies was “more balanced and objective” than the evidence of Mr Harper because the matters to which she referred at [93], [100] and [101] of the judgment diminished Mr Harper’s evidence for the retention of the MRC. Mr Harper argued for the retention of the MRC because he had undertaken the listing of the MRC for the Australian Institute of Architects (NSW Chapter) Register of Significant Buildings in NSW, he was an expert in Brutalist architecture presently undertaking his PhD into Brutalist architecture, he was a media advocate for the retention of this form of Brutalist architecture, and he advocated examples of adaptive reuse for the MRC that the Senior Commissioner found to be not feasible or achievable or economically viable. Those matters were capable of making Mr Harper’s evidence for the retention of the MRC less objective and diminishing the weight to be given to Mr Harper’s evidence.

88. The test is not whether the Senior Commissioner’s finding that Mr Davies’ evidence was more balanced and objective than Mr Harper’s evidence was unsound, but whether it was one not open as a matter of law to the Senior Commissioner: see, for example, Parramatta City Council v Pestell (1972) 128 CLR 305 at 323 and Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [56]-[63]. The Council’s submission that the Senior Commissioner’s finding was “irrational”, “illogical” or “manifestly unreasonable” was merely an emphatic way of saying that the finding, and the reasoning for the finding, were wrong, but this has no particular legal consequence: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40]. The Senior Commissioner’s finding, and her reasons for making the finding, cannot be categorised as not being open as a matter of law by reason of their irrationality.

89. I reject the Council’s submission that the Senior Commissioner’s finding was irrational, illogical or manifestly unreasonable because it was expressed by reference to a degree of objectivity: “more objective”. There is nothing irrational in saying that one expert’s evidence is more objective than another expert’s evidence.

90. For these reasons, I reject ground 3 of the grounds of appeal that the finding that Mr Harper was not balanced or objective was irrational, illogical or manifestly unreasonable.

The alleged denial of procedural fairness

91. The Council contended that the Senior Commissioner denied the Council procedural fairness by accepting the evidence of Mr Davies over the evidence of Mr Harper and accepting the evidence of Mr Hill (grounds 4 and 6).

92. As to the first finding, the Council submitted that the Senior Commissioner denied the Council procedural fairness by finding that Mr Harper lacked objectivity without that assertion having been put to Mr Harper or the Council being put on notice that the Senior Commissioner might so find. The Council submitted that if proceedings are to be determined by reference to matters outside the issues, then procedural fairness requires that the parties be put on notice that some additional issue is to be raised, citing Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 at [70]; Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 239 at [20]; Cavasinni Constructions Pty Ltd Fairfield City Council (2010) 173 LGERA 456; [2010] NSWLEC 65 at [39]; Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 at [31]. The Council submitted that the Senior Commissioner did not give notice that Mr Harper’s objectivity or lack of balance by reference to his expertise might be brought into question. As such, there was a failure to accord procedural fairness to the Council.

93. As to the second finding, the Council submitted that the Senior Commissioner denied the Council procedural fairness by failing to address the Council’s submission in relation to the evidence of Mr Hill. The Council had submitted that Mr Hill’s evidence was based on the purchase price paid for the site by Vision Land, but that the heritage significance of the MRC should not be determined on the expected return on investment paid for by a particular investor. The Senior Commissioner failed to address the Council’s submission and, by failing to do so, denied the Council procedural fairness.

94. Vision Land submitted that the Council was not denied procedural fairness in relation to either finding of the Senior Commissioner. As to the first finding, the Council was on notice that Vision Land challenged Mr Harper’s evidence as lacking objectivity. Vision Land referred to its cross examination of Mr Harper, summarised earlier. In the context of this evidence, the Council cannot complain that it was denied procedural fairness because “it was not at any time put to Mr Harper that he lacked objectivity”. Mr Harper’s objectivity was directly addressed in the cross examination of him. Vision Land submitted that the Council was clearly put on notice that Mr Harper’s objectivity and lack of balance was being challenged by Vision Land, not only by the cross examination of Mr Harper but also through Vision Land’s written and oral submissions to the Senior Commissioner. The Council responded to these submissions challenging Mr Harper’s objectivity in its oral submissions to the Senior Commissioner. In that context, Vision Land submitted that there was no further obligation on the Senior Commissioner to put the parties on notice that the issue of Mr Harper’s objectivity might be raised by the Senior Commissioner in her judgment.

