Forgall Pty Ltd v Greater Taree City Council

[2015] NSWLEC 61

Land and Environment Court

New South Wales

Medium Neutral Citation:	Forgall Pty Ltd v Greater Taree City Council [2015] NSWLEC 61
Hearing dates:	2 March 2015
Date of orders:	23 April 2015
Decision date:	23 April 2015
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	(1)  Dismiss the appeal. (2)  Order the applicant to pay the respondent’s costs of the appeal.
Catchwords:	APPEAL – appeal against Commissioner’s decision on a question of law – refusal of development application because development not consistent with zone objectives and prohibited – whether Commissioner denied appellant procedural fairness – failure by appellant to adduce sufficient evidence to establish development’s consistency with zone objectives and permissibility – absence of a final landscaping plan – Commissioner did not determine matter on issues not raised by parties – Commissioner not obliged to give notice that absence of final landscaping plan amounted to insufficient evidence – failure by appellant to adduce further evidence did not give rise to failure by Commissioner to afford procedural fairness – finding by Commissioner that Aboriginal cultural heritage report inadequate not determinative of Commissioner’s decision – failure to notify appellant that report inadequate did not give rise to failure by Commissioner to afford procedural fairness
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 97(1), 80(1) Land and Environment Court Act 1979 s 56A(1) Land and Environment Court Rules 2007 r 3.7(2),(3)(a)
Cases Cited:	Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 Chambers v Maclean Shire Council [2003] NSWCA 100; (2003) 57 NSWLR 152; (2003) 126 LGERA 7 Forgall Pty Ltd v Greater Taree City Council [2014] NSWLEC 1132 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375
Category:	Principal judgment
Parties:	Forgall Pty Ltd (Applicant) Greater Taree City Council (Respondent)
Representation:	Counsel: Ms S A Duggan SC with Ms J Reid (Applicant) Mr A J Seton (Solicitor) (Respondent) Solicitors: LS Law (Applicant) Marsdens Law Group (Respondent)
File Number(s):	10682 of 2014
Publication restriction:	No

Judgment

Nature of appeal and outcome

1. Forgall Pty Ltd (‘Forgall’) appealed under s 56A(1) of the Land and Environment Court Act 1979 (‘the Court Act’) against the decision of a commissioner of the Court (Dixon C) dismissing Forgall’s appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) and refusing consent to Forgall’s development application for a bioclinic facility at Wallabi Point.

2. An appeal under s 56A(1) against a decision of a commissioner is only on a question of law. In its further amended summons commencing the appeal, Forgall identified two errors on questions of law, both being failures to afford procedural fairness. Failure to afford procedural fairness is an error of law amenable to an appeal against a decision on a question of law under s 56A of the Court Act: Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 at [100]; Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375 at [4], [38].

3. Forgall contended that the Commissioner denied Forgall procedural fairness by determining to refuse the application on the basis, firstly, that there was an absence of final detail of the landscaping proposed on the land and, secondly, that the Aboriginal Cultural Heritage Due Diligence Report prepared by Mr Fish and dated 17 March 2014 (‘ACHDD Report’) was inadequate, without giving Forgall the opportunity to address either matter before the Commissioner gave judgment. These were grounds of appeal 8 and 9 in the further amended summons. No other grounds of appeal were pressed.

4. Forgall submitted that these two matters were not in issue and had not been argued in the appeal below. Forgall submitted that the Commissioner’s determination of the appeal on the basis of those matters that were not in issue or argued in the proceedings involved a denial of procedural fairness: Botany Bay City Council v Pet Carriers International Pty Ltd at [101]; Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc at [40].

5. I find that Forgall has not established that it was denied procedural fairness in the ways contended in either ground of appeal.

6. In relation to the first ground, a central issue in the appeal was whether the development in the appeal proposed by Forgall to be carried out on the land was prohibited. In the applicable zone, development which is not consistent with the relevant objectives of the zone is prohibited. The relevant objectives of the zone concern the nature and extent of the impact of a proposed development on the environmental characteristics, environmental values and visual amenity of the land. The nature and extent of clearing of vegetation and of landscaping to replace vegetation are relevant matters to be considered in assessing the environmental impact of a proposed development and its consistency with the relevant zone objectives.

7. Forgall asserted that its proposed development was consistent with the relevant zone objectives and hence was not prohibited but instead was permissible development to which consent could be granted. As the party asserting the factual basis for this issue, Forgall bore the responsibility for adducing the necessary evidence to establish the issue. Forgall and the Council were given adequate opportunity to adduce whatever evidence they wished to adduce on the issue. At the end of the hearing, however, the Commissioner found that Forgall had not adduced sufficient evidence to establish the issue. By way of illustration, the Commissioner noted that one piece of evidence that Forgall did not adduce was a final landscaping plan. Forgall’s failure to adduce relevant evidence did not give rise to a failure on the part of the Commissioner to afford procedural fairness to Forgall.

