Design 23 Pty Limited v Sutherland Shire Council

[2003] NSWLEC 90

>

Reported Decision: 125 LGERA 380

Land and Environment Court

of New South Wales

CITATION:	Design 23 Pty Limited v Sutherland Shire Council [2003] NSWLEC 90
PARTIES:	APPLICANT: Design 23 Pty Limited ACN 051 965 032 RESPONDENT: Sutherland Shire Council
FILE NUMBER(S):	10275 of 2002
CORAM:	Lloyd J
KEY ISSUES:	Appeal :- section 56A Land and Environment Court Act 1979 - error of law - overly critical or pernickety approach inappropriate for commissioner decisions - reasons - adequacy of - savings clause
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 4, s 5(a)(i), s 5(a)(ii), s 79C Interpretation Act 1987 s 3, s 34(2)(e), s 35 Land and Environment Court Act 1979 s 38(2), s 56A State Environmental Planning Policy No. 1 - Development Standards cl 7 State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability cl 13, cl 13A(2)(c), cl 25(f)(i), cl 25(f)(iii), cl 26, cl 28(2)(a)
CASES CITED:	Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529; Athens v Randwick City Council [2002] NSWCA 83; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290; Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367; City Plan Services Ltd v Sydney City Council (1999) 105 LGERA 283; Clifford v Wyong Shire Council (1996) 89 LGERA 240; Coles v Woollahra Municipal Council (1986) 59 LGRA 133; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Director- General Department of Land and Water Conservation v Jackson And Ors [2003] NSWLEC 81; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94; Flevaris v Hurstville City Council [1998] NSWLEC 175; Hooker Corporation Pty Ltd v Hornsby Shire Council [1986] NSWLEC 10601; Martin & Spork Ltd v South Sydney Council (1999) 103 LGERA 213; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217; Mifsud v Campbell (1990) 21 NSWLR 725; North Sydney v Ligon 302 Pty Ltd (1995) 87 LGERA 435; Pettit v Dunkley [1971] 1 NSWLR 376; Randwick Municipal Council v Crawley (1986) 59 LGRA 277 ; Saif Ali v Sydney Mutual & Co (A Firm) [1980] AC 198; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451; Winten Property Group v North Sydney Council [2001] NSWLEC 46
DATES OF HEARING:	31/03/2003
DATE OF JUDGMENT:	05/05/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr M L Wright (barrister) SOLICITORS: N/A RESPONDENT: Ms S A Duggan (barrister) SOLICITORS: Mr J M Reilly Principal Environmental Lawyer Sutherland Shire Council

JUDGMENT:

- 20 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10275 of 2002
Lloyd J
5 May 2003

DESIGN 23 PTY LIMITED

Applicant
v

SUTHERLAND SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1 This is an appeal under s 56A of the Land and Environment Court Act 1979 by the respondent, Sutherland Shire Council (“the council”), against a decision of Commissioner Hoffman, such an appeal being limited to a question of law. The applicant had appealed against the council’s refusal of a development application for housing for older people or people with a disability permitted by State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability (“SEPP No. 5”). The Commissioner allowed the appeal and granted development consent subject to conditions.

2 It is common ground that the proposed development is permissible only if it is able to meet the development standards specified in SEPP No. 5. It is also common ground that the proposed development does not meet all those development standards. Accordingly, the applicant relied upon the power of the consent authority under State Environmental Planning Policy No. 1 – Development Standards (“SEPP No. 1”) to grant consent to the development application notwithstanding the development standards to which objection was made. The Commissioner found that the relevant development standards were unreasonable and unnecessary in the circumstances of the case and, as noted above, granted consent to the development application.

3 The council relies upon four grounds in this appeal which, it is said, amount to errors of law:

The Commissioner erred in law in that he:
1. Applied the wrong test or asked himself the wrong question in respect of his determination of the SEPP 1 objection as to:
(a) height;
(b) number of storeys; and
(c) the frontage of the allotment.
2. (a) Applied the wrong construction to clause 13A(2)(c) of SEPP 5 in finding that a SEPP 1 objection was not required in respect to the non compliance of the proposal with that clause.
(b) Further or in the alternative to sub paragraph (a) hereof the Commissioner applied the wrong test or asked himself the wrong question in respect of the SEPP 1 objection to clause 13A(2)(c) of SEPP 5.
3. Failed to make any determination as to the dispute between the parties with respect to the adequacy and/or appropriateness of the footpath access along Tara Street.
4. (a) Failed to take into account a relevant consideration, namely the exemption from SEPP 5 obtained in respect to the Sutherland Local Government Area.
(b) Further or in the alternative to sub paragraph (a) he applied the wrong test to the consideration arising from the said exemption.
A preliminary ground of appeal

4 In addition to the grounds of appeal set out above, counsel for the council, Ms S A Duggan, advanced a further criticism of the Commissioner’s decision. As I understand it, the submission is that the Commissioner’s consideration of the application of SEPP No. 1 to the proposed development should have preceded his consideration of the merit assessment: that is, before the Commissioner could lawfully embark on a merit assessment of the development application he was required by law to form the opinions called for by SEPP No. 1. Reliance was placed on the judgment of Stein JA (Mason P and Handley JA concurring) in Currey v Sutherland Shire Council (1998) 100 LGERA 365. It is convenient to consider this submission at the outset.

