Fabcot Pty Ltd v North Sydney Council

[2005] NSWLEC 554

Land and Environment Court

of New South Wales

CITATION:

Fabcot Pty Ltd v North Sydney Council [2005] NSWLEC 554

PARTIES:

APPLICANT:
Fabcot Pty Ltd

RESPONDENT:
North Sydney Council

FILE NUMBER(S):

11584 of 2004

CORAM:

Bignold J

KEY ISSUES:

Question of Law :- appeal against Commissioner’s judgment—construction of a provision of Development Control Plan specifying maximum carparking rates.

LEGISLATION CITED:

Land and Environment Court Act 1979, s 56A
North Sydney Development Control Plan 2002

CASES CITED:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING:

31/08/2005

 
DATE OF JUDGMENT: 

10/06/2005

LEGAL REPRESENTATIVES:

APPLICANT:
N Hemmings QC
SOLICITORS
Allens Arthur Robinson

RESPONDENT:
P J McEwen SC
SOLICITORS
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

6 October 2005

11584 of 2004 FABCOT PTY LIMITED v NORTH SYDNEY COUNCIL

JUDGMENT

A. INTRODUCTION

1 HIS HONOUR: This is an appeal pursuant to the Land and Environment Court Act 1979, s 56A against the decision of Commissioner Moore upholding an appeal and granting development consent for the redevelopment of an existing building situate at Nos 1-7 Rangers Road, Neutral Bay for a Woolworths Supermarket, liquor store, commercial office space with basement carparking. The Commissioner’s judgment was published on 19 April 2005 (see (2005) NSWLEC 180) and final orders disposing of the proceeding were made on 15 June 2005.

2 The Council’s appeal against the Commissioner’s decision is limited to a question of law (s 56A(1)).

3 On the hearing of the appeal, the Council pressed only one of the two grounds for appeal it had raised in its Notice of Motion instituting the appeal. That ground was that the Commissioner “incorrectly applied the DCP in relation to calculation of parking requirements”: vide par 1(a) of the Notice of Motion filed 7 July 2005.

4 The reference in this stated ground to “the DCP” is a reference to the North Sydney Development Control Plan 2002, Section 9 of which contains provisions relating to carparking requirements for certain developments and which the Commissioner, in his judgment held to be applicable to the required determination of the development application and were to be accorded “considerable weight” (vide paragraphs 60 to 78 of his reasons for judgment).

5 In its written submissions in support of its appeal, the Council submitted that the Commissioner had “misconstrued or misapplied the DCP”. I interpose that “misconstruction” of a relevant statutory provision will always involve a question of law but “misapplication” of a statutory provision to the facts as found only exceptionally will involve a question of law: see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156/157.

6 The Applicant contests the Council’s allegations of misconstruction of the DCP and misapplication of the DCP to the primary facts, and submits that the Council’s allegations are in truth but a futile attempt (in the context of s 56A) to convert questions of fact into questions of law.

7 Finally, the Applicant submits that there was an abundance of evidence adduced at the hearing before the Commissioner relating to the carparking ramifications of the proposed development which supported the Commissioner’s various findings of primary fact and his ultimate finding expressed in the following terms in par 141 of his reasons:

In total, therefore, I have concluded that on any proper construction of cl 9.2.a.vii, it is appropriate to accept the provision of car spaces on the site as envisaged by the application as there will be no additional adverse vehicle parking impacts on surrounding residential streets as a consequence of the application either at present time or 10 years hence.

8 As will presently be shown the manner in which this ultimate finding is expressed appears to have been largely influenced by the express terms of the DCP. But the ultimate finding also (and doubtless in the context of the statutory task imposed by the Environmental Planning and Assessment Act 1979, s 79C) is referable, and responsive, to the sole issue raised by the Council at the hearing of the development appeal, namely that there would be a significant shortfall between the actual parking demand generated by the proposed development and the on-site carparking provided by the proposal.

9 A full appreciation of the broader scope and context of the ultimate finding at par 141 is gained by reference to the following paragraphs of the Commissioner’s reasons under the heading “Conclusions”:—

216 I therefore concluded that there is no basis on either the sole determinative ground proposed by the council (that is the council’s view that there is inadequate parking provided by the site) or on any accumulation of lesser grounds why the appeal should be dismissed.