8. In relation to the second ground, the Commissioner’s discussion concerning the inadequacy of the ACHDD report was not, in fact, a basis for the Commissioner’s decision to refuse Forgall’s application. Forgall has not established that the Commissioner determined the application and the appeal on a matter that was not in issue or argued in the appeal, and hence that there was a denial of procedural fairness on this basis.

The statutory framework

9. A consent authority, and the Court on appeal under s 97 of the EPA Act exercising the functions of the consent authority, can only grant consent under s 80(1) of the EPA Act to development proposed in a development application that is permissible and not prohibited under an applicable environmental planning instrument: Chambers v Maclean Shire Council [2003] NSWCA 100; (2003) 57 NSWLR 152; (2003) 126 LGERA 7 at [37], [38]. There is no power to grant consent to a development application for prohibited development.

10. An applicant for development consent bears the responsibility of establishing that the development for which consent is sought is, in fact, development that may be carried out with consent. If the applicant for development consent fails to establish that the development is permissible with consent, the consent authority has no power to grant consent to the application for that development.

11. In this case, the development proposed in the development application made by Forgall was for a bioclinic facility on rural land at Lot 2, DP1148343, Saltwater Road, Wallabi Point (‘the land’).

12. Forgall made its development application at a time when the applicable local environmental plan was Greater Taree Local Environmental Plan 1995 (‘LEP 1995’). Subsequently, LEP 1995 was repealed and replaced by Greater Taree Local Environmental Plan 2010 (‘LEP 2010’). However, LEP 2010 had a savings provision, cl 1.8A, which provided that a development application made but not finally determined before the commencement of LEP 2010 is to be determined as if LEP 2010 had not commenced. This meant that Forgall’s development application, and its appeal to the Court, was to be determined by applying LEP 1995.

13. Under LEP 1995, the LEP was in Zone 1(a) Rural General. The development control table for the Rural General Zone specified the development that may be carried without consent, the development that may be carried out with consent and the development that is prohibited. None of the developments specified as being able to be carried out without consent were relevant (being agriculture with some exceptions, forestry and oyster farming). The developments specified as being able to be carried out with consent were: “Any development other than development which is permissible without consent or which is prohibited”. The developments specified as being prohibited were:

Except as otherwise provided by this Table, all development which is not consistent with such objectives of this zone as are relevant to the particular case.

14. Under this development control table, therefore, development can only be classified as falling within the classification of development that may be carried out only with consent if it does not fall within the other classifications of development that may be carried out with consent or development that is prohibited; it is development other than development in the other classifications. This requires that a proposed development first be assessed as to whether it falls within either of the other classifications. In the case of Forgall’s proposed development, it did not fall within any of the developments that may be carried out without consent. The critical issue was, therefore, whether it fell within the classification of development that is prohibited.

15. Prohibited development is development that is not consistent with such objectives of the Rural General Zone that are relevant to the particular development proposed. The objectives of the Rural General Zone are fourfold, the first and fourth of which were relevant to Forgall’s proposed development:

(a)   the objectives specified in clause 12,

(d)   the enabling of development for purposes that are:

•   appropriate in a rural location,

•   … and

•   sympathetic with the environmental characteristics of the land.

16. The first objective of the Rural General Zone incorporates the objectives in cl 12 of LEP 1995 that applied generally to all rural zones. One of these objectives was relevant to Forgall’s proposed development:

(c)   the protection or conservation of:

•   environmental values of the land and visual amenity including landscape and scenic quality, rural character and tourism values,

17. The consequence of this development control table was that, in order for Forgall’s proposed development to be development that may be carried out only with consent, it needed to not be development which was prohibited and that required that Forgall’s proposed development not be development which was not consistent with these objectives of the zone of relevance to the particular case. If Forgall’s proposed development of the land was not consistent with the objectives of:

1. the protection or conservation of environmental values of the land and visual amenity including landscape and scenic quality, rural character and tourism values,

2. the enabling of development for purposes that are appropriate in a rural location, or

3. the enabling of development for purposes that are sympathetic with environmental characteristics of the land,

it would be development which is prohibited within the Rural General Zone.

The Commissioner’s decision

18. The Commissioner heard the appeal on 24 and 25 March 2014 and delivered written judgment on 30 June 2014: Forgall Pty Ltd v Greater Taree City Council [2014] NSWLEC 1132.

19. In the first two sections of the judgment (‘The proposal’ and ‘The elements of the development’), the Commissioner described Forgall’s proposed development (at [1]-[11]).

20. In the third section of the judgment (‘Statutory controls’), the Commissioner set out the relevant statutory controls under LEP 1995 for the Rural General Zone (at [12]-[15]). These are the ones that I have earlier set out.

21. In the fourth section of the judgment (‘Contentions’), the Commissioner identified the key issues in the appeal by reference to the Council’s statement of facts and contentions filed in the appeal. The Commissioner identified that the Council’s case was that the development was prohibited because it was not consistent with such objectives of Zone 1(a) Rural General as are relevant in this case (at [17]). This was the Council’s first contention in its statement of facts and contention.