5 In Currey, the council had granted a development consent for a subdivision of land. Section 91(2) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) provided:

Notwithstanding subsection (1), the consent authority shall refuse an application where the development referred to therein, being the subdivision of land, would if carried out, result in a contravention of an environmental planning instrument or of this Act, whether arising in relation to that or any other development.

6 Clause 19 of the Sutherland Local Environmental Plan 1993 was entitled “Foreshore Building lines”. Clause 19(3) provided that a person must not erect a building or carry out a work on land between a foreshore building line and the tidal water in respect of which the line is fixed. Clause 19(5) provided:

(5) The council must not consent to development on an allotment of land having a foreshore building line, unless it is satisfied that the following buildings or works (if any) will be removed before, or within a reasonable time after, the development is carried out:
a) any building or work on the allotment between the line and the present mean high water mark, not being a building or work specified in subclause (4), or
b) any building or work below the present mean high water mark, being a building or work on the allotment or on land adjacent to the allotment which is in the same ownership as the allotment or to which the owner or occupier of the allotment has some form of occupancy rights.

7 Clause 19(6) of the Sutherland Local Environmental plan 1993 provided:

(6) However, subclause (5) does not apply to a building or work if the council is satisfied that requiring removal of the building or work:
(a) would be inconsistent with any of the objectives of this clause;
(b) is not necessary to achieve the objectives of this clause; or
(c) is unreasonable or unnecessary in the circumstances of the case, having regard to the provisions of any relevant development control plan.

8 One of the proposed lots in that case had a foreshore building line. Between that line and the mean high water mark was an existing two-storey boat shed.

9 It can thus be seen that cl 19(5) of the Sutherland Local Environmental Plan 1993 contained a prohibition on development on land having a foreshore building line unless the council was satisfied that the two-storey boat shed would be removed. Clause 19(6), however, contained a proviso that cl 19(5) did not apply if the council was satisfied that requiring removal of the boat shed would be inconsistent with or was not necessary to achieve, the objectives of cl 19; or alternatively, that it was unreasonable or unnecessary to remove the building having regard to any relevant development control plan.

10 It was in these circumstances that Stein JA said (at 372 and 374) that satisfaction with the criteria in cl 19(5) and 19(6) comes before the weighing of the merit considerations under s 90 (now s 79C) of the EP&A Act. Stein JA explained his reason as follows (at 374): “Clause 19(5) is a prohibition on certain development within the foreshore building line unless the council is satisfied that the offending building will be removed.” Stein JA relied upon on an earlier decision of his own in Clifford v Wyong Shire Council (1996) 89 LGERA 240, in which the relevant planning instrument contained a height control, which could be varied if the council was satisfied of certain criteria. In that case his Honour said (at 249): “This, it must be stressed, is a separate consideration from the s 90 [of the EP&A Act] merit matters because cl 14(3) [the height control] concerns the permissibility of the proposal.” His Honour also said (at 250): “Again, it must be emphasised that cl 14(3) requires separate consideration and satisfaction from the merit considerations, which only come into play if cl 14(3) is satisfied.”

11 I turn now to the Commissioner’s decision. The decision commences with a description of the locality, the zoning and the site; then there follows a description of the proposal (pp 1 to 6 [1] to [26] of the Commissioner’s decision). The issues are then set out (pp 6 to 8 [27]). Then follows a summary of the evidence (pp 9 to 26 [28] to [137]). The conclusions follow, including consideration of the objections under SEPP No. 1 (pp 27 to 31 [138] to [153]). Finally there is a discussion of the proposed conditions of consent (pp 31 to 34 [154] to [179]).

12 Ms Duggan’s attack focuses on the way in which the Commissioner has set out his conclusions, which occupy some five pages (pp 27 to 31 [138] to [153]). The Commissioner commences this section of his decision by making some general conclusions (pp 27 and 28 [138] to [150]), including (inter alia) the following: “the proposal is a small development on a large lot”; “the internal layout of the building is very suitable for frail and/or disabled persons”; “the council’s planning instrument allows only detached dwellings and similar residential structures in the zone”; although SEPP No. 5 allows development that will look different to its neighbours, there needs to be an assessment on merit and “compliances”; “the area has good access to community facilities”; “the council’s architectural advisory panel supported the proposal”; neighbours will have their view corridors widened and will be presented with a building of less visual height than some of the neighbours; and the building follows the topography by stepping down the site, thereby reducing its visibility.

13 The Commissioner next sets out his considerations of the specific objections under SEPP No.1 to four development standards in SEPP No. 5 and reaches the conclusion that in each case it could be unreasonable and unnecessary to require compliance with these standards (pp 28 and 29 [151]). The Commissioner’s findings and conclusions here are the subject of particular criticism and are grounds 1 and 2 of this appeal.

14 The Commissioner next gives detailed consideration to a number of aspects of the design of the development, including the impact upon neighbours such as privacy, overlooking and overshadowing; the means of access for both vehicles and pedestrians; landscaping; and drainage and services (pp 30 and 31 [153]).