217 However, permitting Woolworths to open a new supermarket at 1 to 7 Rangers Avenue, Neutral Bay is acceptable only whilst the existing Woolworths’ supermarket at Grosvenor Street, Neutral Bay continues to operate. Therefore, approval of the proposed Rangers Avenue store will be subject to a condition that the consent only remains valid while the Grosvenor Street store continues to operate. A number of additional conditions beyond those sought by the council will also be imposed in response to concerns raised by objectors.

218 In addition, as dealt with individually earlier in this decision, drafting of a number of conditions to be incorporated in the conditions of consent remains to be settled by the parties in light of my reasons for decision.

10 At par 16, the Commissioner identified the provision of on-site carparking as the sole issue raised at the hearing when he stated:

Although the council filed a formal Statement of Issues in the proceedings, effectively the sole issue put on behalf of the council as warranting refusal of the application was that the provision of parking spaces on the site would lead to a significant shortfall compared to actual demand. The council considered that the result would be to impose an unreasonable, unacceptable and unable to be ameliorated burden on the surrounding community and thus the application should be refused.

11 In pars 22 to 34 (inclusive), the Commissioner states the gamut of the extensive evidence given at the hearing (by far the majority of which related to the traffic and parking ramifications of the proposed development, including the evidence of three traffic experts, one of whom was the Court appointed expert).

12 Thereafter, paragraphs 60 to 141 (inclusive) contain the Commissioner’s very extensive consideration of the parking issue including his summary of the evidence, together with his relevant factual findings and the ultimate conclusion at par 141 that I have earlier recited.

13 It is obvious that these paragraphs reflect a very detailed planning evaluation of the parking issue raised by the proposed development, and it is sufficient for the purposes of adjudicating upon this present appeal if I merely make some brief reference to parts of this extended passage from the Commissioner’s judgment. (However, later it will be necessary for the purpose of adjudicating upon this appeal to fully recite some relevant passages from the Commissioner’s judgment.)

14 The extended passage commences with express reference being made to Section 9 of the DCP. This Section of the DCP is headed “Carparking” and Section 9.1 contains provisions relating to parking in “Residential Zones” and Section 9.2 contains provisions relating to parking in “Other zones”. The present case involves only Section 9.2 of the DCP.

15 The stated objective of these DCP provisions relating to “other zones” is as follows:

a. Reduce on-site carparking due to the proximity of public transport. Contain traffic congestion and facilitate use of public and alternative transport modes including walking and cycling.

16 This stated objective is followed by 18 specific provisions including a “Schedule of maximum carparking requirements” which Schedule designates various particular forms of development and specifies the “maximum carparking requirements” in respect of each particular form of development so designated.

17 Item iii of Section 9.2 states “For specific uses see schedule of carparking requirements”. Included in the Schedule is the following entry:

“ supermarkets ” North Sydney Centre, Milsons Point and
St Leonards – 1 space/400 m2
Outside North Sydney Centre, Milsons
Point and St Leonards – 4 spaces/100 m2

(I interpose that it is common ground that the Commissioner correctly understood the relevant carparking requirements of the DCP in respect of the proposed development to be one space per 200 square metres of commercial floor space and a maximum of four spaces per 100 square metres floor space of the supermarket) producing a requirement of 11 car spaces for the commercial space and 137 car spaces for the supermarket (and associated liquor store)—vide pars 121 and 122 of the Commissioner’s reasons for judgment.

18 The only other provision of Section 9.2 of the DCP which is relevant for present purposes is item vii which provides as follows:

On-site carparking provision significantly below maximum rates specified above, will generally not be accepted due to the impact that additional vehicle parking may have on surrounding residential streets.

19 It is in respect of this particular provision that the Council alleges that the Commissioner fell into legal error, either in terms of its proper construction or of its proper application to the facts.

20 At par 64 of his reasons, the Commissioner stated:

Critical to my consideration of the parking issues is the approach to be taken to the terms of the relevant provisions of the DCP which apply to onsite parking.