22. The Commissioner identified the objectives with which the Council contended the development was not consistent, being, firstly, objective (a) of Zone 1(a) Rural General which calls up the objectives specified in cl 12 and in particular general rural zone objective (c) (concerning protecting or conserving environmental values of the land and visual amenity) and, secondly, objective (d) of the Zone 1(a) Rural General (concerning enabling development for purposes that are appropriate in a rural location and sympathetic with the environmental characteristics of the land) (at [18] and [19]).

23. The inconsistency of Forgall’s proposed development with the objectives of Zone 1(a) Rural General was the Council’s second contention in its statement of facts and contentions.

24. The Commissioner noted that the Council’s contentions that the proposed development was not consistent with the relevant zone objectives and was therefore prohibited was based in part on the finding that there was insufficient detail in Forgall’s application for consent:

20.   The Council's assessment that the development is not consistent with the relevant zone objectives is based in part upon a finding that there is insufficient detail in the application. In particular, detail about the amount of vegetation clearing needed to achieve the Asset Protection Zones and emergency access required by the Rural Fire Service and the final landscaping detail for the proposal. It submits that without that detail there can be no proper assessment of the development's consistency with the identified relevant zone objectives.

21.   The Council submits, based on the available evidence, the Court cannot determine the development is consistent with the relevant zone objectives. It must therefore find the development to be prohibited under the zoning table.

25. In the fifth and sixth sections of the judgment (‘Expert evidence’ and ‘Objectors evidence’), the Commissioner noted the expert planning evidence given by Ms Bowden (the Council’s senior planner) and Mr Fish (Forgall’s consultant planner) (at [23]), and the evidence of members of the local community objecting to the development, including residents of the village of Wallabi Point on the headland that overlooks the development site and the adjoining national park (at [24]-[30]).

26. In the seventh section (“Background”), the Commissioner noted that she had visited the site and surrounds as part of the hearing. She recorded her observations and summarised the environmental characteristics of the land (at [31]-[38]).

27. In the eighth section (“Discussion”) the Commissioner discussed the central issue in the case, namely, that the proposed development was not consistent with the relevant objectives of the Rural General Zone and therefore was prohibited. The Commissioner noted that the planners disagreed about the development’s consistency with the relevant Zone 1(a) Rural General objectives. The Commissioner summarised the planners’ competing views on the development’s consistency with each of the zone objectives that she had earlier identified as being relevant (at [39]-[48]).

28. The Commissioner next discussed the consequences of the development having to comply with the requirements of the Rural Fire Service (‘RFS’) for bushfire protection and emergency vehicle access on the issue on the development’s consistency with relevant Rural General Zone objectives (at [49]-[56]). The problems identified by the Commissioner were the lack of detail and uncertainty about, firstly, the extent of the clearing that would be required to establish an Asset Protection Zone (‘APZ’) and to provide an internal pathway network for emergency vehicles in order to comply with the requirements of the RFS and, secondly, the landscaping proposed to mitigate the impacts caused by the clearing of vegetation. The Commissioner considered that Forgall’s evidence was insufficient to permit the Court to adequately assess the extent of vegetation loss that would result from compliance with the RFS’s requirements or what landscaping is proposed and hence to assess the development’s consistency with the objectives of the Rural General Zone that seek to preserve the established rural character, visual amenity and scenic qualities of the locality in that zone.

29. Forgall’s first ground of appeal rested on the Commissioner’s discussion in [53]-[56] in this section of her judgment:

53.   The plans before the Court indicate a path network for emergency vehicles but the detail of how the applicant will provide compliant access is unclear. Mr Fish accepted that an internal path 6 m wide with a 20 m long x 3 m wide turning bay every 200 m might satisfy compliance. However, the applicant's advocate advised in final submissions that his client had not yet settled the detail for the emergency vehicle paths and was considering alternative solutions to meet the criteria. By the conclusion of the hearing it was clear that there was simply no final detail of the landscaping for the APZ area and, therefore, no opportunity for the Court to determine whether the RFS requirements could be achieved by this development on the site.

54.   The concept plan produced by Mr Fish relies upon a 20% tree canopy. As he accepted in cross-examination, that percentage is not compliant with the RFS requirement. In response the applicant submits the landscape detail can be provided as a condition of consent (as per condition 8 of the RFS's GTA at Folio 234 Exhibit 5). While that may be acceptable course in some cases it is unacceptable in circumstances where the development's permissibility requires an assessment of the development's consistency with zone objectives that seek to preserve the established rural character, visual amenity and scenic qualities of the locality in the Rural 1(a) Zone.

55. The lack of detail and uncertainty about the locations and widths of internal pathways and turning bays and the proposed landscaping within the APZ is a fundamental flaw in this application. It makes it impossible for the Court to accurately assess whether the visual impact of this development is consistent with being "sympathetic with the environmental characteristics of the land or appropriate in a rural location." (The relevant zone objective of the 1(a) Rural General Zone under LEP 1995 which applies by dint of the savings provision in cl 1.8A of LEP 2010).

