Eastlake Golf Club Limited v Botany Bay City Council

[2007] NSWLEC 236

Land and Environment Court

of New South Wales

CITATION:	Eastlake Golf Club Limited v Botany Bay City Council [2007] NSWLEC 236
PARTIES:	APPLICANT: Eastlake Golf Club Limited RESPONDENT: Botany Bay City Council
FILE NUMBER(S):	11019 of 2005
CORAM:	Lloyd J
KEY ISSUES:	Appeal :- under s 56A of the Land and Environment Court Act 1979 - limited to errors of law - interim decision - development proposal not acceptable - appeal not dismissed - adjournment to allow revised development proposal to be submitted - impact on threatened ecological community - ameliorative measures incorporated into proposed development - no species impact statement required - revised design - procedural fairness - failure to take matters into consideration - application of State Environmental Planning Policy No. 1 - Development Standards - taking into account financial circumstances
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C Land and Environment Court Act 1979 s 56A State Environmental Planning Policy No. 1- Development Standards State Environmental Planning Policy No 64 – Advertising and Signage cl 24 Botany Bay Local Environmental Plan 1995 cl 19, cl 27
CASES CITED:	Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83; Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 50 NSWLR 312; Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367; Campbelltown City Council v Toth (2004) 135 LGERA 336; Coles v Woollahra Municipal Council (1986) 59 LGRA 133; Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186; Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275; Hardie Holdings Pty Ltd v Director General, Department of Natural Resources [2007] NSWLEC 39; J Murphy & Sons Ltd v Secretary of State for the Environment (1973) 1 WLR 170; Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373; Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343; North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435; Pyneboard Pty Ltd v Trade Practices Commission & Bannerman (1982) 39 ALR 565; Randwick Municipal Council v Crawley (1986) 60 LGRA 277; Smyth v Nambucca Shire Council (1999) 105 LGERA 65
DATES OF HEARING:	28 February 2007 & 1 March 2007
DATE OF JUDGMENT:	2 May 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr A E Galasso SC SOLICITORS: Cutter Hughes & Harris RESPONDENT: Mr T S Hale SC SOLICITORS: Houston Dearne O'Connor

JUDGMENT:

- 13 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Wednesday, 2 May 2007

LEC No. 11019 of 2005

EASTLAKE GOLF CLUB LIMITED v BOTANY BAY CITY COUNCIL [2007] NSWLEC 236

JUDGMENT

1 HIS HONOUR: Eastlake Golf Course, in southern Sydney, is bisected by a main road known as Wentworth Avenue. Wentworth Avenue is a busy road with a 70 kph speed limit and carries around 40,000 vehicles per day. Golfers completing the course have to cross the road on two occasions – from the 6th to the 7th hole and back again from 13th to the 14th hole. Total movements across the road annually amount to about 135,000, which include 17,500 staff movements including maintenance vehicles. It is self-evident than the situation gives rise to safety concerns.

2 The Club applied for development consent for a bridge over the road for pedestrians and service vehicles. The bridge would carry two illuminated advertising panels, one on each side, 12.6 metres in length and 3.4 metres in height and which would provide the means of financing the construction of the bridge. The council refused the application. The Club appealed. The appeal was heard by Commissioner Moore, who, in an interim judgment, upheld the appeal on the basis of revised plans to be submitted consistent with his determination.

3 The council now appeals against the commissioner’s decision, relying on a number of alleged errors of law: s 56A of the Land and Environment Court Act 1979. As I understand them, the alleged errors of law may be reformulated as follows:

(1) On the finding of fact, the commissioner erred in not dismissing the appeal and refusing the development application;

(2) The commissioner erred in not holding that the development was likely to significantly affect a threatened ecological community, namely Eastern Suburbs Banksia Scrub, and in not holding that a species impact statements was thus required;

(3) The commissioner erred in approving a design for a bridge that was not before the Court;

(4) (a) The commissioner denied procedural fairness in not permitting the council to lead evidence or make submissions on the revised design (except on the limited question of structural adequacy) and in not permitting the council to refer the revised design to the joint experts; and