21 The Commissioner conceived (vide pars 65 to 68 inclusive) that the proper approach that he should adopt to the DCP depended upon his answers to the following three questions that he posed for himself, namely –

(i) what conclusions should be drawn from the process which had led to the then recent amendment to the DCP (imposing for the first time a particular requirement for maximum carparking for supermarket development);
(ii) what was the appropriate methodology to adopt to assess retail parking demand in respect of the proposed supermarket development, to the end that that demand be added to the other elements of parking demand arising from the development site; and
(iii) what was the proper interpretation of the “ tests posed by the DCP ”.

22 He answers question (i) at par 78 where he states:

I satisfied that, from a consideration of the various documents providing an understanding of the chronology of the review and public consultation process leading to the adoption of these provisions that they were not adopted for the purpose of defeating the present application. The consequence of this conclusion is that I must, therefore, give them considerable weight in my deliberations.

23 He answers question (ii) at par 88 where he states:

Thus, the preferable and significantly more accurate projections for retail parking space demand are those to be derived from consideration of Mr Thomas’s figures.

24 It is to be noted that the reference to “Mr Thomas’ figures” is a reference to the uncontradicted evidence given by Mr Thomas (Woolworth’s General Manager) of trading figures of the existing Woolworths supermarket at Grosvenor Street, Neutral Bay and of his expectation of trading figures of the proposed development (which was expected to take a significant percentage of the trade from the existing supermarket) which evidence is summarised by the Commissioner at paragraphs 45 to 52 inclusive.

25 Having decided upon that methodology for predicting retail carparking demand, the Commissioner at par 99 accepts the unanimous agreement of the three traffic experts that retail parking demand for the proposed supermarket and liquor store would be 79 spaces for the initial life of the development increasing to 90 spaces after 10 years.

26 There was however a difference of opinion among the traffic experts concerning the question of staff parking demand and in particular whether it would be entirely satisfied by off-site parking (as two of the experts opined) or whether some of it (up to 7 spaces) would be satisfied on site (as the Council’s expert, Mr Marshall, had opined).

27 This difference of opinion was settled by the Commissioner’s acceptance (at par 104) of the opinion of the majority of the experts that all staff parking demand would be satisfied by off-street parking.

28 In paragraphs 109 to 112 (inclusive) the Commissioner states his findings as to the methodology he had employed to predict carparking demand for the entirety of the proposed development which had yielded the following demands (pars 111 and 112):

Parking Demand	(i) Initial 12 months	(ii) After 10 years
(i) Commercial	42	42
(ii) Retail	79	90
(iii) On street staff	________15______	_____ 15 _____
Total demand	136	147

29 The Commissioner’s finding in respect of commercial space carparking demand reflected his acceptance of Mr Marshall’s evidence on this matter which is summarised at pars 93 to 95 as follows:

93 However, Mr Marshall has applied differing bases for calculation of the parking demand for the commercial space at the time that the initial consent was granted in 1985 and that which he considers appropriate to be applied at the present time.

94 He does this by taking the gross floor area of the commercial space and applying a parking demand calculation based on Roads and Traffic Authority (RTA) information for persons travelling to work by vehicle in the localities he considers the appropriate catchment for employees of tenants of the commercial premises.

95 Applying the 1985 formula to the gross commercial floor area leads to 51 car spaces being required and applying this approach but using the current revised RTA formula would mean that, for the present application, 42 commercial car spaces were now required.

30 Having made these findings on predicted carparking demand in respect of the proposed development, the Commissioner thereafter proceeds (at par 113 to 141) “to apply the tests in the DCP as to the adequacy of parking provisions (par 113). The Commissioner obviously considered that the relevant “tests” were found in item vii of Section 9.2 of the DCP. Although it is to be noted that item vii does not in terms propound any “tests”, it is apparent from what he had said at par 68 that what the Commissioner is here referring to is simply the proper meaning of item vii.

31 I think at this point, in order to appreciate the competing submissions addressing Council’s allegations of misconstruction and misapplication of the DCP that it becomes necessary to recite the entirety of the relevant passages (at par 118 to 141 inclusive) of the Commissioner’s judgment:

118 The matters which arise to be determined from this provision, in my view, are as follows:

· What is the maximum rate for each element in the proposal?