56.   The fact is that the southern boundary of this site adjoins the Saltwater National Park and a small creek (Saltwater Gully) drains from the site into the adjoining Saltwater National Park. The development in my assessment can only be sympathetic with these environmental characteristics of the land if it is appropriately landscaped. As it stands, I have no idea how much of the land needs to be cleared to provide for the APZ's and what landscaping is proposed. In my assessment, the integration of the built form so that it is appropriate in this rural location and sympathetic with the environmental characteristics of the land is dependent upon appropriate screening by the dense vegetation along the frontage of the property and around the built form. Accordingly, I need to know and assess that detail in order to form a view as to whether the development is consistent with the relevant zone objectives and thereby permissible.

30. In particular, Forgall seized upon the Commissioner’s statement in [53] that:

By the conclusion of the hearing it was clear that there was simply no final detail of the landscaping for the APZ area and, therefore, no opportunity for the Court to determine whether the RFS requirements could be achieved by this development on the site.

31. Forgall contended that, by the Commissioner not raising this concern with Forgall prior to the conclusion of the hearing, Forgall was denied the opportunity to address the concern.

32. The Commissioner next discussed the visual impact of the proposed development from Saltwater Headland in Saltwater National Park and the elevated areas of Hallidays Point (at [57]) and from the Saltwater Aboriginal Place (at [58]).

33. The Commissioner then turned to a different topic, the adequacy of Mr Fish’s two page ACHDD Report. The Commissioner opined that she found it difficult to accept that that report was adequate despite the Council’s acceptance (at [59]-[60]). Forgall’s second ground of appeal rested on the Commissioner’s statements in these two paragraphs that she found it difficult to accept the adequacy of the ACHDD Report.

34. In the ninth section of the judgment (“Conclusion”), the Commissioner came to her conclusion that the development was not consistent with the relevant zone objectives and was therefore not permissible in the zone. The relevant paragraphs [61]-[66] provide:

61.   The Court accepts that the term "consistent" in the LEP has its ordinary and natural meaning. It means "compatible or "capable of existing together in harmony": Dem Gillespies v Warringah Council [2002] NSWLEC 224; [2002] 124 LGERA 147.

62.   With that definition in mind, I have decided after a consideration of the evidence (as discussed above) and the parties' submissions that the development must be refused because it is not consistent with the relevant objectives in the 1(a) Rural General Zone in particular objectives (a) and (d), and the relevant General Zone objective in cl12 (c). Therefore, the development is not permissible in the zone.

63.   In coming to my decision I accept the evidence of the Council's planner Ms [Bowden]. I find her evidence to be a comprehensive and objective assessment of the application against the relevant controls. She has considered the impacts of the development from all relevant vantage points not just the Saltwater Road frontage. Mr Fish did not undertake as thorough an assessment of the impacts of the development from the National Park or the residential headland.

64.   Having had the opportunity to view the site and its locality I share Ms [Bowden]'s concerns about the deficiencies with the application. I accept her planning assessment that without appropriate landscaping the development has the potential to be highly visible (particularly at night) from Saltwater Road and the residential headland area and the National Park and Nature Reserve. Given this potential it is imperative that a final landscape design is available at the time of assessment to ensure that the development is consistent with the relevant zone objectives including whether it is appropriate in a rural location and protects or conserves the environmental values of the land and visual amenity including landscape and scenic quality and tourism values.

65.   In this case the applicant has not provided a final landscaping design which identifies the clearance areas to accommodate the required APZ's or an ability to comply with the performance criteria for bushfire evacuation as discussed in (Exhibit 6) - including the design and widths of the fire trails enabling safe and ready access for fire fighting vehicles in the event of a bush fire (Ch4 in Exhibit 6). Consequently, I agree with Ms [Bowden]'s evidence that it is impossible to assess the application as being consistent with the relevant zone objective for this site without the abovementioned information.

66.   After a consideration of the evidence I appreciate the description of the development (in the submission from the Office of Environment and Heritage) as having the potential to be a "beacon" in the night sky. As the Court's view confirmed the adjoining land is predominately wide-open rural spaces with some farmhouses, vast areas of National Park, bushland and the coastline. In my assessment of the evidence the development of several buildings in a horseshoe shape over the site with large cleared paths around them to accommodate necessary APZ's and some landscaping is in my assessment out of character in the locality. The proposal is as Ms [Bowden] states in her evidence a "random development" which is inappropriate in a rural location.

35. Again, Forgall focussed on the Commissioner’s statement at [65] that, in the absence of a final landscaping design which identifies the clearance areas to accommodate the required APZs or an ability to comply with the performance criteria for bushfire evacuation, it was impossible to assess the development as being consistent with the relevant zone objectives. Forgall contended that, by the Commissioner not giving prior notice of this concern, Forgall was denied the opportunity to address the matter.

36. Finally, the Commissioner ordered that the appeal be dismissed and that the development application be refused (at [67]).