(b) The commissioner failed to take into consideration any of the matters under s 79C of the Environmental Planning and Assessment Act 1979 (“the EP&A Act ”) in relation to the revised design, other than the question of structural integrity;

(5) The commissioner failed to take into consideration cl 19(2) of the Botany Bay Local Environmental Plan 1995 (“the LEP”);

(6)(7)(8) I observe that these grounds overlap. It is alleged that the commissioner erred in his application of State Environmental Planning Policy No. 1- Development Standards (“ SEPP No. 1 ”) to the advertising panels when the final design and dimensions of the bridge had not been determined; and
(9) The commissioner erred in taking into account the applicant’s financial circumstances as a relevant consideration.

The commissioner’s decision

4 The hearing took place over four days in May 2006. On 23 April 2006 the commissioner delivered an interim judgment in which he set out the following conclusions at [250]:

In summary, I have reached the following conclusions:

1. No species impact statement is required provided the applicant commissions satisfactory detailed material from Mr Introna concerning ameliorative measures for the ESBS;

2. I do not need to consider alternatives to a bridge as, in the relevant context, there are none;

3. A bridge at the proposed site is acceptable:

4. The present proposed bridge is not an acceptable design;

5. A bridge of a design of the more open span type (of which a photograph was in evidence of a bridge above the M7 Motorway) would be acceptable at the proposed location;

6. Advertising on a bridge is permitted at this location as a consequence of cl 24(1) of SEPP 64;

7. The SEPP 1 objection to compliance with cl 24(2)(b)(i) of SEPP 64 should be sustained;

8. Assessment of the proposed advertising panels pursuant to the merit assessment criteria of SEPP 64 finds them to be acceptable if erected on a bridge of a design of the more open span type; and

9. The public interest in eliminating the potentially fatal consequences of the inherent conflict between golfers and course service vehicles travelling along north/south routes and the high volume of vehicle traffic utilising Wentworth Avenue, during daylight hours, acts to render it in the public interest to permit the golf club the opportunity to consider whether it wishes to amend the application to enable consent being given to a bridge of an acceptable design.

5 The commissioner then said that he was not in a position to issue final orders and instead gave directions which included the filing and service of “revised plans for a bridge consistent with this decision”, the filing and service of a detailed management plan for the Eastern Suburbs Banksia Scrub prepared by the court-appointed expert and the filing and service of any reports on the structural adequacy of the revised pans by both the applicant and the respondent. A court appointed-structural engineer was subsequently appointed on 13 October 2006 to report on the structural adequacy of the revised plans.

6 There was then a further hearing before the commissioner on 8 November 2006, during which an extension of time was granted for the court-appointed structural engineer to report. His report and a supplementary report confirmed the structural adequacy of the revised design and on 30 November 2006 the commissioner made formal orders upholding the appeal and granting consent to a bridge of the revised design.

7 I now turn to each of the errors of law that alleged by the council.

Ground (1): The appeal should have been dismissed

8 The council relies upon the commissioner’s finding that the design of the proposed bridge was not acceptable. Having so concluded, the commissioner said (at [190]):

Having concluded that the specifically proposed bridge structure is not acceptable, I considered whether I should simply leave the applicant to consider some different future application. I have decided I should not but should permit a revised design of the nature of the more skeletal designs used on the M7 – if the applicant wished to do this.

9 The council submits that the commissioner also found on the evidence before him that a species impact statement was required unless a suitable plan of management was prepared. He gave the applicant an opportunity to produce a plan of management.

10 Mr T S Hale SC, appearing for the council, submits that, having found that the proposed design was unacceptable and that a species impact statement was required, the commissioner should have dismissed the application.

11 I do not accept the submission. It is contrary to authority. In Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373, Biscoe J held that the Court has the power to deliver such an interim judgment. His Honour said, in the context of a planning appeal in class 1 of the Court’s jurisdiction (at [57]):

In my view, the legislature is less concerned in a merits review such as this with winners and losers, than with achieving the best community outcome with as little formality and technicality as possible. That may sometimes be achievable through an interim judgment, which gives an applicant the opportunity to amend its application before the Court pronounces its final judgment.