· Is the on-site car parking provided for such element significantly below that required?

· If on-site car parking is significantly below these maximum rates, will this result in unacceptable additional vehicle parking on surrounding residential streets?

· Are these tests to be applied in some cumulative fashion or should they be applied sequentially?

119 In this case, in addition to the parking rates specified in the DCP, the council urges that I should adopt two other bases for calculation of what additional vehicle parking may be transferred to the surrounding residential streets.
120 These, it is submitted, should be based on my acceptance of the validity of and thus my agreement to rely on Mr Marshall's calculations concerning parking demand for the commercial occupancies on the site and what he regards as the transferred off-site parking for staff servicing the retail areas of the site.
121 There is no doubt that the car parking provided for the commercial space is nearly double that required by the DCP’s provisions in cl 9.2.a.v. Indeed, there is a surplus of 10 car parking spaces in this regard.
122 With respect to the retail component, application of the supermarket rate in the Schedule linked to cl 9.2.a.iii of the DCP and the rate in cl 9.2.a.v to the liquor outlet requires the provision of 137 car spaces.
123 Critical to the last test is the use of the words “ rates ” in cl 9.2.a.vii rather than some other formulation of words. The range of rates in 9.2 envisages, amongst other things, mixed developments of varying commercial types or of mixed residential/commercial composition. The provision does not say “ the total of the maximum rates for a site ” which would lead to an aggregation of consideration of parking impacts rather than separate consideration of each type of impact.
124 As a consequence, I consider it appropriate to test the adequacy of each of the elements of parking generated by the site, separately, against the tests to whether an element will transfer additional vehicle parking which will have an adverse impact on surrounding residential streets.
125 The first matter, therefore, was the issue of the adequacy of the commercial car parking spaces. I note that these spaces are more than sufficient to comply with the requirements of the DCP.
126 There was disagreement between the experts as to whether or not Mr Marshall's calculation of a significantly higher level of demand than that required by the DCP was appropriate. However, if adequate on some basis when tested against these numbers, this disagreement is rendered irrelevant.
127 I note that the RTA guidelines calculations at the time of the original consent, when the same council parking requirements applied, is significantly higher, by 9 car spaces, than that which would apply from the present RTA guideline calculations undertaken by Mr Marshall.
128 As a consequence, I am satisfied that, even if compliance with the DCP numbers were not sufficient (which I consider it is), the commercial based parking spaces more than satisfies the requirements of cl 9.2.a.vii. I have so concluded because of the fact that the generated demand on the alternative calculations on the 1985 and the 2005 RTA guidelines demonstrates that there is, on those calculations, as a result broader public policy application (consistent with objective contained in cl 9.2.a), a reduction in the requirement for commercial car parking spaces on the site.
129 As a result, nothing arises from the commercial car parking spaces which would warrant rejection of the application.
130 With respect to be retail parking provision, there is, on the basis of the calculations set out above earlier in this decision, a shortfall of 47 car spaces.
131 There is no doubt that this is significantly below the relevant maximum rate to rise from application of cl 9.2.a.iii and the Schedule referred to therein. However, I am satisfied that the simple numerical calculations are not the end of the matter. What is necessary, for the reasons set out above, is to test whether, as a matter of fact, acceptance of such a shortfall would result in unacceptable additional vehicle parking impacts on surrounding residential streets.
132 In this regard, the agreed parking calculations derived from Mr Thomas’s evidence are critical. They demonstrate that, at commencement of operation of the Rangers Avenue supermarket, there would be a demand for 79 car spaces for servicing the entire retail area. This is 11 car spaces less than the 90 that will be available.
133 The available 11space surplus also does not make any allowance for the disabled car parking spaces on Rangers Avenue or the availability during evenings at least after 6 p.m. of the 17 commercial car spaces.