95. As to the second finding, Vision Land reiterated its submissions concerning the Senior Commissioner’s acceptance of the evidence of Mr Hill. The Council did not raise any contention regarding Mr Hill’s evidence, call any evidence contradicting Mr Hill’s evidence or cross examine Mr Hill challenging his evidence, including his alleged reliance on the purchase price paid for the site by Vision Land. In the absence of doing any of these things, Vision Land submitted that the Council “cannot now be said to have been denied procedural fairness in circumstances where the Senior Commissioner did not expressly address this submission in her reasons for judgment.”

96. I find that the Senior Commissioner did not deny the Council procedural fairness in any of the ways claimed by the Council.

97. As to the first finding, I agree with Vision Land’s submission that the Council was on notice that Vision Land challenged Mr Harper’s evidence on the basis of its lack of objectivity. Vision Land’s cross examination of Mr Harper and its written and oral submissions made that plain. The Senior Commissioner understood Vision Land to be challenging Mr Harper’s evidence on this basis, as her reasons in [99] and [100] of the judgment evidence. The Senior Commissioner was under no obligation herself to give notice to the Council that she might accept Vision Land’s submission that Mr Harper’s evidence lacked objectivity.

98. The Senior Commissioner, in accepting Vision Land’s submission, was not determining the proceedings by reference to matters outside the issues joined between the parties. The Council had raised as a contention that the MRC had heritage significance. It adduced Mr Harper’s evidence in support of that contention. Vision Land contested the Council’s contention and adduced Mr Davies’ evidence in support of its position that the MRC did not have heritage significance. The Senior Commissioner, as she noted, was “faced with evaluating these experts’ opinions”. She resolved that contest by preferring the evidence of Mr Davies over the evidence of Mr Harper, as she found it to be more balanced and objective. In so doing, the Senior Commissioner determined the contention raised by the Council by reference to the evidence and submissions of the parties on that contention, not by reference to any matter outside of the contentions.

99. As to the second finding, the Senior Commissioner did not deny the Council procedural fairness by determining the Council’s contention that the MRC could be adaptively reused without expressly addressing the Council’s submission in relation to the evidence of Mr Hill. As I found when dealing with the Council’s argument that the Senior Commissioner did not give reasons on this Council’s submission, the Senior Commissioner was not obliged to address expressly this submission. The Council had not raised any contention challenging Mr Hill’s evidence, called any evidence contesting Mr Hill’s evidence or cross examined Mr Hill challenging his evidence, including his alleged reliance on the purchase price paid for the site by Vision Land. The Council also did not directly call on the Senior Commissioner in its closing submissions to resolve any question concerning Mr Hill’s evidence. Although the Council made “observations” about Mr Hill’s economic analysis of the adaptive reuse options being based on the purchase price for the site paid by Vision Land, the Council indicated that these observations need not “detain” the Court. The matters concerning Mr Hill’s evidence were not, therefore, “the subject of submissions made to the Court below in a way which called for a reasoned consideration of them” (Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd at 385).

100. In these circumstances, the Senior Commissioner did not deny the Council procedural fairness by not expressly addressing the observations it had made in its closing submissions in her reasons for judgment.

101. In answer to both claims of denial of procedural fairness, it is worth noting that no practical injustice has been shown to flow from the Senior Commissioner’s findings in the judgment. As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]:

“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concerns of the law is to avoid practical injustice.”