Forgall’s submissions that the Commissioner erred

37. Forgall’s first ground of appeal was “directed to the failure of the Commissioner to canvass the requirement for a ‘final detail landscaping plan’ with the Applicant prior to making a finding that in the absence of such a plan, the Court was not in a position to assess the application as being consistent with the relevant zone objectives, and therefore ‘permissible’ with development consent.”

38. Forgall submitted that the absence of a final landscaping plan was not raised by the Council as an issue in the proceedings. The Council had raised issue that “insufficient information” had been submitted with the amended application. The Council had called for a visual impact analysis, and Forgall provided one. However, the Council did not raise issue that a final landscaping plan was required to enable a proper assessment of the amended application and any environmental impacts associated with the development.

39. Forgall submitted that if the Commissioner was to determine the appeal by reference to matters beyond the issues identified by the parties, procedural fairness required the parties to be given notice of the additional matters and accorded the opportunity to be heard on them: Botany Bay City Council v Pet Carriers International at [101]; Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc at [40]. The absence of a final landscaping plan was a matter beyond the issues identified by the parties and hence the Commissioner should have given notice to the parties and afforded them an opportunity to address the matter.

40. Forgall referred to the joint reports prepared by the planning experts. Although Ms Bowden did raise concern that Forgall’s statement of environmental effects and landscape concept report did not detail the extent of any additional vegetation clearance required to establish APZs and that there was no evidence to confirm that the proposed buildings will not be visible from Saltwater Road and not alter the character or visual amenity of Wallabi Point, she did not raise in the joint reports that she required a final landscaping plan to properly assess the development application. Forgall submitted, therefore, that it was not alerted to the matter of the absence of a final landscaping plan by the expert planning evidence.

41. Forgall referred to the respective versions of the draft, without prejudice conditions of consent that had been tendered by the parties. The parties had agreed that, in the event that the Court decided to approve the development application, condition 8(h) should be imposed as follows:

A landscape plan prepared by a qualified landscape architect/landscape consultant/bush fire planning and design consultant, conforming to the requirements of Appendix 5 of ‘Planning for Bush Fire Protection 2006’ and the Rural Fire Service ‘Standards for asset protection zones’ is to be submitted to Council or the principal certifier for approval with the construction certificate. The plan is to include the location of all proposed and existing planting, delineating existing trees to be retained, removed or transplanted. The plan should include a detailed planting schedule which includes species listed by botanical and common names, quantities of each species, pot sizes, and the estimated size of the plant at maturity.

42. Forgall submitted that it was entitled to believe, as a consequence of this agreed condition of consent, that the submission of a final landscaping plan after consent had been granted pursuant to this condition would have been sufficient and that it was not required to be submitted before consent could be granted.

43. Forgall finally referred to the oral evidence of the planners at the hearing. Forgall had tendered a plan showing indicative plantings to meet the APZs (‘the indicative landscaping plan’). The Council objected to the tender but the Commissioner allowed it into evidence. Forgall indicated to the Court that the indicative landscaping plan “was a step towards the landscape plan” that the Council had requested in the without prejudice conditions and would “need a lot more detail.”

44. Forgall submitted that Ms Bowden was able to give evidence on the landscaping of the proposal and did not raise concerns that she could not form a concluded opinion on the proposal in the absence of a final landscaping plan. Forgall submitted that the Commissioner made a wrong factual finding in [64] and [65] that Ms Bowden’s evidence was that it was impossible to assess the application as being consistent with the relevant zone objectives for the site without a final landscaping plan, but that factual error did not infect the decision.

45. Forgall submitted that it was not alerted to the problem of the lack of a final landscaping plan by the oral evidence of the planners.

46. In summary, Forgall submitted that it could not reasonably have been expected to understand, from the statement of facts and contentions, the joint expert reports, the draft conditions of consent, or the oral evidence of the planners, that in the absence of a final landscaping plan, the Court was not in a position to assess the application as being consistent with the relevant zone objectives. The Commissioner was, therefore, obliged to clearly identify the issue so that Forgall could address it.

47. Forgall noted that the need for procedural fairness was particularly important in this case as the Council had raised as an issue, that absent the savings provision of cl 1.8A of LEP 2010, the proposed development would be prohibited and therefore Forgall would be prevented from relodging a new development application with the required information.

48. Forgall’s second ground of appeal concerned the failure of the Commissioner to notify Forgall that she considered the ACHDD Report to be inadequate. The Council had raised, in contention 12 of the statement of facts and contentions, that a revised ACHDD Report was required to enable a proper assessment of the amended application and any environmental impacts associated with the development. In response, Mr Fish prepared an updated ACHDD Report dated 17 March 2014. It was annexed to the addendum joint report between Mr Fish and Ms Bowden. Mr Fish and Ms Bowden agreed in the addendum joint report that “the appropriate due diligence has been carried out to investigate the likelihood of aboriginal cultural artefacts existing on the site”. At the hearing, no questions were asked of either Ms Bowden or Mr Fish in relation to the adequacy of the ACHDD Report.