15 The objections to the development standards in SEPP No. 5 relate to the height control, the number of storeys, the site frontage, and wheelchair access to common areas. It seems to me that the first three of those controls cannot be considered in isolation and require a consideration of the setting of the proposed development, the impact upon the neighbouring properties, the appearance of the development, and similar considerations. That is, it cannot be said that these are irrelevant considerations in determining at least three of the four objections. Those objections must be considered in their context.

16 Moreover, an objection under SEPP No. 1 requires a consideration of the aims of the Policy (cl 7) which in turn requires a consideration of the objects specified in s 5(a)(i) and (ii) of the EP&A Act (cl 3 of the SEPP No. 5). This in turn requires consideration of many of the matters referred to on pp 27 and 28 of the Commissioner’s decision noted in par [12] above. That is, a consideration of the specific objections requires the Commissioner to have general regard to the matters which he describes on the first two pages of his conclusions. Thus, the Commissioner’s consideration of those matters may be seen to be part of his consideration of the objections under SEPP No. 1. It follows that I am not persuaded by Ms Duggan’s criticism of this aspect of the Commissioner’s decision.

17 It has been long settled that a “fine-tooth comb” approach should not be employed when examining decisions of technical commissioners for errors of law (Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138, Randwick Municipal Council v Crawley (1986) 59 LGRA 277 at 283, Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368). Moreover, it would be wrong for the court on appeal to examine the decision as if it were written by a lawyer (Brimbella, at 368, per Priestley JA, Kirby P and McHugh JA agreeing, Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 98, per Handley JA). In North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435, Kirby P (at 442) warned against examining reasons in an overly critical or pernickety way. In Brimbella Kirby P (McHugh JA concurring) said (at 368):

Secondly, I believe that it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved.
...
Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this Court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into proper account the composition of the tribunal, as it has been created by the parliament.

18 The Court has repeatedly re-stated these principles in almost every appeal from a commissioner’s decision. Yet in almost every such appeal – and the present appeal is no exception – these principles are ignored, and counsel for the appellant subjects almost every phrase and every word used by the commissioner to close examination, scrutiny and analysis in an attempt to expose some slip or error. This is precisely what should not be done. I have thus found it again necessary to set out the relevant principles which apply to appeals from the decisions of technical commissioners, because those principles are repeatedly and persistently ignored by appellants, as demonstrated by the present appeal.

19 The application of these principles to the present case reinforces the conclusion to which I have come in relation to Ms Duggan’s submission discussed above. And it is with these principles in mind I turn to the other grounds of appeal.

Ground 1: Assessment of objections under SEPP No. 1

20 Both parties agree that in considering the application of SEPP No. 1 to a development standard the following principles apply: it is not sufficient merely to point to an absence of environmental harm to found an objection; it is not to be used as a means to effect general planning changes; it is necessary to identify the objectives of the relevant development standard and then consider whether in the light of such objectives it is unreasonable or unnecessary to apply the standard; and it must be assumed that the development standard has a planning purpose (Hooker Corporation Pty Ltd v Hornsby Shire Council , NSWLEC, Cripps J, 2 June 1986, unreported, Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217).

21 The parties also agree that the application of SEPP No.1 requires answers to the following questions: (i) is the planning control in question a development standard?; (ii) what is the underlying object or purpose of the standard?; (iii) is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EP&A Act?; (iv) is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?; (v) is the objection well founded? (Winten Property Group v North Sydney Council [2001] NSWLEC 46 at [26]). Ms Duggan relies, in particular, on an alleged failure on the part of the Commissioner to answer the fourth question. Reliance is also placed on the following statement made in Winten: “In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case”. This is a reference to the following statement by Cripps J in Hooker Corporation (at 6): “To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case.” Stating the question in the converse way is a good way of testing the answer to the question, but a failure to do so in that way does not amount to an error of law.

Height

22 The first ground of appeal is about the development standards in SEPP No. 5 relating to height, number of storeys and site frontage. Clause 13 of SEPP No. 5 is as follows:

13 Development standards—building height and street frontage
(1) General A consent authority must not consent to a development application made pursuant to this Part unless it complies with the standards specified in this clause.
(2) Height in zones where residential flat buildings are not permitted If the development is proposed in a residential zone where residential flat buildings are not permitted:
(a) the height of all buildings in the proposed development must be 8 metres or less, and
(b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height.
(3) Site frontage The site frontage must be at least 15 metres wide.

23 I return to the Commissioner’s decision. After having set out his consideration of the matters noted in par [12] above, the Commissioner turned his attention to each of the development standards seriatim. As to height, the Commissioner states (in par [151] of his decision):

· In regard to the height limit, the evidence contained in exhibit 25 as modified by Mr O’Dowd is accurate, and shows the extent of height exceedance is restricted to a very small part of unit 3 and the lift lobby. The objectives of the EP &A Act and the purpose of the height control being to minimise visual impact to a reasonable extent are not diminished by this small exceedance and in this case it is unnecessary and unreasonable to require compliance.

