Foreman v Council of the Municipality of Ku-Ring-Gai

[1989] NSWLEC 201

Land and Environment Court

of New South Wales

CITATION:	Foreman v Council of the Municipality of Ku-Ring-Gai [1989] NSWLEC 201
PARTIES:	APPLICANT Foreman RESPONDENT Council of the Municipality of Ku-Ring-Gai
FILE NUMBER(S):	20389 of 1988
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act Environmental Planning and Assessment Act Local and Environment Court Act
CASES CITED:	Azzopardi v Tasman UEB Industries Limited 1985 4 NSWLR 139); Guven v Goodyear Tyre and Rubber Company (Aust) Limited Court of Appeal unreported December 1987); Haines v Leves & Anor 1987 8 NSWLR 442; Warley Pty Limited v Adco Constructions Pty Limited (Court of Appeal 21 October 1988 unreported); Randwick Municipal Council v Effee Manousaki 26 September 1988 Court of Appeal unreported). ; Soulemezis v Dudley (Holdings) Pty Limited 10 NSWLR (1987) 247)
DATES OF HEARING:
DATE OF JUDGMENT:	06/01/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: On 2 August 1988, the appellant appealed to the Court in its Class 2 jurisdiction against the deemed refusal of the Ku-ring-gai Council to give building approval for the construction of a tennis court on her land at 10 Marion Street, Killara.

The matter came on for hearing before Assessor Stewart on 31 October 1988. The Council claimed that the land was unsuitable because of its slope; that the court would be too close to the boundaries of the land and that its construction would result in a loss of trees. The hearing extended over a period of three days and on 4 November 1988, the Assessor dismissed the appeal and published his reasons. I set out the Assessor's reasons:

"This matter involved a variety of arguments about such issues as visual privacy, noise impact and drainage. However the fundamental question which the court must decide is whether certain vegetation should be destroyed in order to allow construction of an ancillary building on the subject site. The value of several trees must be weighed against that of a tennis court, a sterile rectangular prism.

Having carefully considered all the evidence and submissions and viewed the site, I have concluded that three trees, the Metasequoia glyptostroboides, the Liquidamber styraciflua and the Grevillea robusta have considerable value in terms of usefulness and intrinsic natural worth. And here I refer to Ashby 1978, the reference for which I have already given. They are useful in that they contribute to the visual amenity of the precinct and form part of a depleted ecosystem; and they have intrinsic worth in terms of being excellent individual specimens of their species. In my opinion, the applicant did not show that the proposed tennis court had a value which exceeded that of the trees. No explanation of the need for the court was forthcoming.

On the balance of probabilities I have concluded that the public interest in conserving these trees outweighs the applicant's desire to construct the tennis court. I am not convinced that the proposed perimeter landscaping could adequately replace the existing mature trees which are near the centre of the site. In any case, as living individuals these trees should not be killed without a good and sufficient reason. I have found no such reason. I therefore believe that the tennis court would have an undue environmental impact on the precinct and that the application should be refused, and I make the following orders:

1. That the appeal be dismissed.

2. That the exhibits may be returned."

Although not stated in the judgment, the assessor was obliged to determine the appeal in accordance with Part XI of the Local Government Act. Because development consent was not required under the Environmental Planning and Assessment Act, the assessor was obliged to have regard to, inter alia, "whether any trees on the site should be preserved" (Local Government Act s 313(2)(f)).

On 1 December 1988, the appellant appealed to the Court pursuant to the provisions of s 56A of the Land and Environment Court Act. An appeal under s 56A is limited to questions of law. In the statement of grounds of appeal, it was alleged that the assessor erred in failing to take into account relevant material, that he misdirected himself as to relevant considerations and that he erred in failing to give adequate reasons for judgment. On 22 February 1989, the grounds of appeal were particularised in a document which set out the gravamen of the appellant's complaint viz that in determining the appeal the assessor gave undue weight to the preservation of trees and no weight or insufficient weight to other factors. It was alleged that the assessor had erred as follows:

the to the construction of the tennis court. have 313(1) and (2) of the Local Government Act 2. In failing to give adequate consideration to matters listed in section 313(1) and In particular, it was alleged that the Mr Ingham.

failing to give "adequate consideration" the views of Mr Ingham and Mr Burgess and he failed to take into account relevant as referred to in those 4. In giving overriding weight to the of the destruction of certain law. The Court of Appeal has held that it is not an error of law for a decision maker to give undue weight to one piece of evidence. Furthermore, a question of law is not involved where a tribunal of fact makes a finding which no reasonable decision maker could make on the evidence unless the finding of fact involves the application of a legal standard and the unreasonableness indicates the tribunal of fact has misapplied the correct standard. But even in such a case, a question of law arises only in respect of the ultimate fact falling for determination and not in respect of the establishment of a primary fact (see Azzopardi v Tasman UEB Industries Limited 1985 4 NSWLR 139). The rule, as articulated by the majority in Azzopardi, has been the subject of comment by some members of the Court of Appea

l. It has been suggested, at least so far as the Workers Compensation Act is concerned, that the legislation should be amended to permit, by leave, review of decisions not raising questions of law (see Guven v Goodyear Tyre and Rubber Company (Aust) Limited Court of Appeal unreported December 1987). In Haines v Leves & Anor 1987 8 NSWLR 442, Street CJ suggested Azzopardi may require reconsideration in the future. However, in Warley Pty Limited v Adco Constructions Pty Limited (Court of Appeal 21 October 1988 unreported), leave to challenge the correctness of the Court's decision in Azzopardi was refused by a majority. The Court of Appeal held that Azzopardi is to be applied to appeals on questions of law arising under the Land and Environment Court Act (see Randwick Municipal Council v Effee Manousaki 26 September 1988 Court of Appeal unreported).

In an endeavour to circumvent the obstacle presented by Azzopardi, it was submitted that the assessor erred in law in misdirecting himself as to the nature of his function. It was submitted that the assessor determined that trees had some "intrinsic worth" and that he characterised the issue before him as trees against tennis courts and not whether a tennis court should be permitted on the subject land. It is submitted that the terms of the judgment demonstrate that the assessor lost sight of the fact that he was required to determine a building application under Part XI of the Local Government Act. Secondly, it is said that he was in error in determining that in order to get building approval, the appellant was required to discharge an onus that she "needed" the tennis court. In this regard, I was referred to parts of the transcript in which the assessor asked a number of questions of Mr Ingham, a planner retained by the applicant, directed to Mr Ingham's understanding of the appellant's "needs" as opposed t

o her "wants".

As I have said above, the real ground of appeal is that the assessor gave undue weight to the preservation of trees. Conformably with the authorities I have referred to above, such a finding, if wrong, would not amount to an error of law, even if the views of the assessor could be characterised as perverse or irrational.

No submission was advanced that the decision of the assessor was tainted by his failure to give adequate reasons (see Soulemezis v Dudley (Holdings) Pty Limited 10 NSWLR (1987) 247). In any event, the real complaint is not that the assessor failed to expose his reasons - it is that it was all too clearly evident that he gave undue weight to the preservation of exotic trees. As I have said above, such a finding would not amount to an error of law. In my opinion, the appeal must be dismissed and I order accordingly.

1. Appeal dismissed.

2. Appellant to pay respondent's costs of the appeal.