49. The Commissioner also received and heard evidence from Aboriginal community members that they considered that the land was of Aboriginal significance.

50. There was also a letter in evidence from the Office of Environment and Heritage (NSW National Parks and Wildlife Service) dated 22 January 2014 (‘the OEH letter’) raising concern about the adequacy of the first ACHDD Report. Forgall noted, however, that the OEH letter predated the updated ACHDD Report prepared by Mr Fish on 17 March 2014.

51. In closing address, there was a discussion between the parties’ legal representatives and the Commissioner about whether the Council still pressed the contention about the inadequacy of the ACHDD Report. That discussion culminated with the Council’s legal representative submitting:

The highest I can put it Commissioner, Ms Bowden has given her evidence and I don’t cavil with what she has said but all I can say is that it does not answer what this OEH letter says and as to what it wanted, they being a relevant – well they're an adjoining owner and a relevant authority, so it’s a matter that can be taken into account in the public interest.

52. Forgall submitted that it could not reasonably have been expected to understand from this evidence and discussion in the submissions, that the Commissioner would find that the updated ACHDD Report was inadequate. Forgall submitted that, if the Commissioner did have a concern about the adequacy of the updated ACHDD Report, procedural fairness required that the Commissioner give Forgall notice of her concern and accord it the opportunity to be heard on the issue.

53. In oral address at the hearing of this appeal, Forgall accepted that, on a proper reading of the Commissioner’s reasons of judgment, the Commissioner’s determination to dismiss the appeal and refuse the application did not in fact depend on her finding that the updated ACHDD Report was inadequate. Forgall therefore accepted that this ground of appeal would not be sufficient by itself to vitiate the Commissioner’s decision. However, Forgall submitted that if it succeeded on the first ground of appeal and the decision of the Commissioner was set aside, the Commissioner would need to address the matter of the ACHDD Report in any re-hearing and redetermination of Forgall’s application and give Forgall an opportunity to be heard on the issue.

The Council’s submissions that the Commissioner did not err

54. The Council submitted that Forgall has not established that the Commissioner denied Forgall procedural fairness in the way alleged in the first ground of appeal. The Commissioner did not determine the proceedings by reference to matters beyond the issues identified by the parties. The Commissioner, in fact, determined the proceedings precisely on the basis of the issues raised by the Council in contentions 1 and 2 of its statement of facts and contentions.

55. The Council submitted that procedural fairness did not require that the Commissioner tell Forgall that its evidence was deficient or tell it what evidence it should marshal to meet contentions 1 and 2 of the Council’s statement of facts and contentions. In particular, the Commissioner was under no duty to inform Forgall during the course of the hearing that its evidence (in the form of the indicative landscaping plan produced on the first day of the hearing) was not sufficiently detailed, certain or reliable for the purpose of convincing the Commissioner that the proposed development was consistent with the relevant objectives in Zone 1(a) Rural General, in particular objectives (a) and (d), and the relevant general rural zone objective in cl 12(c) of LEP 1995.

56. The Council submitted that Forgall has wrongly elevated the Commissioner’s observation about the deficiency of Forgall’s indicative landscaping plan to be the sole reason for refusal of Forgall’s application; it was not. The Commissioner did not refuse the application on the ground that Forgall had not submitted a detailed and accurate landscaping plan, but rather was observing (at [64]) that she was unable to get any adequate assistance in making the determination that she needed to make about the development’s consistency with the relevant zone objectives from a plan that was not final and shown to be deficient.

57. The Council also submitted that Forgall had been given notice about the inadequacy of the indicative landscaping plan. Concerns about the adequacy and utility of the indicative landscaping plan produced by Forgall on the first day of the hearing were raised very early in the hearing. The Council referred to the exchange between the Council’s solicitor, Forgall’s solicitor and the Commissioner about the utility of the indicative landscaping plan. The Council’s solicitor objected to Forgall’s solicitor asking Forgall’s planner, Mr Fish, about the indicative landscaping plan. The basis of the objection was that it had not been established that the planting could be carried out, in accordance with the plan, that would be compliant with the APZ requirements that would be imposed on the development and it was futile to ask questions about a plan unless it can be established that the plan is capable of being carried out in accordance with the APZ requirements.

58. The Commissioner asked Forgall’s solicitor whether Forgall was applying for leave to amend its development application to include the indicative landscaping plan and then to ask Mr Fish how compliance with the APZ requirements could be achieved. Forgall’s solicitor responded:

Commissioner, I will ask Mr Fish to explain this plan as far as the APZs are concerned. This plan is an indicative plan as to how the APZ can be managed. It’s not a plan that the applicant should be relying upon. It’s a step towards the landscape plan that the Council has requested in the ‘without prejudice’ conditions.

59. The Commissioner then asked:

So, in terms of my assessment of the application, what relevance does it have if it’s an indicative plan and if it’s not part of the amended application and not something that really does any more than give some evidence about something that could happen?