24 It is submitted by Ms Duggan, not only in relation to the Commissioner’s consideration of the height control, but also in relation to his consideration of each matter forming a ground of appeal, that there has been a failure in his duty to give reasons for his conclusion. (Reliance was placed on Martin & Spork Ltd v South Sydney City (1999) 103 LGERA 213, City Plan Services Ltd v Sydney City Council (1999) 105 LGERA 283, Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451, and Winten.) It is submitted that nowhere in the Commissioner’s decision is there set out the basis on which he forms the conclusions that he reached.

25 The cases relied upon by Ms Duggan are examples of settled authority that there is a judicial duty to state the ground or grounds upon which a decision rests, and that a failure to do so amounts to an error of law (see also Pettitt v Dunkley [1971] 1 NSWLR 376 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, both being decisions of the Court of Appeal). The duty extends to findings on any issue which is critical to the case (Mifsud v Campbell (1990) 21 NSWLR 725, North Sydney City Council v Ligon 302 Pty Ltd at 442).

26 The requirement to give reasons does not require a tedious examination of the detailed evidence or a minute explanation of every step in the reasoning process that leads to the conclusion (Soulemezis at 259). In Athens v Randwick City Council [2002] NSWCA 83, Giles JA (Handley and Beazley JJA concurring) said at [16]:

What is sufficient to fulfil the duty, however, depends on the circumstances. The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning …

27 The reasons need not be lengthy or elaborate (Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 433). It is also settled that the duty of a judge to disclose reasons for a decision is more onerous than that imposed on a lay commissioner (Brimbella Pty Ltd v Mosman Municipal Council at 368, Flevaris v Hurstville City Council NSWLEC, 7 August 1998, unreported at [10], Martin & Spork Pty Ltd v Sydney City Council at 216 [16]). I have set out in par [17] above the caution that decisions of technical commissioners should not be examined as if they were written by lawyers and that a “fine-tooth comb” approach should be avoided when examining such decisions for errors of law.

28 In relation to Commissioner Hoffman’s consideration of height, I understand Ms Duggan’s submission to be that the discussion which I have set out in par [23] above represents the sole consideration of the SEPP No. 1 objection to the height control. I have noted, however, the Commissioner’s conclusions which I have summarised in par [12] above. These include a relatively extensive discussion of, and the assessment of, the impact of the proposed building’s height and number of storeys (at pars [146] to [150] of the Commissioner’s decision). That is, the assessment of both height and storeys is not confined to the consideration in par [151] of the Commissioner’s decision, which must be read in the light of the earlier consideration thereof in pars [146] to [150].

29 As to the tests posed in Winten, it is not suggested that the Commissioner erred in failing to determine whether the controls in cl 13 of SEPP No. 5 are development standards. It seems to have been accepted by the parties that this was so. The Commissioner has identified the underlying object or purpose of the development standard. It is also clear that the Commissioner was of the view that compliance with the control was consistent with the aims of the Policy including the objects specified in s 5(a)(i) and (ii) of the EP&A Act, as appears from the substance of his discussion in pars [138] to [150] of his decision. The real criticism advanced by Ms Duggan is said to be the Commissioner’s failure to consider and apply the fourth question identified in Winten: that is, a failure to see whether a development which complies with the development standard is unreasonable or unnecessary.

30 It is to be noted that, after referring to the objectives of the height control, the Commissioner states that such objectives “are not diminished by this small exceedence and in this case it is unnecessary and unreasonable to require compliance”.

31 The fourth question posed in Winten is: “is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?” As noted above, in Winten the following statement also appears: “In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case”. As I have said, this is a reference to the statement by Cripps J in Hooker as follows: “To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case”.

32 In the present case the Commissioner did not pose the question of whether a development which complies with the development standard is unreasonable or unnecessary. If the question had been posed in that form and had then been expressly answered then there would have been no room for doubt that the fourth question in Winten had been considered, and it would have been better if the Commissioner had done so. In stating his finding in the converse way, however, the Commissioner did not fall into legal error. The Commissioner was simply stating the finding required by the fourth question in another way. To repeat, as Cripps J said in Hooker Corporation: “…it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case”. This is precisely what the Commissioner found. To adopt the language of Pearlman J in Martin & Spork in upholding a decision of the then Senior Commissioner: “the language used by the [Senior] Commissioner is cryptic, and there is no doubt that his reasoning could have been better articulated”. As long as the Commissioner’s reasoning and conclusions are disclosed, there is no error of law. I do not think that any error of law in the present case is demonstrated. The criticism of the Commissioner’s decision amounts to an impermissible “fine-tooth comb” or pernickety approach, contrary to the authorities to which I have referred.

Storeys

33 The following passage appears in par [151] of the Commissioner’s decision:

· In regard to the number of storeys it seems to the Court that the only location that a third level can be discerned is on the western elevation in the vicinity of the foyer entrance doors. The entry itself is recessed into the building approximately 6 m from the external wall line, and adjacent a high masonry boundary wall on the driveway. Admittedly directly above that is the point of unit 3, which slightly exceeds the 8 m height limit. However the exceedance would not be perceptible to the ordinary observer and the foyer entry could be seen from very few locations due to the high wall on the west side of the driveway. On the eastern elevation the basement mechanical room is underground and the height of the wall above ground level is about 2 m below the height limit. In this case the objectives of the E P&A Act 1979 and the purposes of the storey control to limit building bulk and visual impact are not offended by the non-compliance. It would be unreasonable and unnecessary to apply the statutory standard strictly.