134 Accepting the calculations based on the commercially best (and parking worst) outcome for the applicant in 10 years time, the totality of the car parking demand is that 90 spaces will be required. This also does not take into account the other additional availability is noted above.
135 As a consequence, although ordinarily I accept that one would only test acceptability on a present case basis, I satisfied that, in 10 years time, there will be satisfactory on-site parking for retail customer servicing.
136 Whilst I do not have any information as to the cycle of parking demand, it is not unreasonable to assume that some element of that is able to be absorbed by the two disabled car parking spaces and, in the evenings, by the availability of the freed-up commercial car parking spaces.
137 In addition, it was the agreement of the experts that I should base my assessment on these numbers as being representative of the actual demand.
138 I am therefore satisfied that there will not be an additional (or any) unacceptable impact caused to surrounding residential streets of the shortfall from the maximum rate of car space provision for the supermarket and liquor component of the proposal.
139 As to staff parking, I have concluded, for the reasons set out earlier, that I should prefer the evidence of Mr Morse and Mr Rogers on this point. As a consequence, there is at least an equal impact of the prior retail uses compared to that of the proposed uses. In favour of the applicant, it is possible that there may be a decrease of one off-site car space demand to service the parking the staff of the proposal compared to the proprietor and staff parking demands under the previous retail uses.
140 This issue, without doubt, should, however, be regarded as neutral. It certainly does not create any additional adverse vehicle parking impacts on surrounding residential streets.
141 In total, therefore, I have concluded that on any proper construction of cl 9.2.a.vii, it is appropriate to accept the provision of car spaces on the site as envisaged by the application as there will be no additional adverse vehicle parking impacts on surrounding residential streets as a consequence of the application either at present time or 10 years hence.

C. THE COMPETING ARGUMENTS

32 Fastening upon what is said at pars 123 and 124 the Council submits that “by disaggregating the parking provision rates for each component of the development” the Commissioner has misconstrued or misapplied the provisions of Section 9.2 item vii of the DCP. In elaboration of this submission, it is argued that “when considering the impact of the proposed development on the surrounding area it is artificial to ascertain whether the on street accommodation of the shortfall in parking provision by each separate use generates an acceptable impact (individually), when in fact the environmental impact is experienced as an aggregate. This is reflected in the phrase due to the impact that additional vehicle parking may have on surrounding residential streets in cl 9.2a. vii.

33 The Applicant’s competing argument is that the Commissioner fully considered the relevant provisions of the DCP and although he adopted a particular construction of the relevant provision, his consideration of the provision and his application of it to his findings of fact also accommodated the interpretation that the Council had contended for. Moreover, the Commissioner’s ultimate finding (as expressed in par 141) was entirely open to him on the state of the expert evidence and on his findings of primary fact based upon that evidence. In respect of this last mentioned matter, it was submitted that the Commissioner was entitled to prefer the opinions of two of the traffic experts over the contrary opinion of the third traffic expert in respect of matters upon which they did not agree.

34 Finally, as earlier noted, the Applicant submitted that the Council’s case rose no higher than dissatisfaction with the Commissioner’s ultimate finding of fact, which was unavailing in the context of an appeal confined to error of law.

D. CONCLUSIONS AND ORDERS

35 In my judgment and for the reasons that I will elaborate, no error of law has been demonstrated in the Commissioner’s judgment, including more particularly in the manner that he understood and applied the relevant provisions of the DCP in arriving at his ultimate finding expressed in par 141 of his reasons for judgment.

36 Although it is not entirely clear to me from the extended passage from the Commissioner’s reasons that I have recited (especially at par 123) precisely what construction of the relevant provision of the DCP was adopted, it is clear how the provision was considered and applied by the Commissioner in arriving at his ultimate finding, and in my judgment, neither that consideration nor that application reveals legal error. Or to put the matter slightly differently, even if there were some suggestion of misconstruction of the relevant provision of the DCP that misconstruction was corrected by the manner in which the Commissioner considered and applied the provision of the DCP so that in the result, any such misconstruction was immaterial to, and hence, did not vitiate the Commissioner’s decision.

37 In applying the relevant provision of the DCP, the Commissioner properly identified what “maximum” parking rates were specified, namely rates for “non residential uses” (“commercial space”) and “supermarket” (“retail”) and properly quantified the relevant maximum rates, namely 11 carspaces for the “commercial space” and 137 carspaces for the “supermarket”.