12 This is a complete answer to the submission. Moreover, as noted by Mr A E Galasso SC, appearing for the Club, the submission that the commissioner had found that a species impact statement was required is wrong. As noted in par [4] above, the commissioner found that no species impact statement is required provided that the applicant commissions satisfactory detailed material from Mr Introna, the court-appointed expert, concerning ameliorative measures for the threatened ecological community. The applicant subsequently did so. As noted by Biscoe J in Maxnox, the production of an interim judgment giving the applicant such an opportunity does not amount to an error of law. Similarly, there is no error of law in permitting an applicant to amend the proposed development, so long as it does not amount to a fresh application (which is not the case here).

Ground (2): A species impact statement was required

13 The commissioner accepted the proposition that if a species impact statement is required and none is provided, then the result is that there is no development application capable of being approved (citing Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 50 NSWLR 312).

14 In the present case the development application was accompanied by a statement of environmental effects and, inter alia, a flora and fauna assessment prepared by Total Earth Care, which addressed the provisions of s 5A of the EP&A Act and which included the eight-part test required to determine whether there is likely to be a significant effect on the threatened ecological community, and if so which in turn would require a species impact statement: s 78A(8)(b). The commissioner noted at [47] of his decision that the Total Earth Care report identifies and recommends the inclusion of a number of ameliorative actions and that these form part of the development application.

15 The court appointed expert on this issue, Mr W Introna, recommended a range of additional ameliorative measures. As the commissioner noted at [55]: “During the hearing Mr Galasso sought (and was granted) leave to amend the development application to incorporate the additional ameliorative measures proposed by Mr Introna”. The commissioner’s conclusions on the issues are set out in the following paragraphs:

[63] In this instance, the applicant has adopted the ameliorative measures proposed by Total Earth Care and those proposed by Mr Introna. These now form part of the development application falling to be determined.
[64] I am, therefore satisfied, relying on the approach in Smythe (sic) [ Smyth v Nambucca Shire Council & Anor (1999) 105 LGERA 65], that, prima facie, no species impact statement is required.
…
[66] It is clear from a reading of the ameliorative measures proposed by Total Earth Care and those proposed by Mr Introna that a number of them are, in fact, couched in general terms and lack specificity.
[67] However, I am satisfied that they are not incapable of being couched in more particular and specific terms which would render them able to be implemented to give the net benefit and positive outcome for ESBS postulated by Mr Introna. Indeed, it is reasonable to assume that Mr Introna so believed or he would not have reached the conclusions he had expressed.
[68] I am therefore satisfied that, as this lack of specificity is a curable impediment to approval, consistent with the recent approach taken by the Court in Class 1 appeals, the appropriate course to follow will be to have Mr Introna produce a detailed plan of management to implement all the ameliorative measures to the satisfaction of the Court. Only if the applicant is unwilling or unable to have Mr Introna do this will the application then fail the s 78A(8)(b) test as a species impact statement would then become required.

16 As I have noted, following the delivery of the interim judgment the applicant obtained a detailed management plan prepared by Mr Introna which was duly filed and served before the making of the final orders. In the final orders upholding the appeal the commissioner granted the development consent subject to a number of conditions, including condition 36:

36 The development shall be carried out in accordance with the Eastern Suburb Banksia Scrub Vegetation Management Plan prepared by Eco Logical Australia Pty Ltd dated September 2006.

17 Mr Hale SC submits that such an approach is contrary to the principle explained by Stein J in Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 192:

In my opinion a determining authority cannot determine the question of whether a proposed activity is likely to significantly affect the environment by reference to the imposition of certain conditions which may have the effect of mitigating the environmental impact. This is particularly so where such conditions have the effect of altering or changing the application made by the proponent. To do so could lead to absurd situations which will defeat the objectives of the legislation. One must have regard to the opening words of s 111: "For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, ... " In my view an application for permission or approval to carry out an activity is either likely to significantly affect the environment or it is not.