34 In relation to the objection under SEPP No. 1 involving the proposed number of storeys Ms Duggan submits that the Commissioner has fallen into the same error as with the breach of the height control, discussed above.

35 I have noted that the Commissioner’s conclusions include a relatively extensive discussion and assessment of the impact of the proposed building’s height and number of storeys (par [12] and [28] above). This discussion precedes to what is set out in par [33] above. Again, these considerations must be seen as part of the context of the Commissioner’s consideration of the objection to the control governing the number of storeys. This includes the Commissioner’s observations, inter alia, that the roof creates less visual height than other buildings in the area, that the building follows the topography of the site by the stepping of the building, that “the proposal would blend in to an acceptable extent”, and that the proposal will “merge to an acceptable extent with the surrounding large houses”. (As noted above in par [28], those conclusions are equally applicable to the Commissioner’s consideration of the height control and form part of the context of that consideration also.) To those conclusions must be added those which are set out in par [33] above.

36 The Commissioner has thus considered the underlying object or purpose of the development standard and the objectives of the EP&A Act. He found (it would seem from the reasons earlier given) that they are not offended by the non-compliance, and concludes by finding that it would be unreasonable and unnecessary to apply the standard strictly. As with the consideration of the height control, and avoiding a reading of the Commissioner’s reasons in an overly critical or pernickety way, the reasons satisfy the requirements for reasons described in Soulemezis, Athens and Beale. Although the reasons may be criticized as being perhaps inelegant and cursory, there is no error of law.

Frontage

37 The following passage appears, also in par [151] of the Commissioner’s decision:

· In regard to the frontage of the allotment, the Court was taken to the Interpretation Act 1987 s. 34 and to test cases: Asset Based Securities Pty Ltd Vs Hornsby 2001 NSW LEC 276 Talbot J paragraphs 5 and 29, also, MoDog Pty Ltd Vs Baulkham Hills 2000 NSW LEC 180 Pearlman CJ. The purpose of requiring a 15 m minimum street frontage in SEPP 5 is not stated. In exhibit DD the applicant had a copy of the then Department of Urban Affairs and Planning guide to SEPP 5 indicating the principal purpose of setting the frontage standard was to avoid “Gunbarrel” developments. The Court has concluded that the underlying purpose of the frontage requirement was to avoid Gunbarrel developments and this proposal is not in that category.

In view of the main body of the site having dimensions of about 35m by 70 m, there is ample space for the development and application of the street frontage standard of 15m is neither reasonable nor necessary. The objects of the EP&AA [Environmental Planning and Assessment Act] and the applicable objectives of the Zone 2(E1) under SEPP1, being met.

38 Ms Duggan again submits that the Commissioner has fallen into the same error in his consideration of the frontage control as with the height and storeys controls, and for the same reasons. I do not agree, for the same reasons that apply to the consideration of the height and storeys controls. In particular, the Commissioner had regard to the underlying object or purpose of the development standard, namely, to avoid “Gunbarrel” developments; the Commissioner found that the proposed development is not in that category; and the Commissioner expressly referred to the objects of the EP&A Act and the relevant zone.

39 Ms Duggan further submits, however, that the Commissioner impermissibly took into account two irrelevant considerations, namely, the explanatory notes or guide to SEPP No. 5 (from which the Commissioner derived the principal purpose of the frontage control) and the objectives of the relevant zone. As to the former, Ms Duggan relies upon s 34(2)(e) of the Interpretation Act 1987, which allows the use of extrinsic material in the interpretation of acts and statutory rules. It is submitted that since an environmental planning instrument is neither an act nor statutory rule then the Commissioner, in considering the explanatory note or guide to SEPP No. 5, took into account an irrelevant consideration.

40 I am unable to agree with the submission. As was pointed out by Mr M L Wright, appearing for the applicant, the Court is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits (s 38(2) of the Land and Environment Court Act). This is another enabling provision, apart from s 34 of the Interpretation Act, which enables the Commissioner to do precisely what he did. Neither do I regard the objectives of the zone as necessarily irrelevant: a consideration of the objectives of the EP&A Act include “the promotion and co-ordination of the orderly and economic use and development of land”, which in turn can include in an appropriate case a consideration of the objectives of the relevant zone.

41 Ms Duggan also submits that the Commissioner failed to take into account the fact that the driveway was a shared driveway “with all the consequential difficulties he observed in accessing that driveway”. As I understand it, the access width for the subject property is 3.05 metres, but the property also has the benefit of a right-of-way over the adjoining property three metres wide, giving a total width for access purposes of 6.05 metres. The difficulties to which Ms Duggan refers were said to be identified in the evidence of Ms M D Laidlaw, a consultant town planner. Evidence to the contrary, however, was given by Mr P G Friedmann, the applicant’s consulting surveyor. It seems reasonably clear, as submitted by Mr Wright, that the Commissioner accepted the evidence of Mr Friedmann. In any event, it seems to me that this issue raises a question of fact rather than a question of law.

