Flevaris v Hurstville City Council

[1998] NSWLEC 146

Land and Environment Court

of New South Wales

CITATION:	Flevaris & Anor v. Hurstville City Council [1998] NSWLEC 146
PARTIES:	APPLICANT Flevaris & Anor RESPONDENT Hurstville City Council
FILE NUMBER(S):	10079 of 1998
CORAM:	Lloyd J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act 1979, s 56A Environmental Planning and Assessment Act, 1979, ss 90, 97
CASES CITED:	North Sydney Council v Ligon 302 Pty Limited (No 2) (1996) 93 LGERA 23; Mifsud v Campbell (1991) 21 NSWLR 725 (CA) at 728; Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666.; Gosford City Council v Bruce Kerr Pty Limited (Talbot J, 17 December 1996, unreported); Lend Lease Management Pty Limited v Sydney City Council (1986) 68 LGRA 61; Mison v Randwick Municipal Council (1991) 73 LGRA 349 (CA) ; Malcolm v Newcastle City Council (1991) 73 LGRA 356. ; Housing Commission of NSW v Tatmar Pastoral Co Limited [1983] 3 NSWLR 378 (CA) at 385; 53 LGRA 325 at 332; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (CA) at 270; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 334; 11. The duty of a judge of a superior court to give reasons for his or her decision is to be contrasted with the position of assessors of the court. The difference is illustrated by Kirby P in Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 at 368:
DATES OF HEARING:	03/08/98
DATE OF JUDGMENT:	08/07/1998
LEGAL REPRESENTATIVES:	APPLICANT J J Webster O'Hara & Company RESPONDENT P R Rigg (Solr) Deacons Graham & James

JUDGMENT:

1. This is an appeal by the respondent under the Land and Environment Court Act 1979, s 56A against the decision of an assessor of the court. The assessor had allowed an appeal under the Environmental Planning and Assessment Act 1979 (Athe Act@), s 97 against a previous decision of the respondent to refuse a development application for a three storey commercial and residential building at 91 Mulga Road, Oatley.

2. It must be emphasised that an appeal under s 56A is limited to a question of law. The respondent raises five grounds of appeal in which it says that the assessor erred in law in coming to his decision. It is convenient to consider each ground of appeal separately.

Ground 1: That the assessor erred in law in respect of the weight which should be given to Hurstville Development Control Plan No 8 in assessing the development application.

3. The relevant environmental instrument applying to the subject land is the Hurstville Local Environmental Plan 1994 (Athe LEP@). The proposed development is within zone No 3(a)(General Business Zone) and is permissible with the consent of the respondent. Clause 13(2) of the LEP relevantly provides:

A(2) The maximum floor space ratio for a building within zone No 3(a) is 1.5:1 and the maximum floor space ratio of the non-residential component of the building is 1:1.@

4. Development Control Plan No 8 (Athe DCP@) applies to development in zone No 3(a)(General Business Zone). It contains two parts: Part 1 relating to floor space control and Part 2 relating to the number of storeys. The floor space control in Part 1 provides:

AThe residential floor space ratio within all 3(a) General Business Zones in the City of Hurstville excluding the Beverly Hills and Riverwood Town Centres must not exceed 0.5:1.@

Part 2, governing the number of storeys provides:

ADevelopment within 3(a) General Business Zone in the Peakhurst Ward of the City of Hurstville excluding Riverwood must not exceed two storeys.@

5. There was evidence, which the assessor accepted:

(i) that the DCP had been adopted in order to restrict development in the zone to two storeys;

(ii) that the respondent (the Council) had previously sought to amend the LEP so as to limit the height of buildings within the zone to two storeys; and

(iii) that the Department of Urban Affairs and Planning had advised the respondent that such a proposal was inconsistent with the Minister=s determination under s 71 of the Act that floor space ratios are the only development standard for commercial development which may be included in LEPs, it was inconsistent with direction G10 under s 117 of the Act as the height limit would make it difficult to achieve the permissible floor space ratios in the 3(a) zone, and it was inconsistent with the State Government=s Urban Consolidation Policy.