60. Forgall’s solicitor responded:

Commissioner, what it does is it identifies that, notwithstanding the APZ, a planting regime can be laid out which facilitates the obstructing of the visibility of the building from the north and from the east. Now, although the applicant would be happy to adopt this as a step towards the landscape plan that is to be adopted and in fact no doubt that’s what Mr Fish will probably formulate at the end, so it’s happy to actually have this included in the conditions in fact, but it’s not the final landscape plan that Council have called upon, if in fact this development is approved. This is a step towards facilitating.

61. The Commissioner asked further:

So it needs more detail to satisfy the other conditions. Is that what you are telling me?

62. Forgall’s solicitor replied:

It does. It needs a lot more detail as far as plant species are concerned. What it does it sets out - well, perhaps I’ll ask Mr Fish to tell us what it does.

63. The Commissioner allowed Forgall’s solicitor to continue questioning Mr Fish about the indicative landscaping plan. She noted that:

Clearly the applicant is trying to deal with the main issue in this case, as far as the Council is concerned, the context of this development and its visibility being one aspect of that context and the appropriateness of the development on the site.

64. The Council’s solicitor questioned Mr Fish about the indicative landscaping plan, including that the plan provides for a greater tree canopy cover (20%) than the requirements of the RFS in “Planning for Bush Fire Protection 2006” (15%). The Commissioner intervened to ask Mr Fish:

Subject to [Forgall’s solicitor] telling me 20% in this circumstance is appropriate because of some assessment, if it was to be less than 15%, would your plan be of any particular use to me? If in fact the condition requires that from the RFS, less than 15%, and you have a plan which shows canopy cover of 20%, if I’m just applying the condition, I wouldn’t use that plan. Is that right?

65. Mr Fish replied:

That’s correct, yeah. Well, the situation is that, yeah, the 20% is what I based this on.

66. The Commissioner later said:

I think we’ll have it [the indicative landscaping plan] marked for identification as document number 2 [MFI 2] and then, once I understand, that this particular application has a 20% coverage, despite the condition requiring it to comply with less than 15%, I’ll be able to appreciate the value of it in my assessment of this case.

67. The indicative landscaping plan (which had been marked MFI 2) was later tendered as an exhibit (Exhibit B) on the second day of the hearing. At the time the Commissioner said:

Well to the extent it tells me anything, I’m happy to receive it having heard the evidence on the basis that it’s a document that’s been produced during the course of the hearing. The applicant has provided it to the Council during the course of the hearing and it doesn’t specify a particular species but gives a generic explanation based on 20% foliage coverage. That was my recollection, wasn’t it?

68. Forgall’s solicitor answered: “That’s correct”. The Commissioner then continued:

Thank you. We’ll call that concept landscape plan [Exhibit B] and whether your client intends to include that in the bundle of plans, it’s up to you. I’ll just note though the 20% tree canopy base calculation. That will recall the evidence for me.

69. The Council submitted that these exchanges clearly put Forgall on notice about the deficiencies in the indicative landscaping plan. The Commissioner’s findings in her judgment (at [54] and [55]) about the deficiencies in the indicative landscaping plan accorded with the deficiencies that had been identified during the hearing. There was nothing said in the Commissioner’s judgment concerning the indicative landscaping plan that Forgall should not have reasonably expected.

70. The Council submitted that its planner, Ms Bowden, never accepted that the indicative landscaping plan was sufficient or that a condition of consent requiring a detailed landscaping plan would be sufficient to deal with the threshold question of whether the development was consistent with such objectives of the Rural General Zone as were relevant to the particular case. Ms Bowden had expressed concern about the adequacy of the earlier landscape concept report prepared by Mr Fish. Ms Bowden in the addendum joint report noted in relation to various issues concerning vegetation clearance, visual impact and landscaping:

The SOEE and Landscape Concept Report do not detail the extent of any additional vegetation clearance required to establish APZs.

…

There is no evidence to confirm that the proposed buildings will not be visible from Saltwater Road and not alter the character or visual amenity of Wallabi Point.

…

In regard to the proposal for screen vegetation being established in the eastern and northern parts of the subject land, this conflicts with the proposed development plans as landscape plantings are proposed within the eastern APZ and may be contrary to the RFS requirements for APZs to be established for bushfire protection purposes.

71. The Council submitted that these statements indicated that Ms Bowden was clearly not satisfied that the Landscape Concept Report, and other details in relation to vegetation clearance, visual impact and landscaping, were satisfactory.

72. The Council submitted that it was Forgall’s choice to rely on draft conditions that had no certainty of outcome for the purpose of establishing that the development was not inconsistent with the relevant objectives of the zone rather than producing evidence at the hearing. The Commissioner was correct to describe such an approach as unacceptable in circumstances where the development’s permissibility required an assessment of the development’s consistency with zone objectives that seek to preserve the established rural character, visual amenity and scenic qualities of the locality in Zone 1(a) Rural General.