18 In the present case the commissioner was fully aware of the principle explained above. He expressly referred to it at [58] of his decision.

19 The commissioner also noted (at [60] and [61]) the principle explained in Smyth v Nambucca Shire Council (1999) 105 LGERA 65, namely, that ameliorative measures which are proposed as part of the development may be taken into account in determining whether there was likely to be a significant effect on threatened species by that development. I observe that, as Bignold J explained in Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34 at [113]-[121], there is no inconsistency in these principles.

20 In the present case the commissioner stated (at [64]) that he was satisfied, relying on the approach in Smyth, that no species impact statement is required. A fair reading of the commissioner’s decision, and in particular the passages that I have set out above, shows that the commissioner accepted that he could not resort to conditions of consent before determining whether a species impact statement was required. Rather, the commissioner formed the opinion he expressed in [64], on the basis of the development application itself together with the ameliorative measures proposed by Mr Introna and which, he found, formed part of the development. That is, he was satisfied that no species impact statement was required on the basis of the material comprising the development application, before he decided to impose condition 36. As the commissioner explained in [67], the ameliorative measures proposed as part of the development application “are not incapable of being couched in more particular and specific terms”. After having satisfied himself that no species impact statement was required the commissioner was free to impose any further or additional requirement by way of a condition of consent – in this case, as he explained in [68], “a detailed plan of management to implement all the ameliorative measures”. As Mr Galasso explains, having determined the preliminary question that no species impact statement was required (at [64]), the commissioner then put the proposal into operation by the imposition of the condition. In so doing, the commissioner did not commit any error of law.

Grounds (3) and (4): Approving a design that was not before the Court, denial of procedural fairness and failure to take into consideration s 79C of the EP&A Act

21 It is convenient to consider these grounds of appeal together.

22 The commissioner determined that a bridge was acceptable at the proposed location (at [140]). The commissioner also determined, however, that the specific design of the proposed bridge was not acceptable at the proposed location (at [159]). The commissioner then said (at [187]): “I turn to consider how I should approach the possibility of another type of bridge design being acceptable – even though that which is presently proposed is not acceptable”. The commissioner had, during the hearing, drawn the parties’ attention to the design of newly constructed pedestrian bridges on the recently opened M7. After an adjournment the applicant tendered photographs of those bridges.

23 The commissioner’s consideration of an alternative design is contained in the following paragraphs:

[188] Some limited material was provided concerning possible alternative bridge designs – photographs of more skeletal designs used on the M7 were tendered. The applicant did not seek to suggest that these met its technical requirements for carrying equipment or that the proposed advertising could be mounted on such a structure. However, nor did the applicant suggest that such a design might not be so capable.
[189] …
[190] Having concluded that the specifically proposed bridge structure is not acceptable, I considered whether I should simply leave the applicant to consider some different future application. I have decided I should not but should permit a revised design of the nature of the more skeletal designs used on the M7 – if the applicant wished to do this.
[191] I have so concluded because I am satisfied that a structure of this nature would resolve the disbenefits of the present proposal.
[192] …
[193] Indeed, the process I am following is that now considered appropriate in Class 1 development appeals – that of permitting revised plans if a development is generally approvable but not in the specific form proposed in the development application before the Court.

[194] Although a new bridge design is required (and the council will need to satisfy itself as to the structural adequacy of that design – at the applicant’s cost) – none of the matters canvassed in these proceedings will arise for further consideration. I do not, therefore, consider it appropriate or in the public interest to send the applicant back to the beginning of the process again. Nor do I consider it necessary to require or permit any advertising of a revised design as its changed impact is purely ameliorative.