102. Here, no practical injustice has been shown. The Council lost no opportunity to advance its case. It called expert evidence from Mr Harper to advance its case that the MRC had heritage significance and that the MRC could be adaptively reused. It elected not to call expert evidence to contradict Mr Hill’s evidence that Mr Harper’s adaptive reuse options were not economically viable or to cross examine Mr Hill. The Council made such submissions as it chose in support of Mr Harper’s evidence and to Vision Land’s challenge to his evidence, and to make observations about Mr Hill’s evidence. There was no constraint by time or otherwise on the Council adducing such evidence and making such submissions as it wished. In these circumstances, it has not been shown that there was procedural unfairness.

103. I reject grounds 4 and 6 of the grounds of appeal that the Council was denial procedural fairness.

The alleged delay in giving judgment

104. The Council noted that the Senior Commissioner delivered judgment on 16 November 2018, almost 9 months after the completion of evidence on 28 February 2018 and 7 months after submissions were made on 12 April 2018.

105. The Council accepted that delay in delivering judgment, whilst administratively unacceptable, would not of itself justify an appeal on a question of law. The delay must affect the quality of decision making so as to cause the decision to miscarry on a question of law. The Council submitted the operative delay in this case of 9 months between the hearing of evidence and delivery of judgment was causative of four errors on questions of law.

106. First, the delay was destructive of the Senior Commissioner’s recollection and understanding of the evidence of Mr Harper, citing Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76 at [124]. This destruction was not diminished by submissions being made in April 2018. During submissions, the Senior Commissioner was merely reminded of the evidence of Mr Harper. The destruction of recollection of Mr Harper’s evidence adversely affected the Senior Commissioner’s finding that Mr Harper’s evidence lacked balance and objectivity. The Council submitted that a finding that a witness lacked objectivity is a finding “undoubtedly informed by a witness in the witness box.” The Council submitted that “where a decision maker reaches a decision in reliance on considerations of the credibility of a witness, significant delay undermines the acceptability of such assessment”, citing NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 at [85] and [86]. In this case, the Council submitted that the passage of time between the Senior Commissioner observing Mr Harper in the witness box and finding that his evidence lacked objectivity would have diminished the Senior Commissioner’s recollection of his evidence and the acceptability of her assessment of Mr Harper’s credibility.

107. Secondly, the Council submitted that the delay increased the pressure on the Senior Commissioner to publish her decision and that pressure could well have unconsciously affected the process of decision making and her finding that Mr Harper lacked balance and objectivity. The Council noted that on 20 August 2018, some four months after submissions had been heard and six months after the evidence had been completed, the Senior Commissioner advised the parties by letter of an intention to deliver judgment by the end of August 2018, “demonstrating that by November she was under significant pressure to deliver the judgment”. The Council submitted that “in these circumstances there is unreliability in accepting the finding of lack of objectivity of Mr Harper given the passage of time”.

108. Thirdly, the Council submitted that the delay in giving judgment affected the adequacy of the reasons given by the Senior Commissioner. After a significant delay, a more comprehensive statement and assessment of the evidence than would normally be required should have been provided by the Senior Commissioner in order to make manifest to the parties that the delay had not affected the decision: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs at [88] and Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189 at [71], [72].

109. Fourthly, the Council submitted that the delay caused procedural unfairness. Procedural unfairness can arise not only from a denial of an opportunity for a party to present a case, but also from denial of an opportunity of the decision maker to consider the party’s case. The Council referred to Gleeson CJ’s statement in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs at [9] that: “A procedure that depends significantly on the Tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal’s capacity to make such an assessment is impaired.” Here, the Council submitted that the delay in delivering judgment created a real and substantial risk that the Senior Commissioner’s capacity to assess Mr Harper’s evidence and evaluate the Council’s case was impaired, so that the Council was denied a fair hearing.

110. Vision Land contested that the Senior Commissioner’s delay in giving judgment gave rise to any error on a question of law.

111. First, the context in which delay occurs will affect any legal consequence that may flow: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs at [6]. Whether the delay has become inordinate, and affected the decision, depends on the nature and complexity of the case, the facts and issues, the purpose and nature of the proceedings, whether the applicant has contributed to the delay and any other relevant circumstances: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs at [78] and [79] and authorities therein cited.