Ground 2: cl 13A(c) of SEPP No. 5

42 Clause 13A of SEPP No. 5 relevantly states:

13A Development standards—access and useability
(1) General A consent authority must not consent to a development application made pursuant to this Part unless it complies with the standards specified in this clause.
(2) Siting The standards are:
….
(c) common areas : access must be provided so that a person using a wheelchair can use common areas and common facilities associated with the development, and

43 It seems to be common ground that this provision is a development standard. The definition of “development standards” (s 4 of the EP&A Act) includes: …“(m) the provision of services, facilities and amenities demanded by development”. The matters in cl 13A(2)(c) are the provision of facilities and amenities demanded by the development. Moreover, the heading to cl 13A implies that the matters to which it refers are development standards. Section 35 of the Interpretation Act applies to an act or an instrument. An instrument is an instrument made under an act (s 3). SEPP No. 5 is an instrument made under the EP&A Act. The heading to a provision of an act or instrument is taken to be part of the Act or instrument (s 35(3) of the Interpretation Act). In this case the words “Development standards – access and useability” in the heading to cl 13A may be taken to indicate that sub-cl (2)(c), in particular, is a development standard.

44 In his consideration of this sub-clause the Commissioner said that this sub-clause is associated with cl 25(f)(iii). Clause 25 states:

25 Design of residential development
Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles:
….
f) Accessibility: The proposed development should, where appropriate:
…
(iii) where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site.
…

45 The Commissioner said that the two provisions appear to be about the same thing: that cl 13A(2)(c) does not specify that all common areas must have wheelchair access; and that the objection under SEPP No. 1 was not necessary in the present case (even though wheelchair access was not available to all common areas). The Commissioner nevertheless went on to say that if this conclusion is found to be incorrect then an objection must be considered, which he then proceeded to consider.

46 A short reference to the facts is necessary. I understand that the site of the proposed development is steeply sloping. Access to the garden and landscaped area on the low side of the building is achieved by a combined stairway and wheelchair lift and by a structure similar to a jetty elevated on piers to serve as an observation deck over the landscaped area and communal open space. As I understand it, physical access by wheelchair cannot be provided to the whole of the landscaped area and communal open space. Neither does it seem to me from the plans that physical pedestrian access can be provided to the whole of the landscaped area. Some parts of the landscaped common area are not designed to be physically accessible, such landscaping being provided as a visual amenity. In particular, wheelchair access cannot be provided down the somewhat steep incline to the Georges River to which the property has a frontage.

47 Ms Duggan submits, however, that cl 13A(2)(c) requires that every part of the landscaped common area must be accessible. I do not agree. The sub-clause does not state that all common areas and all common facilities must be provided with wheelchair access. Moreover, such provisions must be read in a common sense and practical way. Ms Duggan’s submission, if correct, could lead to absurd consequences: for example, it would mean that landscaping by way of visual amenity, such as rockeries or ornamental ponds or the like could not be done because such areas, self-evidently, could not be accessed at all.

48 Ms Duggan further submits that the Commissioner erred insofar as he sought to read down cl 13A(2)(c) by reference to cl 25(f)(iii): the latter does not deal with the same subject matter as the former. According to the submission, cl 25 of SEPP No. 5 deals with the issue of one continuous accessible path of travel, being a design consideration, rather than the ability of a wheelchair-bound person to use the facilities, to which cl 13A(2)(c) is directed.

49 Again I cannot agree with the submission. Clause 25(f)(iii) is about access to “all buildings, facilities and open spaces within the site”. These are the same kinds of things to which cl 13A(2)(c) refers, namely “common areas and common facilities associated with the development”. The various clauses and sub-clauses of SEPP No. 5 cannot be read in isolation – they must be read in the context of the whole instrument, the various provisions being complementary. There was no error on the part of the Commissioner in obtaining guidance as to the effect of cl 13A(2)(c) from a comparison with an equivalent provision elsewhere in the instrument. Ms Duggan makes the bare submission that this is an approach to statutory interpretation which is not permitted by law. No authority is cited in support of that proposition.

50 The Commissioner made the following finding of fact: “[t]he access to the lower garden area via the chair lift and jetty way above the lower garden does constitute “access” for the proposes of SEPP No. 5, and Mr Relf, an expert and wheelchair bound person himself, found that access to be quite acceptable” (par [151). That is a finding of fact with which this Court, on an appeal limited to a question of law, cannot interfere.

51 As noted above, the Commissioner also formed the view that the proposed development complies with cl 13A(2)(c) notwithstanding the inability to provide access to the waterfront. Again, this is a finding which I do not disturb. The Commissioner went on nevertheless to consider the objection to the clause under SEPP No. 1 in case his finding was incorrect. The Commissioner said:

If this is found to be incorrect, and a SEPP 1 objection must be considered in regard to the waterfront access, the opinion has been formed that the overall purpose of providing housing suitable for the aged, frail and/or disable has been achieved in the circumstances of this case to a sufficiently high level that the requirement to provide access to the waterfront for wheelchairs is neither reasonable nor necessary.