24 I have noted in par [4] above the commissioner’s conclusions in particular the fourth and fifth points in those conclusions (at [250]). As noted in par [5] above, the commissioner then gave a number of directions, including relevantly the following (at [251]):

1. …

2. The applicant has until the close of business on Wednesday 6 September 2006 to file and serve revised plans for a bridge consistent with this decision;

3. …

4. …

5. …

6. The respondent is to file and serve any report on the structural adequacy of the revised plans by the close of business on Wednesday 20 September 2006;

7. The applicant has until the close of business on Wednesday 27 September 2006 to file and serve any report in response to any report of the respondent pursuant to (6);

25 The commissioner’s interim decision was delivered on 23 August 2006. The commissioner’s directions were consistent with the principle explained in Maxnox, described above, by delivering an interim judgment which gave the applicant the opportunity to amend its application before the final determination.

26 After the delivery of the interim judgment, a number of things happened. On 31 August 2006 the matter was re-listed before the commissioner on an application by the Club for an extension of time to comply with his directions numbered 2 and 3. On 29 September 2006 revised bridge plans and a draft vegetation management plan were filed and served. On 4 October 2006 the final vegetation management plan was filed and served. On 13 October 2006 the matter came before the registrar when a structural engineer, Mr B Smith, agreed to by both parties, was appointed as a court-appointed expert to report on the structural integrity of the revised plans.

27 The registrar also directed the parties to attend the resumed hearing on 8 November 2006 “ready to address all outstanding issues”. On 30 October 2006 the parties notified the Court that Mr Smith was no longer the court appointed expert and that the parties had agreed to the appointment of Mr S Branch instead. The parties again appeared before the commissioner on 8 November 2006 as directed by the registrar at which he made a number of further directions including the filing and service of the report of Mr Branch and at which the commissioner granted liberty to re-list the matter before himself on two days’ notice. The report of Mr Branch was filed and served on 17 November 2006. Also on 17 November 2006 an agreed set of conditions was filed by the council. On 22 November 2006 a supplementary report of Mr Branch was filed and served which confirmed the structural adequacy of the revised plans. The commissioner’s final orders upholding the appeal and granting consent to the revised plans were made on 30 November 2006.

28 Mr Hale submits that the council was, in these circumstances, denied procedural fairness. He submits that the commissioner denied the opportunity for the council to make any assessment of the revised design of the bridge, to refer the revised design to the court appointed experts, to lead any evidence or to make any submissions with respect to it, and the only evidence that the council was allowed to lead and on which it could make submissions was on the structural adequacy of the revised design. Mr Hale states from the bar table that when he appeared before the commissioner for the final determination of the appeal on 8 November 2006 he sought to clarify what his (and the council’s) role was at that hearing. Accordingly to Mr Hale, “the commissioner confirmed that the only role that the council had in respect of the bridge was on the issue of structural safety and conditions and confirmed the council did not have a role and would not be in a position to make submissions as to whether or not it should be approved in that particular form or indeed lead any evidence…”

29 As senior council for the Club submits, in considering whether there has been a denial of procedural fairness it is necessary to have regard to the circumstances in which the duty is said to have been breached.

30 The first thing to note is that the design change was purely ameliorative. The original proposal was for a heavy reinforced concrete structure. The revised design is for a lighter, open, steel-framed structure. I have previously noted the commissioner’s statement at [194] of his decision, which bears repeating:

[194] Although a new bridge design is required (and the council will need to satisfy itself as to the structural adequacy of that design – at the applicant’s cost) – none of the matters canvassed in these proceedings will arise for further consideration. I do not, therefore, consider it appropriate or in the public interest to send the applicant back to the beginning of the process again. Nor do I consider it necessary to require or permit any advertising of a revised design as its changed impact is purely ameliorative.

31 The next thing to note is that the council had been given the revised plans before the final hearing on 8 November 2006, namely on 29 September 2006. This gave ample time to the council to consider the revised plans and obtain any expert advice about them. Then, on 13 October 2006, the registrar listed the matter for final determination on 8 November 2006 and directed that “the parties be ready to address all outstanding issues”.