112. Vision Land submitted that the finding impugned by the Council, that the Senior Commissioner preferred the evidence of Mr Davies over the evidence of Mr Harper because it was more balanced and objective, was a finding of fact. Even if the delay in giving judgment were to have affected that finding (which Vision Land contested), that wrong finding of fact was not reviewable on an appeal under s 56A of the Court Act limited to appellate scrutiny on questions of law.

113. Secondly, Vision Land submitted that the delay in giving judgment did not affect the Senior Commissioner’s finding that she preferred Mr Davies’ evidence over Mr Harper’s evidence. The Senior Commissioner’s reasons for the finding were not based on her observation of Mr Harper in the witness box or her assessment of the demeanour or credibility of Mr Harper. Vision Land submitted:

“She simply found that certain undisputed facts and matters that were put to Mr Harper in cross examination (and readily reviewable from the transcript of his evidence) – namely that as a student of Brutalist architecture and a media advocate for the style, he would find it difficult to say that any example of Brutalist architecture should be demolished – diminished the probative value of his evidence, such that Mr Davies’ evidence was “more objective”. The Senior Commissioner’s conclusions did not depend significantly on her own subjective assessment of Mr Harper’s demeanour. Rather, there were factual matters (uncontested by Mr Harper when they were put to him in cross examination) that supported this assessment. Those included that his adaptive reuse options involve significant and extensive internal changes which were not financially viable: J[102]. In that sense, the case is far removed from the circumstances giving rise to the jurisdictional error in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs.”

114. Vision Land disputed that the passage of nine months between when Mr Harper gave evidence and the judgment was delivered was “destructive of recollection and understanding”. The Court of Appeal’s decision in Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc did not so hold. At [124], Giles JA with whom Hodgson JA and Young CJ in Eq agreed, said:

“There are difficulties in determining that the passage of time is operative delay. A reserved judgment is commonly written with some lapse of time and the intervention of other matters. The assumption that the passage of ten months is destructive of recollection and understanding where the passage of (say) two months is not may not be justified; and with the advantage of transcript, contemporaneous documents and the capacity of a trained mind, why is the passage of ten months, albeit undesirable, necessarily destructive at all? There is not a factual enquiry, and judges are not rated according to retentive capacity and application to the evidence and issues. On one view, delay is a possible explanation for deficiency in decision-making or expression of the decision, the deficiency being otherwise found, and what matters is the quality of the decision-making assessed by regard to the issues, the evidence and the judge’s reasons.”

115. Vision Land submitted that, having regard to the basis on which the Senior Commissioner made her finding that she preferred Mr Davies’ evidence to Mr Harper’s evidence, the Council has not demonstrated that the passage of nine months between hearing Mr Harper’s evidence and delivering judgment was necessarily destructive of the Senior Commissioner’s assessment of Mr Harper’s evidence at all. The Senior Commissioner’s finding was not based on a subjective assessment of his demeanour and credibility in the witness box but rather on objective matters that he was a fan of Brutalist architecture and a media advocate (something he readily conceded in cross examination). There is therefore no unreliability in the Senior Commissioner’s finding arising from the passage of time.

116. Thirdly, Vision Land submitted that the inference suggested by the Council, that the Senior Commissioner was under significant pressure to deliver the judgment, cannot be drawn simply from the fact that the Senior Commissioner had indicated in her letter to the parties entitled “Update on the Judgment” dated 20 August 2018 that she expected to hand down judgment by the end of that month. Even if the inference could be drawn, it does not establish any unreliability in the Senior Commissioner’s finding that she preferred Mr Davies’ evidence over Mr Harper’s evidence.