52 Ms Duggan submits that the Commissioner erred in considering the objection under SEPP No. 1 only in relation to the access to the waterfront facilities rather than to the whole of the common area; the Commissioner asked himself an impermissible question, namely whether or not the development provided housing to “a sufficiently high level”; and the Commissioner failed to consider whether a complying development would be unreasonable or unnecessary in the circumstances of the case.

53 In my opinion the Commissioner had not committed any legal error. Again avoiding a reading of the Commissioner’s reasons in an overly critical or pernickety way, it seems that he had previously identified the overall objectives of the standard, noted that the standard does not state that all common areas must be accessible, noted the physical impossibility of providing wheelchair access to the waterfront, noted that both parties agreed that the amenity of the site is high and a very desirable place of residence, and (it might be implied from these circumstances) found that the requirement to provide wheelchair access to the waterfront is neither reasonable nor necessary. In particular, Ms Duggan’s emphasis upon the fourth requirement in Winten is rejected: it was not an error in law to state the fourth proposition in the converse way, provided it was answered.

Ground 3: Failure to determine the adequacy and/or appropriateness of the footpath access along Tara Street

54 Clause 25(f)(i) of SEPP No. 5 states:

(f) Accessibility: The proposed development should, where appropriate:
(i) have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities, and

….

55 As I understand it, the issue of footpath access along Tara Street was not raised in the Statement of Issues relied upon by the council. The issue did not arise until the Commissioner took a view of the site. Ms Duggan submits that the only consideration of the issue by the Commissioner appears at par [169] of his decision in which he refers to the imposition of an appropriate condition. It is further submitted that the Commissioner had an obligation to make findings in relation to matters in dispute between the parties, including the council’s underlying opposition to the proposed means of access. It is submitted that the Commissioner had an obligation to give reasons for any such findings; and in failing to make such findings and give reasons therefor he committed an error of law in both respects. (Reference was made to Martin & Spork, City Plan Services and Westport Marina Development.)

56 Contrary to Ms Duggan’s submission, the Commissioner’s consideration on this issue appears elsewhere in the decision, apart from his discussion of the appropriate condition. At par [103] of his decision the Commissioner states:

During the view it became obvious that there were greater difficulties in constructing footpath along Tara Street uphill to Birdwood Street bus stop. The applicant was permitted to obtain survey information and give to the respondent in order to assess the extent of the difficulties. Written submissions were permitted. The result was that whilst a zigzag ramp was needed on the footpath reserve at the same intersection it could be constructed to appropriate standards if required.

57 Earlier, the Commissioner had stated (at par [99]):

The return journey would use another bus stop at the corner of Tara Street and Birdwood Street about 190 m away. To get there it was necessary to cross the road at the intersection of Venetia and Tara Street. This was just at the point of Venetia St turning downhill. The cross fall was unacceptable and would lead wheelchairs to roll down the hill unless the road pavement was altered. Once on the footpath on the north-west corner of the intersection, the cross fall there was also unacceptable and would necessitate a zigzag ramp being constructed in the footpath as well as constructing the footpath itself. Buses going to Hurstville and Southgate shopping centres used these stops.

58 The penultimate sentence of par [99] and the concluding sentence of par [103] show that the Commissioner had found that the issue could be resolved by a zigzag ramp on the footpath. At paragraph [169] the Commissioner discusses the details of the proposed zigzag ramp and himself reformulates a condition which is then imposed. This shows that he determined that that issue could be resolved by the imposition of such a condition. This determination was made after receiving survey evidence and after having himself assessed the footpath on the view.

59 I have previously referred to the authorities on the duty to give reasons, which have been followed and applied in the cases to which Ms Duggan has referred. It must be re-emphasised that the Commissioner’s reasons should not be examined in an overly critical or pernickety way (North Sydney Council v Ligon 302 Pty Ltd at 442). It must also be re-emphasised that the decision should not be examined as if it was written by a lawyer (Brimbella at 368). The Commissioner’s reasons cited above show that this issue could be resolved by way of requiring a zigzag ramp and that he decided to impose an appropriately detailed condition to that effect. No error of law has been committed.

Ground 4: The exemption from SEPP No.5

60 By New South Wales Government Gazette No. 144 dated 13 September 2003 SEPP No. 5 was amended to exempt the Sutherland Shire area from the application of the Policy. The operative provision is a new cl 28 inserted into SEPP No. 5:

28 Development in Sutherland
(1) An application to carry out development allowed by Part 2, if the development is to be carried out on land within the Sutherland Shire area, may be made only:
(a) by or on behalf of:
(i) the Director-General of the Department of Housing, or
(ii) a local government or community housing provider, or
(b) in relation to land in Alexander Avenue, Taren Point, being Lot 2, DP 1026203, or
(c) in relation to land within Zone No 5 (a).
(2) Despite clause 26, this clause extends to a development application, made but not finally determined before the commencement of this clause, but nothing in this clause prevents the granting of development consent to:
(a) a development application made on or before 6 May 2002 (being the date on which Sutherland Shire Council resolved to restrict the application of this Policy in its area), or
(b) a development application made before or after the commencement of this clause that relates to development for which a development consent is granted as referred to in section 80 (4) of the Act.