32 Next, there is nothing in the commissioner’s interim decision which says that the council’s role at the final hearing was to be limited to structural considerations. As I have already noted, the registrar had previously directed that the parties should be ready to address all outstanding issues. The council had a clear opportunity when the hearing recommenced on 8 November 2006 to say that it wished to lead evidence and make submissions on the revised plans. The duty of counsel appearing before commissioners is to assist them in relation to any matter of legal principle: Campbelltown City Council v Toth (2004) 135 LGERA 336 at 344. If the commissioner had refused any request by the council to lead evidence and make submission on the revised design then there may have been scope for a finding of denial of procedural fairness. Counsel appearing before commissioners should, however, make it abundantly clear what they wish to do. In the present case the council did not make known to the commissioner whatever it was that it wished to raise. The circumstances do not demonstrate that there was a denial of procedural fairness.

33 The final aspect of ground (4) is an assertion that in determining the development application for a bridge based on the revised plans the commissioner did so without taking into account consideration any of the matters he was required to take into consideration under s 79C of the EP&A Act.

34 It must be remembered, however, that the commissioner delivered an interim judgment, in which he indicated the nature of the revised design that he would be prepared to allow and in which he gave the applicant the opportunity to amend its application before pronouncing his final determination. This is a perfectly acceptable procedure: Maxnox at [59]. To quote Mr Gallasso, when the commissioner came to consider the revised design at the final hearing, “he knew the evidence, he knew the position of the bridge, he knew the evidence that was before him, he had the evidence of what he described as the bulky nature of the bridge, he had the evidence of the bridges on the M7 in an exhibit that was tendered before him, he undertook or certainly sponsored questions of the applicant’s witnesses and the court appointed experts in relation to design, he afforded an opportunity to bring in a new design and … the design that he ultimately approved, was not inconsistent with the design that was the subject of the questions to the court appointed experts…”.

35 I find it difficult in these circumstances to conclude that the commissioner failed to take into account the relevant matters under s 79C of the EP&A Act. The council has not identified which of the matters in s 79C were not considered. The council has not demonstrated any error of law arising under this ground.

Ground (5): Failure to take into consideration clause 19(2) of the LEP

36 Wentworth Avenue is shown unzoned on the LEP map. Clause 19 applies to unzoned land. The neighbouring land, comprising the golf course, is zoned 6(c) Open Space - Recreation – Restricted. Clause 19 is relevantly as follows:

19 Development of land shown unzoned on the map
(1) This clause applies to all land to which this plan applies shown unzoned on the map.
(2) Development for any purpose of any land to which this clause applies may be carried out with the consent of the Council provided the Council is of the opinion that the development:
(a) is compatible with the nature of development permissible on neighbouring land and those development standards applicable to development on neighbourhood land, and
(b) is consistent with the objectives of this plan and the objectives of the zoning applying to neighbouring land.
(3) …

37 One of the relevant objectives of the LEP is “to encourage and improve visual amenity of the local government area of Botany Bay by providing controls on advertising signs and structures”: cl 5(9)(b).

38 The primary objective of the 6(c) zone is “to permit open space and recreational land uses…”. Development which is permissible with consent in the 6(c) zone includes “recreation areas”. The neighbouring land was used, as we know, for the purpose of a golf course.

39 The only controls within the LEP relating to advertising structures are in cl 27, but that clause merely applies to advertising structures in zones 3(a), 3(b), 4 (c1), 4 (c2) or 5 (a). There seems to be no control over advertising structures on unzoned land. There is, however, a state environmental planning policy relating to advertising signs (State Environmental Planning Policy No 64 – Advertising and Signage (“SEPP No. 64”)), which is the subject of the next ground of appeal.

40 The council submits that the commissioner was not empowered to grant development consent to the advertising structure on the bridge without first forming the opinion that is required by cl 19(2) and that he failed to address the issues in that he only considered the clause in relation to the bridge itself.

41 The commissioner was clearly aware of cl 19(2). He set it out in full on two occasions in his decision – at [37] and again at [88]. At paragraph [89] and following, the commissioner assessed the development against both sub-cl (2)(a) and sub-cl (2)(b) of cl 19. In doing so the commissioner did not differentiate between the bridge and the advertising panels on each side of the bridge.