6. The proposed development comfortably complies with the overall floor space control of 1.5:1 described by the LEP, cl 13(2). The residential component is 0.94:1 and the non-residential component is 0.54:1, again comfortably complying with cl 13(2). The proposed development does not, however, comply with the DCP. The residential component exceeds 0.5:1 and, importantly, the proposed building contains three storeys.

7. The assessor deals with the weight to be attributed to the DCP in the following passages in the judgment:

AAs previously stated the critical issue in this matter is the weight to be given to the DCP 8 which would have the effect of restricting the development to two storeys.

It is apparent to me that the introduction of this DCP is an attempt to circumvent the provisions of the current LEP cl 13 provisions in terms of the FSR development standards. As such it creates a fundamental inconsistency between these two planning instruments.

In order to determine this aspect, there was no background detail put before the Court to substantiate DCP 8. Instead there is a consistent theme of rejection of Council's desire to limit the height in the 3(a) Zone by DUAP which is presumably taking into account the overall public interest for the region.

On the basis of the DUAP rejection of the two-storey height control and the fact that the provisions of an adopted LEP would generally take precedence over a DCP, I consider that in this case the LEP is the predominant planning instrument.@

8. Mr P R Rigg, who appears for the appellant (the respondent in the proceeding before the assessor) submits that there is no inconsistency between the DCP and the LEP; that the assessor had concluded that because the Department of Urban Affairs and Planning had not agreed to a height control in the LEP then the DCP should not be given more weight than the LEP; that the assessor failed to give Aproper, genuine and realistic consideration@ to the application of the provisions of the DCP; and that the assessor had in truth given no weight to the DCP.

9. Mr Rigg=s reference to the need to give a Aproper, genuine and realistic consideration@ to the provisions of the DCP derives support from North Sydney Council v Ligon 302 Pty Limited (No 2) (1996) 93 LGERA 23. In that case, Cole JA (with whom Meagher JA and Abadee AJA agreed) referred (at 28) to the need for a judicial officer to give a Aproper, genuine and realistic consideration@ to a development application, having regard to the need to take account of the provisions of any relevant development control plan.

10. It is important to note, however, that Cole JA was considering an appeal from a judgment of a judge. The duty of a judge to disclose the reasons for a decision is more onerous than that imposed on a lay assessor. In North Sydney Council v Ligon 302 Pty Limited (No 1) (1995) 87 LGERA 435, Kirby ACJ referred to the duty of a judge to give reasons (at 442):

AThis court has held many times that it is an incident of judicial duty to give reasons which extend to expressing findings upon issues which are critical to the point in contention in the case: see for example Mifsud v Campbell (1991) 21 NSWLR 725 (CA) at 728f. Y

I have reservations in extending the current immunity against the obligation to give reasoned decisions, enjoyed by pure administrators, to a judicial officer of a superior court. Cf Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666. Whilst it is true that the judge is substituted for the consent authority and is making, in effect, an administrative decision, it is a decision inescapably made by a judge. As an incident of the judical office, the judge is expected by the community to give reasons which sufficiently demonstrate the lawfulness of what he or she has done. Housing Commission of NSW v Tatmar Pastoral Co Limited [1983] 3 NSWLR 378 (CA) at 385; 53 LGRA 325 at 332; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (CA) at 270.@

11. The duty of a judge of a superior court to give reasons for his or her decision is to be contrasted with the position of assessors of the court. The difference is illustrated by Kirby P in Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 at 368:

ASecondly, 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. Increasingly, courts have to review, on questions of law, expert specialist tribunals. Thus the Federal Court of Australia must review, on questions of law, decisions of the Administrative Appeals Tribunal. This court has functions to review on questions of law the Government and Related Employees Appeals Tribunal, certain decisions of the Land and Environment Court and other bodies. There are powerful reasons of policy, quite apart from loyalty to the statutory language, that would suggest restraint in criticising the language used in their decisions by lay tribunals.