38 Those quantified maximum rates of 11 and 137 spaces respectively are to be compared with the on-site carspaces provided by the proposal, namely 21 spaces for the commercial space and 90 spaces for the supermarket (par 89) noting that most of the 21 spaces would become available to the supermarket patrons outside times of normal operation of commercial usage (par 90).

39 In respect of these two separate elements of on-site carparking demand, the Commissioner concluded that the proposed commercial space parking (21 spaces) “more than satisfies” the maximum parking required by the DCP (par 128) and that the proposed supermarket parking (90 spaces) was “significantly below” the specified maximum rate (par 131). I interpose that there is, and can be, no challenge to these findings.

40 Moreover, it is important to note that there is no challenge to the Commissioner’s reliance upon his finding (based upon the unanimous opinion of the traffic experts) that actual carparking demand for the supermarket would be 79 spaces (initially) rising to 90 spaces (after 10 years of the development) to support his conclusion (par 138) that there would not be any additional (or any) unacceptable impact on the surrounding residential streets caused by the shortfall below the maximum rate required by the DCP for the supermarket.

41 Despite these circumstances of the case, the Council’s argument is that the Commissioner has misconstrued or misapplied the relevant provision of the DCP because he has construed and applied that provision distributively rather than globally or cumulatively. But this argument really goes nowhere because if the DCP provision is applied distributively, it yields no shortfall for the commercial space parking requirement and a shortfall of 47 spaces (representing 34 percent) for the supermarket parking requirement whereas if the DCP provision is applied globally or cumulatively, it reveals an overall shortfall of 37 spaces (representing 25 percent). In other words, applying the DCP provision distributively in the present case maximises the extent of the shortfall whereas applying the DCP globally or cumulatively in the present case minimises the extent of the shortfall.

42 But in truth, the essence of the Council’s complaint is the apparently different manner in which the Commissioner applied to his consideration of the DCP provision his findings of actual carparking demand of the proposed development in respect of the two elements of parking demand, namely for the commercial space and for the retail space. Clearly, he applied his finding of actual carparking demand for the supermarket to conclude that the significant shortfall from the maximum rate specified by the DCP provision would not involve any additional (or any) unacceptable impact on the surrounding residential streets. Equally clearly, the Commissioner did not apply his finding of actual carparking demand for the commercial space: see pars 125 to 129 (inclusive).

43 Having regard to the fact that it was not in dispute that the maximum carparking rate prescribed by the DCP for commercial space was 11 and the proposal included 21 spaces and hence there was no question of any shortfall (see par 125), it is somewhat surprising that in pars 126, 127 and 128 the Commissioner appears to revisit the question of assessing on-site carparking demand for the commercial space component of the proposal, especially in the light of his earlier finding at par 109 adopting Mr Marshall’s opinion (summarised at pars 93 to 95) of a parking demand for 42 spaces. Whatever may be the relationship of, or explanation for, these two separate suites of findings on the question of on-site carparking demand in respect of the commercial space component of the proposed development, I do not think that the Commissioner misconstrued or misapplied the relevant DCP provision in the manner contended for by the Council in making his factual findings in respect of the carparking requirements for the commercial space component of the proposal, either when considered in isolation (as at pars 125 to 129) or when considered as part of the overall evaluation of carparking (as at par 141).

44 In so concluding, I would emphasise that the Council’s argument on this appeal does not assert any error of law, as a matter of principle, in the manner that the Commissioner factored into his consideration and application of the relevant DCP provision his findings of the actual parking demand of the proposed development. (As I have earlier noted, the Council’s complaint is that whereas the Commissioner factored in his finding of actual parking demand for the retail component, he did not do so in respect of his finding of actual parking demand for the commercial space component.)

45 The Commissioner’s approach to the relevant statutory phase in the DCP provision (which was consistent with the manner in which the parties presented their respective cases) was “to test, whether as a matter of fact, such a shortfall (ie a shortfall of 47 carspaces in respect of the supermarket) would result in unacceptable additional vehicle parking impacts on surrounding residential streets” (par 131). The “test” that he applied was to apply his findings on the actual parking demand of the supermarket (an initial demand of 79 spaces increasing to 90 spaces after 10 years) resulting in his finding (par 138) that there will not be an additional unacceptable impact (because the provision on site of 90 spaces as proposed would not in fact create a demand for additional on-street parking, notwithstanding the shortfall of 47 spaces from the maximum rate of carparking required by the DCP for the supermarket component).