42 The LEP defines “advertising structure” as meaning “any structure erected for the display of general advertising”: cl 7 and Sch 1. In the present case it is possible to take the view that this is not a “structure erected for the display of general advertising” – it is a bridge. On this view, the commissioner’s extensive consideration of the development application against the requirements of cl 19(2) and his expressed satisfaction that it complied with both cl 19(2)(a) and 19(2)(b) seems to be a complete answer to the council’s submission.

43 Moreover, in his consideration of the development application against the requirements of SEPP No. 64 under the heading “Is the proposed advertising signage acceptable”, the commissioner again addressed the substance of cl 19(2). After referring to the evidence of two expert witnesses, Mr N Ingham and Mr Blyth, the commissioner at [234] expressed a preference, for various reasons, for the opinion of Mr Blyth, which was:

The visual impact of the sign has largely been confined to the road corridor. Due to the nature of the landform other opportunities to view the sign are limited and would be available from the golf course on the northern side of the road. Such views will be generally distant, oblique and partial in their scope.

44 A fair reading of the commissioner’s decision shows that the assessment under SEPP No. 64 was more thorough and extensive than his assessment of the development application against the requirements of cl 19(2) and, as I have noted, it includes an assessment of the substance of cl 19(2).

45 In all the circumstances I am not satisfied that the commissioner failed to take into consideration cl 19(2) of the LEP.

Grounds (6), (7) and (8): The commissioner erred in his application of State Environmental Planning Policy No. 1 (“SEPP No. 1”)

46 The council’s submission is based on the development standard in cl 24 of SEPP No. 64. Clause 24(2) states that the consent authority may grant consent to the display of an advertisement on a bridge only if, relevantly, the advertisement does not protrude more than 1,000 millimetres above the road level of the bridge and the sight line of people using the bridge will not be obstructed by the advertisement, and the advertisement does not protrude below the structure of the bridge.

47 The height of the advertising panel is to be 1,500 millimetres above the road level of the bridge. The applicant accordingly lodged an objection to compliance with the development standard under SEPP No.1.

48 The council contends that, in allowing the objection, the commissioner erred in two respects:

(i) the commissioner granted consent to an advertising panel on a bridge which was of uncertain design and uncertain dimensions - and until the design and dimensions of the bridge were known the commissioner could not properly exercise his power under SEPP No.1;

(ii) no opportunity was given to the council to make submissions on the objection in relation to the revised design of the bridge.

49 I note that these submissions, made orally, depart from the council’s written submissions filed before the commencement of this appeal. I therefore confine my consideration to the two respects noted above.

50 Clause 24 of SEPP No. 64 is concerned with ensuring the maintenance of sight line or views by those persons using the bridge so as to ensure that they are not impeded by advertising signs. The advertising panel at all times had the same dimensions and bore the same relationship to the approved design as with the original design. Importantly, the relationship of the top of the sign to the road surface remained precisely the same.

51 The commissioner noted (at [198]) that the particular development standard to which the objection was made was a restriction on the height of advertisements above the bridge road level. That was the subject of the objection. It had nothing to do with the design of the bridge, but rather the relationship of the advertising panel to the road surface and, in particular, its height above the road surface. The council had ample opportunity to make submissions on that question. The commissioner’s consideration of the question was directed to the height standard having regard to its underlying purpose.

52 In passing I note that there was never any suggestion in either the original plans or the revised plans that the advertising panels would protrude below the structure of the bridge.

53 There was no error by the commissioner in his application of SEPP No. 1 to the development standard in cl 24(2) of SEPP No. 64.

Ground (9): Taking into account the applicant’s financial circumstances.

54 At paragraph [22] of his decision the commissioner said:

A critical element of the application is the proposal for erection of two illuminated signage panels to the sides of the bridge – with one panel facing east and one facing west. These signs are critical as their erection and the advertising revenue to flow from their use is to provide the essential financial underpinning for the bridge’s construction.