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.@

In Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138 and in Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 283, Stein J expressed the opinion that the Afine tooth comb@ approach should not be employed when examining decisions of technical assessors for errors of law.

12. Accordingly, the reference by Cole JA in Ligon (No 2) to the need for a Aproper, genuine and realistic consideration@ in the taking into account of a development control plan must be understood as being specifically directed to the reasons for judgment of a judge of a superior court. Consistently with the principles explained in par 11 above, I do not consider that the same standard should be expected of a lay assessor, as if the judgment was written by a lawyer.

13. There is no doubt, in the present case, that the assessor gave consideration to the DCP. He makes reference to a fundamental inconsistency between the DCP and the LEP. There was evidence by one of the expert witnesses called by the respondent (the Council), Mr M Neustein, that there was an inconsistency between the DCP and the LEP. Mr Neustein gave the following evidence in the course of his cross-examination:

AQ. -- That DCP is totally inconsistent with the LEP, Hurstville LEP?

A. Yes, I agree with that.@

In re-examination, Mr Nuesein gave the following evidence in relation to the inconsistency between the DCP and the LEP:

ARigg: Q. Is it an inconsistency in relation to height control?

A. No, it=s an inconsistency in the likely relationship with built form, because at a floor space ratio of 1.5 to 1 unless one covers huge part portions of the site it=s very hard to do that without going up. And I think that it=s inconsistent in that between the LEP and the DCP, and the DCP put a two storey limit on development and that would make it quite difficult to achieve with ease and meeting council parking requirements that it might make it quite hard to achieve a .75 - sorry, a 1.5 to 1 FSR. So that=s an inconsistency between the DCP and the LEP. A DCP then has other restrictions, but I mean that=s the degree of inconsistency is really in the setting of a height limit.@

Mr Neustein expresses the opinion elsewhere in his evidence that it is hard to achieve a floor space ratio of 1.5:1 in two storeys.

14. As I understand the evidence of Mr Neustein it was that there was an inconsistency between the two instruments. There was thus clear evidence to support a conclusion that there was an inconsistency between the two instruments. I do not regard the use by the assessor of the phrase Afundamental inconsistency@ in the judgment as being so different from the evidence that he was led into error. To so construe the assessor=s words would be to infringe the principles described by Kirby P in Brimbella and by Stein J in Coles and in Cawley, noted in par 11 above.

15. There is no doubt that a DCP is one of the matters which must be taken into consideration in determining a development application (s 90(1)(a)(iv) of the Act). The assessor decided that the LEP would take precedence over the DCP; or, as he said: AY the LEP is the predominant planning instrument.@ The relative weight to be given to each relevant consideration under s 90 of the Act is, however, a matter for the decision maker, in this case the assessor.

16. The mis-attribution of weight to be given to portions of the evidence does not necessarily amount to an error of law: see, in particular, Ladhams v State Planning Authority (1982) 52 LGRA 32 at 35, per Wells J, with whom King CJ agreed. This principle has been followed and applied in this Court by Stein J in Coles v Woollahra Municipal Council at 140:

AI will come now to the grounds of appeal relied on insofar as it is alleged that the decision is against the weight of the evidence (when properly evaluated and balanced) or that the weight to be attached to portions of the evidence, particularly the fencing code and facades policy, has been misapplied. Carefully considering the evidence before the assessor and her reasons for decision I am unable to conclude that the grounds alleged are made out. Additionally, I must say that I have reservations in concluding that the complaints made by Mr Schofield could amount to errors of law and I have in mind what is said by Wells J in Ladhams v State Planning Authority Y A.