61 The development application the subject of these proceedings was made on 28 December 2001. Accordingly, the exemption of the Sutherland Shire area from the general operation of SEPP No. 5 did not operate to prevent the granting of development consent to the subject development application under SEPP No. 5.

62 The Commissioner gave consideration to this at par [35] of his decision:

The Court was also advised that Sutherland Shire had recently obtained an exemption from SEPP 5 from the Minister for Planning and Environment. There was however a savings clause which preserved this application as a permissible use and to be dealt with under SEPP 5.

63 Ms Duggan submits that the Commissioner failed to take into consideration the general exemption of the Sutherland Shire Area from the operation of SEPP No. 5 under cl 28. According to the submission, s 79C of the EP&A Act requires the Court to have regard to the provisions of a relevant environmental planning instrument. At the date of determination of the development application by the Commissioner the relevant environmental planning instrument, namely SEPP No. 5, prohibited the proposed development; the fact of the saving provision did not operate as a presumption of approval; and the Commissioner was required to have regard to the exemption of the Sutherland Shire area as a relevant consideration. Ms Duggan relies upon Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 in support of the submission that the exemption of the Sutherland Shire area from the general operation of SEPP No. 5 had to be considered. The failure of the Commissioner to consider it and his failure to give reasons for not doing so amounted, in Ms Duggan’s submission, to an error of law.

64 In my opinion, however, Blackmore does not assist the council. In that case the proposed development was prohibited, but there was a savings clause in the North Sydney Local Environmental Plan 2001, cl 5(3) which stated:

5(3) Saving and transitional provision
Where a development application has been lodged but not finally determined before the commencement of this plan, the environmental planning instruments repealed or amended by this plan shall apply as if this plan had been exhibited but not commenced.

65 There is no equivalent provision to that clause in the present case. The absence of such a provision and the different wording of cl 28(2)(a) are sufficient to distinguish Blackmore from the present case. Ms Duggan relies, in particular, upon par [29] of the Blackmore judgment (at 298):

It seems to me that in applying the savings clause, cl 5(3), to the present case, one cannot ignore the fact that the 2001 LEP has been made. In applying the words of the clause that “ the environmental planning instruments repealed or amended by this plan shall apply as if this plan had been exhibited but had not commenced” , it is necessary in the light of that circumstance to assume that the making of the notionally draft plan was certain and imminent. In Architects Haywood Bakker Pty Ltd v North Sydney Council [[2000] NSWLEC 138], Pearlman J said that the savings provision does not require a different approach. I thus reject the submissions of the applicant that this approach is not consistent with the purpose of cl 5(3).

66 This passage, however, makes clear that the decision in that case was founded upon the express words of the particular savings clause: “the environmental planning instrument repealed or amended by this plan shall apply as if this plan had been exhibited but not commenced”. Clause 28(2) of SEPP No. 5 contains no equivalent to cl 5(3), as was determinative in Blackmore.

67 It is necessary, therefore, for the Court to construe the effect of cl 28(2), even though Mr Wright appeared to accept the applicability of Blackmore. In cases of statutory interpretation the courts are not bound by counsel’s argument. This is consistent with the assertion of McGarvie J in Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547. McGarvie J cited Lord Wilbeforce in Saif Ali v Sydney Mutual & Co (A Firm) [1980] AC 198 at 212: “Judges are more than mere selectors between rival views – they are entitled to and do think for themselves”. It follows that although counsel may not have supported a particular interpretation of legislation, that does not, indeed must not, prevent a court from adopting that interpretation if it considers it to be correct. (Pearce and Geddes: Statutory Interpretation in Australia, 4th ed, p 5, applied by Bignold J in Director-General Department of Land And Water Conservation v Jackson And Ors [2003] NSWLEC 81.)

68 As noted above, in determining a development application made but not finally determined before the commencement of cl 28 of SEPP No. 5, as in the present case, there is no express requirement as in the Blackmore case for the development application to be considered and determined as if the general exemption of the Sutherland Shire area was a proposal that had been exhibited but not commenced.

69 The words used in cl 28(2) are “nothing in this clause prevents the granting of development consent to …”. The presence of a requirement such as in cl 5(3) in Blackmore and its absence in cl 28(2) in the present case, together with the words actually used in cl 28, suggests that those words must be applied according to their tenor: that is “nothing in this clause prevents the granting of development consent to” the development application in the present case.

70 The Commissioner made no error in stating that the general prohibition in the Sutherland Shire area against development permitted by SEPP No. 5 was subject to a saving provision and that the application was a permissible use to be dealt with under SEPP No.5.

Conclusion and Orders

71 I have not found any error of law in the Commissioner’s decision. It is therefore appropriate that I make the following orders:

(1) The appeal is dismissed.
(2) The appellant, Sutherland Shire Council (the respondent before the Commissioner), must pay the applicant’s costs of the appeal.


I hereby certify that the preceding 71 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated: 5 May 2003


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