46 It has not been submitted that the Commissioner’s approach in this respect was legally erroneous. (This is not to say that there are not other ways of understanding or applying the relevant statutory phrase, but that question is not raised in this appeal and need not be pursued).

47 Indeed, as recorded in pars 119 and 120, the Council had submitted to the Commissioner that in considering and applying the relevant DCP provision, he should factor in Mr Marshall’s opinions as to (i) the actual parking demand of the commercial spaces; and (ii) the requirements for staff parking. Clearly the Commissioner rejected this submission, as he was entitled so to do.

48 Although, as I have earlier noted, the Commissioner did not factor in his assessment (accepting the opinion of Mr Marshall on this issue) of actual demand for 42 spaces in respect of commercial space as had been contended by the Council, the DCP provision did not require him to consider additional parking impact because there was no relevant shortfall from the prescribed rate in respect of on-site parking for the commercial space.

49 Moreover, even if the Council’s contention had been adopted by the Commissioner, a finding of adverse additional impact on the surrounding residential streets would not have necessarily followed because of the evidence given by at least two of the traffic experts that the commercial space component of the proposed development involved no change to the existing development (which included the same amount of commercial space and the same amount of on-site carparking provided for that space). In this respect, it is noteworthy that in expressing each of his findings of no relevant “additional” impact in pars 138, 140 and 141 respectively, the Commissioner emphasises the word “additional”. This emphasis is entirely consistent with the evidence given by two of the traffic experts that the commercial space component of the proposal would create no change in parking demand from the existing conditions.

50 The Council’s submission that the Commissioner’s ultimate finding as expressed in par 141 is legally erroneous “as a perverse or unreasonable application of law to the facts as found” (see Azzopardi at 157) in my judgment has not been sustained. In so concluding, I would respectfully adopt and apply to the present appeal the analysis of legal and factual error that may be made by a judicial officer whose judgment is appellable only for error of law, that is contained in the classic judgment of Glass JA in Azzopardi at pp 156-157 as follows:

It has been suggested that since judges unlike juries are required to give reasons a perversity of result will or may suggest an error at some stage of the reasoning process and the perversity will then rise to the level of an error of law. It is important, I believe, to remember that whether an error is one of fact or law is determined by legal theory and the theory is the same whether the tribunal be divided or undivided. Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the course of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found.

51 His Honour’s reference in this passage to the “marginal cases” involving error of law in a finding that a statutory test is or is not satisfied is further explained by the following passage appearing earlier in his judgment at 156:

A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57 WN 53 at 55.

52 It is apparent that the Commissioner’s ultimate finding expressed at par 141 was one that was clearly open to him on the state of the expert evidence and on his findings of primary fact based upon that evidence.

53 It is equally clear that that ultimate finding is not the kind of finding of fact that reveals error of law of the nature expounded in Azzopardi. In this respect, the relevant provision of the DCP does not prescribe a statutory description, by reference to which an ultimate finding was required to be made in the case.

54 Indeed, so far from prescribing a statutory description by reference to which an ultimate finding of fact was required to be made, the relevant statutory provision in the present case was a stipulation in the DCP (the contents of which have “to be considered as a fundamental element in, or a focal point of, the decision-making process”: per Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 602) that a significant shortfall of on-site carparking below the prescribed maximum rate “generally will not be accepted….” That stipulation is far from being categorical and operates upon the basis of discretionary value judgments.

55 Once it is appreciated that it is in relation to that stipulation in the DCP that the Commissioner’s ultimate finding at par 141 is to be understood, it readily appears for the reasons that I have given, that that ultimate finding was a finding of fact, and as such it is invulnerable to a legal challenge that is limited to error of law (such as is an appeal pursuant to the Land and Environment Court Act 1979, s 56A).

56 For all the foregoing reasons, I make the following orders

1. Section 56A Appeal dismissed.
2. The Appellant (to the s 56A Appeal) shall pay the Respondent’s costs in the sum agreed, or failing agreement, as assessed.