17. In Tabag v Minister for Immigration (1982) 45 ALR 705; 70 FLR 61, Keely J in the Full Court of the Federal Court said (at 715-717) that the weight to be given to a relevant consideration is a matter for the tribunal of fact and not for a court limited to an appeal on a question of law. If insufficient weight is given to an important relevant consideration that is not a question of law. In the same case Jenkinson J said (at 727) if a mis-attribution of relative weight is given to a relevant consideration, that does not necessarily involve an error of law: it is only an error of law if it infects the decision to an extent that it is one to which on the facts found no reasonable mind could have come.

18. Similarly in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Mason J said (at 41):

AIt follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.@

Mason J goes on to say, however, that the Amanifestly unreasonable@ ground may exist if it can be demonstrated that the weight given to a decision amounts to a decision which is so unreasonable that no reasonable person could come to it. Mr Rigg sensibly does not rely on manifest unreasonableness as a basis for impugning the assessor=s decision.

19. The decision in Tabag was approved by Clarke JA in Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 334. Clarke JA also said (at 335):

AThere was no statutory or other obligation upon the assessor to deal with each of the matters listed in s 90(1) of the Planning Act. He was invested with the power of determining which of the factors mentioned in that subsection were relevant to the appeal being heard by him and he was also entitled to accord to those which he found relevant such weight as he concluded was appropriate.@

20. Consistently with the abovementioned principles, I do not think that any perceived mis-attribution of weight to the DCP by the assessor in this case amounts to an error of law. It was open to the assessor to conclude that there was an inconsistency between the two instruments and it was also open to the assessor to attribute such weight as he saw fit to the DCP in the context of the relevant considerations and in particular the merit considerations. Accordingly, the first ground of appeal fails.

Ground 2: That the assessor erred in law in failing to give any consideration to cl 9 of the Hurstville Local Environmental Plan 1994.

21. Clause 9 of the LEP provides as follows:

AThe council may only grant consent to the development of land where it has taken into consideration any planning and design principles or policies adopted by the council from time to time which may be relevant to the particular development.@

22. Mr Rigg submits that the assessor failed to apply this clause in that he failed to give proper consideration to the provisions of DCP No 8. It does not seem to me, however, that a development control plan is a planning and design principle or policy to which cl 9 refers. The use in cl 9 of the phrase Aplanning and design principles or policies@ suggests something other than a development control plan. It seems to me that the framer of cl 9 has deliberately chosen not to use the well recognised and well understood phrase Aany development control plan@, a description which is given statutory authority under s 72 of the Act. Moreover, a council is in any event required to take into consideration any development control plan which is in force (s 90(1)(a)(iv) of the Act). There is simply no need to repeat such a statutory obligation in an environmental planning instrument. I thus conclude that the reference in cl 9 to Aany planning and design principles or policies adopted by the council@ is not a reference to

a development control plan in force under s 72 of the Act. Mr Rigg does not assert that there is any other relevant principle or policy adopted by the council to which cl 9 refers.

Ground 3: That the assessor erred in law in holding that a provision in the Hurstville Development Control Plan No 8 could not be inconsistent with the provision in the Hurstville Local Environmental Plan 1994.

23. This ground of appeal appears to be based on an assumption that the assessor held that there could not be a fundamental inconsistency between the DCP and the LEP. I do not understand the assessor to have so decided. I referred under Ground 1 above to evidence which shows that there was an inconsistency between the two instruments. The assessor describes it as Afundamental inconsistency@. He does not say, however, that the DCP could not be inconsistent with the LEP. That is to say, the assessor does not make any finding of invalidity of the DCP. As noted under Ground 1 above the assessor=s decision amounts to giving precedence to the provisions of the LEP, which decision does not amount to an error of law.

Ground 4: the Assessor erred in law in failing to give proper consideration to the amenity of the single storey dwellings at 89-93 Mulga Road on the basis that these parcels of land were zoned 3(a) under the Hurstville Local Environmental Plan 1994.