117. Fourthly, Vision Land submitted that the delay in giving judgment did not cause procedural unfairness. The Senior Commissioner’s finding that she preferred Mr Davies’ evidence over Mr Harper’s evidence did not depend on her assessment of the demeanour and credibility of Mr Harper. This distinguishes her finding from the procedure of the Tribunal considered in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs. There, the High Court recognised that where the procedure before the Tribunal depended significantly upon the Tribunal’s assessment of individual witnesses, it might become an unfair procedure if, by reason of some default on the part of the Tribunal (such as undue delay in giving judgment), there was a real and substantial risk that the Tribunal’s capacity to make such an assessment was impaired: at [9]. Here, however, the Senior Commissioner’s finding did not depend significantly on any assessment of Mr Harper’s demeanour or credibility and the delay in giving judgment did not give rise to a real and substantial risk that the Senior Commissioner’s capacity to assess Mr Harper’s evidence might be impaired.

118. I find that the Council has not established that the delay in the Senior Commissioner delivering judgment caused the Senior Commissioner to err on a question of law.

119. As Gleeson CJ observed in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs at [5]:

“Undue delay in decision-making whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare.”

120. The legal consequences of delay are affected by the context in which the delay occurs: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs a [6], [78] and [79]. As Kirby J said in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs at [85]:

“The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, whilst regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly, this is explained by reference to the need to ensure that "the trier of fact can recall the testimony and the demeanor of the witnesses as well as the dynamics of the trial".”

121. In this case, the delay is in the giving of a judgment determining an appeal in Class 1 of the Court’s jurisdiction against the Council’s deemed refusal of a concept development application for the demolition of an existing building alleged by the Council to have heritage significance and the approval of an envelope for a replacement residential flat building. The Senior Commissioner, who heard the appeal, found that the existing building, the MRC, did not have heritage significance, but, even if it did, it was not economically viable to adaptively reuse the building. The Senior Commissioner therefore determined to grant consent to the demolition of the existing building.

122. In making both findings, the Senior Commissioner preferred the evidence of Mr Davies over the evidence of Mr Harper, because she found it to be more “balanced and objective”. That finding was based on objective facts that were not in dispute: Mr Harper had put forward and authored the listing of the MRC as a significant building for the Australian Institute of Architects (NSW Chapter) Register of Significant Buildings in NSW, Mr Harper was undertaking research on Brutalist architecture for his PhD, Mr Harper was a media advocate for the retention of this form of architecture and the MRC was his favourite example of Brutalist architecture, and Mr Harper advocated examples of adaptive reuse of the MRC that the Senior Commissioner found, on the uncontradicted evidence of Mr Hill, were not feasible, achievable or economically viable. None of these matters of fact depended on the Senior Commissioner’s observation of Mr Harper in the witness box or her assessment of his demeanour or credibility, or on a “resolution of competing versions of the facts and the differentiation of truth and falsehood”. In these circumstances, there is no basis for inferring that there was a real and substantial risk that the Senior Commissioner’s capacity to assess Mr Davies’ evidence as being more balanced and objective than Mr Harper’s evidence was impaired by the delay in delivering judgment.

123. The Council also has not established that the delay in giving judgment increased the pressure on the Senior Commissioner to publish the decision and unconsciously affected the Senior Commissioner’s fact finding and decision-making process. That inference cannot be drawn simply from the Senior Commissioner indicating to the parties, by her letter of 20 August 2018, that she intended to give judgment by the end of the month. The inference also cannot be drawn from the way in which the Senior Commissioner expressed her reasons for judgment.

124. As observed in Mount Lawley Pty Ltd v Western Australian Planning Commissions (2004) 29 WAR 273; [2004] WASCA 149 at [31]; Expectation Pty Ltd v PRD Realty Pty Ltd at [74] and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs at [87], extensive delay can sometimes tempt (or appear to tempt) a decision-maker to make a decision that seems to be the easiest decision to make. As Kirby J said in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs at [88]:

“Where there is a possibility that the foregoing might have occurred, it is incumbent on a court, reviewing the impugned decision in an appeal or on judicial review, to approach its task with vigilance. Where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments.”