55 At paragraph [69] of his decision the commissioner said:

The golf club does not resile from the fact that the proposed bridge is the only viable proposition for a new, safer road crossing, as far as the golf club is concerned, because of the inability of the golf club to finance any possible alternative. The commercial proposition for advertising on the proposed bridge structure is what makes the bridge financially viable for the golf club.

56 Later in his decision the commissioner notes the existence of expert opinion that the bridge would afford a higher vantage point from which users of the golf course could view the nearby wetlands, which he considered to be a significant positive (at [210]). The commissioner then stated (at [211]):

This new positive vantage point would be enjoyed on - 135,000 crossings per annum. Without the signs there will be no bridge; without the bridge there will be no new viewing of this type; without this viewing, there will be no enhanced understanding possible of the significance of the wetlands.

57 The council submits that the commissioner thus took into account financial considerations and in particular the personal circumstances of the Club, which are said to be irrelevant considerations: Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 at [11]-[13].

58 As Mr Galasso freely admits, there was no secret about the fact that the bridge was to be funded by the revenue from the advertising. This kind of arrangement is recognised in SEPP No. 64 itself – cl 24(3) applies to and regulates a bridge built by or on behalf of a public authority “the cost of which is to be met or offset from advertisements displayed on the bridge”.

59 Although cl 24(3) applies only to a bridge built by or on behalf of a public authority, it amounts to a statutory recognition and acceptance of the fact that the cost of bridges may be funded by advertisements displayed on the bridges themselves.

60 In my view a fair reading of the commissioner’s reasons shows that he did not inquire into matters of cost and cost benefits (cf J Murphy & Sons Ltd v Secretary of State for the Environment (1973) 1 WLR 170 at 565). Nowhere in the decision are any figures mentioned. The commissioner merely noted the facts which I have stated above, but nowhere does his decision depend upon or rely upon these facts in reaching the determination that he did, namely, that a bridge at this location was acceptable. The commissioner does not give this as a reason for allowing the appeal and granting development consent. And even if he did take the Club’s financial circumstances into account it would not amount to an error of law unless it was a material consideration: Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275. Any such error must be more than an error at some stage of the process - it must be an error that affects the ultimate determination: Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 350 [17].

61 In the present case there is nothing in the decision which suggests that the commissioner’s determination was dependent upon the fact that the cost of the bridge was to be funded by revenue from the advertising. The decision of the commissioner is clearly based on other grounds. In my view the circumstances do not give rise to an error of law.

Conclusion

62 In the present case the decision of the commissioner has been subjected to close scrutiny in which almost every phrase and word used has been analysed in an attempt to find an error of law. The decisions of commissioners are not, however, to be applied in a precious or hypercritical fashion. It has been long been settled that a “fine-tooth comb” approach should not be employed when examining decisions of commissioners of the Court for error of law: Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138; Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 283; Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. In North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442, Kirby P warned against examining reasons in a overly critical or pernickety way. The courts have repeatedly held that parsing and analysis in the artificial atmosphere of the courtroom will not invalidate what, as a matter of common sense, is reasonably clear: Pyneboard Pty Ltd v Trade Practices Commission& Bannerman (1982) 39 ALR 565 at 571; Hardie Holdings Pty Ltd v Director General, Department of Natural Resources [2007] NSWLEC 39 at [38]. I find it necessary to re-state these principles because the present appellant is not alone in conveniently ignoring them in an attempt to expose some slip or error amounting to a mistake of law. It happens in almost every case of an appeal against a commissioner’s decision, despite the fact that these principles are – or ought to be – well known.

Orders

63 None of the suggested errors of law have been established. It follows that the following orders should be made:

(1) The appeal against the decision and orders of Commissioner Moore is dismissed.

(2) The orders of Commissioner Moore dated 30 November 2006 are confirmed.

(3) The appellant, Botany Bay City Council, must pay the costs of the appeal.

I hereby certify that the preceding 63 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: 2 May 2007