24. I set out below the assessor=s consideration of the impact of the proposed development upon the adjoining dwellings:

ANevertheless, I accept that compliance with the numeric standards does not automatically guarantee approval. In this case the proposed development, being part three-storey, with zero frontage and side boundary setbacks, does have an impact on the adjoining properties. Whilst they are existing residential dwellings and have obvious redevelopment potential, No. 89 is currently being used for commercial operations and has not objected to the proposal. It is subject to the appearance of a blank two-storey wall on its eastern boundary so the new wall would be consistent with that. Insofar as it will be subject to more shadowing, I think the incremental increase is small and in any case it has a large back yard where access to sunlight could be available if the building was to revert to residential use.

Regarding No. 93, the owner Mrs Fielder said that whilst it was currently two flats she was aware of its longer term commercial development potential. On the view it was apparent that the main living areas of No. 93 are oriented away from the subject building and the building does have a large rear yard where reasonable solar access is available. On its western boundary there is also a wall of a commercial building along this boundary and therefore I was not convinced that there would be undue disamenity to these adjoining properties and in this regard I rely on the evidence of Mr Fletcher and Mr Pappas.

Insofar as the residents objected to the third storey, I was not convinced that the inclusion of these two extra units on the second floor level would ruin the village atmosphere. The commercial strip covers three blocks on the southern side of Mulga Road, between Myall and Waratah Streets and that would be the main pedestrian route to enable neighbour interactionCI note that the footpath on the northern side adjacent to the residential property is not continuously paved.

Under these circumstances it seems that the majority of the commercial properties have an awning and in normal pedestrian movements, the second level units would not be readily discernible. In this regard I have also made allowance that the existing residences are likely to be developed in the future in accordance with the zoning and this would allow other people to experience and contribute to the character of this neighbourhood.

My assessment of the evidence and observations on the view is that whilst the proposal represents a change to the type of development that exists in this small commercial precinct, it is nevertheless the type of development envisaged by the planning controls in LEP 1994, which after all is not such an old planning instrument. If this form of development is to be changed then the appropriate procedure would be by way of a set of consistent planning instruments, which reflect the overall public interest considerations.@

25. I cannot detect any error of law in the assessor=s reasons which I have quoted above. The assessor made findings of fact to the effect that the physical impact of the proposed development upon the amenity of the adjoining property would be acceptable. The assessor also takes into account the zoning applicable to those properties, this being a matter which he was required to take into consideration (s 90(1)(a)(i) of the Act). The assessor=s reasons are not based solely on the fact that these parcels of land were zoned 3(a) under the LEP. That is only one of the various considerations which the assessor took into account and to which he refers. As I have said, these reasons do not disclose any error of law, but on the contrary disclose findings of fact which I am unable to disturb.

Ground 5: That the assessor erred in law in imposing condition 40 on the development consent.

26. Condition 40 of the development consent granted by the court provides as follows:

AThe front facade of the proposal is to be redesigned either in a style relating to the early 20th Century buildings in the immediate locality or in a (contemporary) style, to the satisfaction of the Director of Planning of the Council.@

27. Mr Rigg submits that this condition defers an essential topic of environmental consideration for future determination, leaving potential for a significant change to be made to the development. The ultimate form of the development was thus uncertain, so that the consent of which the conditions form part was not a consent within the meaning of the Act and was accordingly invalid. He referred to Gosford City Council v Bruce Kerr Pty Limited (Talbot J, 17 December 1996, unreported). To this might be added Lend Lease Management Pty Limited v Sydney City Council (1986) 68 LGRA 61; Mison v Randwick Municipal Council (1991) 73 LGRA 349 (CA) and Malcolm v Newcastle City Council (1991) 73 LGRA 356.