125. In this case, however, the Senior Commissioner did not make her finding preferring the evidence of one witness over that of another in reliance upon considerations of the demeanour and credibility of the witnesses. In these circumstances, whatever pressure the delay in giving judgment might have exerted, such pressure is not shown to have affected the Senior Commissioner’s finding that she preferred Mr Davies’ evidence over Mr Harper’s evidence.

126. In any event, even if the delay in giving judgment could be seen to have impaired the Senior Commissioner’s finding that she preferred Mr Davies’ evidence over Mr Harper’s evidence, such impairment did not give rise to an error on a question of law.

127. First, even if the Senior Commissioner’s assessment of Mr Harper’s evidence was impaired, that would simply cause the Senior Commissioner’s finding to be factually wrong. However, making a wrong finding of fact, even a perverse or unreasonable finding of fact, does not constitute an error on a question of law: Randwick Municipal Council v Manousaki at 333-334. An appellate court on an appeal under s 56A of the Court Act cannot review a wrong finding of fact, whether on the ground that delay in giving judgment impaired that finding or otherwise.

128. Secondly, the delay in giving judgment did not cause the Senior Commissioner’s reasons for judgment to be inadequate in law. The statements in the authorities that, after a significant delay, a more comprehensive statement of the relevant evidence is required in order to demonstrate to the parties that the delay has not affected the decision, were made in the context where appellate review of the findings of fact made by a judicial or administrative decision maker in a court or tribunal below was available: see, for example Hadid v Redpath (2001) 35 MVR 152; [2001] NSWCA 416 at [34] and [53]; Expectation Pty Ltd v PRD Realty Pty Ltd at [71] and [72], and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs at [88]. In the case of an appeal under s 56A of the Court Act, however, the findings of fact of the Commissioner concerned are not reviewable as, even if they be wrong, they do not constitute an error on a question of law.

129. Furthermore, in this case, the Senior Commissioner did inform the parties of the reasons why she preferred the evidence of Mr Davies over the evidence of Mr Harper. Those reasons, I have found earlier, have not been shown to be inadequate in law. The delay in giving judgment did not create any obligation to give further reasons beyond the reasons already given, so as to cause the reasons that were given by the Senior Commissioner to be inadequate in law.

130. Thirdly, the delay in giving judgment did not deny the Council a fair hearing. The decision of the majority of the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs that the inordinate delay of the Tribunal in giving judgment denied the appellants a fair hearing depended on the finding that the delay had created a real and substantial risk that the Tribunal’s capacity to assess the appellants’ evidence and evaluate their claims was impaired. The Tribunal disabled itself from giving consideration to the appellants’ case by permitting “so much time to pass that it can no longer assess the evidence offered”: at [172] and see also [10] and [104]-[105].

131. In the present case, however, the delay in giving judgment did not disable the Senior Commissioner from being able to consider fairly the respective cases presented by the parties and, in particular, to assess the evidence of Mr Davies and Mr Harper. As I have reiterated, the reasons given by the Senior Commissioner for preferring the evidence of Mr Davies over the evidence of Mr Harper did not depend on the Senior Commissioner’s observation of the witnesses in the witness box or her assessment of their demeanour or credibility. The delay in giving judgment did not diminish her capacity to assess their evidence, and the parties’ submissions on their evidence, in the way that she did. The Senior Commissioner had the advantage of the transcript of the evidence and submissions given at the hearing and availed herself of it (as her reference to the transcript in [97] of her reasons shows). Accordingly, there was no denial of a fair hearing.

132. For these reasons, I reject ground 7 of the grounds for appeal that the delay in delivering judgment denied the Council procedural fairness.

Conclusion and orders

133. The Council has not established any of the grounds of appeal. The appeal should be dismissed.

134. The parties accepted that the usual order for costs on an appeal under s 56A of the Court Act should be made, namely that costs follow the event. Vision Land has been successful in defending the appeal brought by the Council and should be awarded its costs of the appeal.

135. The Court orders:

1. The appeal is dismissed.

2. The applicant is to pay the respondent’s costs of the appeal.

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Decision last updated: 01 May 2019