28. Mr J J Webster, who appears for the applicant, submits that condition 40 was tendered by the respondent at the hearing before the assessor as one of the conditions which it sought to be imposed upon any grant of development consent by the court, in the event that the assessor decided to allow the appeal and grant consent. There was simply no issue in the proceeding before the assessor about any of the draft conditions of development consent suggested by the respondent. Mr Webster submits that the first occasion on which the validity of the condition was questioned was in the present appeal. Mr Webster=s submission is confirmed by an examination of the transcript of the proceeding before the assessor. Mr Webster submits that the respondent is bound by its conduct of the case before the assessor and cannot now raise in this appeal for the first time a question of law which was not raised before the assessor. He referred to Page v Parkes Shire Council (1991) 72 LGRA 97 and to Australand Holdings Pty Limited

v Hornsby Council (Lloyd J, 18 June 1998, unreported).

29. Page v Parkes Shire Council was an appeal under s 56A of the Land and Environment Court Act against the decision of an assessor. Cripps J identified the question in the case as whether a question of law can be raised in the appeal which was not raised before the assessor. Cripps J noted (at 102) that it would have been open to the council=s representative in that case to have submitted not only that it was not open to the assessor to make the determination he did, but that if his submission were not accepted the assessor ought to refer the question to a judge of the court for decision. Cripps J held that the council ought not to be permitted to raise the question for the first time in the appeal and continued (at 102):

ALeaving to one side questions of law going to jurisdiction and questions of law arising in a judgment for the first time, ordinarily it is not open to a litigant to raise a question of law on appeal not raised at the hearing. Y To those who would assert that upon that finding there may appear to have been an injustice in the present case, I would respond that there would have been no injustice had the question of law been identified by the lawyers appearing before the assessor and, preferably, referred to a judge before the matter was disposed of by the assessor. But however that may be, the discharge of the Court=s business and the general fairness to future litigants dictates, in my opinion, that the Court adhere to the general rule that questions of law not raised in the proceedings cannot, save in the most exceptional circumstance, be permitted to be raised on appeal.@

30. In coming to the abovementioned conclusion in Page v Parkes Shire Council Cripps J relied upon the earlier decision of Stein J in Coles v Woollahra Municipal Council, in which Stein J refused to entertain as much of an appeal under s 56A as concerned matters not raised before the assessor. Cripps J also applied the decision of the High Court in Coulton v Holcombe (1986) 162 CLR 1 and University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481.

31. In University of Wollongong v Metwally the High Court (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) held (at 483):

AIt is elementry that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.@

32. In Coulton v Holcombe (at 8) Gibbs CJ, Wilson, Brennan and Dawson JJ followed University of Wollongong v Metwally in holding that parties to litigation were bound by the conduct of their case at the trial. One of the considerations which the court considered relevant and which was not adverted to in Metwally, was the interests of finality in litigation.

33. In Holcombe v Coulton (1988) 17 NSWLR 71, McHugh JA (with whom Samuels (substantially) and Clarke JJA agreed) said (at 77-78):

AUnder the adversary system of justice, the function of the trial court is to determine disputes in respect of issues formulated by the parties, and the function of an appellate court is to correct any error of the trial court in making its determination. Y

To allow a party to raise in an appellate court a matter which was not litigated in the trial court not only undermines the respective functions of the trial and appellate courts and the policy of law but perhaps more importantly it deprives the appellate court of the benefit of the views of the trial court.@

34. I applied the abovementioned principles in Australand Holdings Pty Limited v Hornsby Shire Council in refusing an application by the council for an extension of time within which to institute an appeal under s 56A of the Land and Environment Court Act. The proposed appeal was against the imposition of a condition of development consent by an assessor of the Court, which condition had been propounded by the Council at the hearing.

35. In this case, therefore, I refuse to entertain this ground of appeal since the condition which the respondent now seeks to impugn was propounded by it at the hearing before the assessor and there is nothing raised by Mr Rigg which would suggest that there is any exceptional circumstance as referred to in Metwally and Page.

Orders

36. It follows that the appeal must be dismissed with costs. I therefore make the following orders:

(1) Appeal dismissed.

(2) Order that the respondent (the appellant in this appeal, Hurstville City Council) pay the applicant=s costs of the appeal.