73. In relation to Forgall’s second ground of appeal, the Council submitted that it must fail for the simple reason that the Commissioner did not determine the proceedings by refusing the application on the basis that the ACHDD Report was inadequate. The Commissioner’s comments in [59]-[60] of her judgment were not a reason for refusal of the application. They were asides made in the course of her discussion section and were not in her conclusion section. The Commissioner’s reason for refusal of the application was clearly stated at [62] of her conclusion:

With that definition in mind, I have decided after a consideration of the evidence (as discussed above) and the parties’ submissions that the development must be refused because it is not consistent with the relevant objectives in the 1(a) Rural General Zone, in particular objectives (a) and (d), and the relevant general [rural] zone objective in cl 12(c). Therefore, the development is not permissible in the zone.

74. The Council submitted that the appeal was not determined by reference to matters beyond the issues identified or argued by the party. The statements made by the Commissioner about the ACHDD Report appeared in the discussion section of the judgment and did not appear at all on the face of the judgment to constitute an issue that was determinative of the proceedings. Accordingly, there was no requirement for the parties to be made aware by the Commissioner of her concerns about the adequacy of Mr Fish’s two page ACHDD Report because the Commissioner did not refuse the application on that basis.

The Commissioner did not deny Forgall procedural fairness

75. The Commissioner did not deny Forgall procedural fairness in either of the ways contended for in Forgall’s grounds of appeal.

76. In relation to the first ground, the Commissioner did not determine to refuse Forgall’s application for consent to carry out its proposed development, and to dismiss the appeal, on a matter that was not in issue or argued in the appeal. The absence of a final landscaping plan was not an issue additional to the issues raised by the parties but rather a fact of relevance to the central issue that was raised in the appeal. As the Commissioner correctly identified, the central issue raised by the Council in its statement of facts and contentions and argued on the appeal was that Forgall’s development as proposed in the application before the Court was not consistent with such of the objectives of Zone 1(a) Rural General as were relevant to the particular case and hence was prohibited.

77. Forgall was the applicant seeking for the Court on the appeal to exercise the functions of the Council as consent authority to grant development consent to Forgall’s application to carry out its proposed development on the land in the Rural General Zone. The Court only had power to grant consent to the application if Forgall’s proposed development fell within the classification of development that may be carried out only with consent in the Rural General Zone and that required that the proposed development did not fall within the classification of development that is prohibited in the Rural General Zone.

78. Establishing that Forgall’s proposed development was not prohibited required establishing that the development was not inconsistent with the objectives of the Rural General Zone of relevance to the particular case. Evidence was required to establish this issue. Forgall, as the party asserting the factual basis for the issue, bore the responsibility for adducing the necessary evidence to meet the issue: see Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc at [111].

79. Forgall and the Council were given the opportunity to adduce all the evidence they wished on that issue. Forgall sought to do so through the evidence of its planner, Mr Fish. Mr Fish produced a statement of environmental effects. That statement was criticised by the Council and its planner, Ms Bowden, as being inadequate to establish the proposed development’s consistency with the relevant zone objectives and hence its permissibility. Ms Bowden’s concerns were evident in the joint report of the conference of the planners held on 27 February and 6 March 2014.

80. Forgall responded to these criticisms by having Mr Fish prepare a visual impact statement dated 5 March 2014 and a local character assessment also dated 5 March 2014, as well as a landscape concept report dated 13 March 2014 comprising a landscape concept plan. These additional reports and plans were still criticised by the Council and its planner, Ms Bowden, as being inadequate to establish the proposed development’s consistency with the relevant zone objectives. This was evident in the addendum to the joint report of the planners dated 18 March 2014.

81. Forgall responded again by having Mr Fish prepare, and give evidence at the hearing of the appeal on, an indicative landscaping plan. This indicative landscaping plan was criticised by the Council as being insufficient to demonstrate compliance with the requirements of the RFS for asset protection zones and emergency vehicle access. One deficiency was that Mr Fish had prepared the indicative landscaping plan on the basis that there could be retention of 20% of the tree canopy on the land, but the RFS requirement was that only 15% of the tree canopy could be retained. More trees would therefore need to be cleared than the indicative landscaping plan contemplated. A second deficiency was that the internal pathways shown on the indicative landscaping plan did not comply with the RFS requirements for safe operational access for emergency vehicles. More trees would also need to be cleared to comply with this requirement than the indicative landscaping plan contemplated. The consequence of these two deficiencies was that it was uncertain how much and where vegetation would need to be cleared in order to comply with the RFS requirements.

82. A third deficiency was the absence of detail of the location, number and species of plants that would be planted in the place of vegetation cleared in order to obstruct the visibility of the proposed development from the north and the east.

83. These deficiencies were raised in the evidence of the planners at the hearing, in the discussion between the parties’ solicitors and the Commissioner at the time of questioning of Mr Fish and the tender of the indicative landscaping plan, and in final submissions. Forgall did not meet this issue by preparing and tendering at the hearing a final landscaping plan that overcame these deficiencies in the indicative landscaping plan. Instead, Forgall elected to meet the issue by submitting that it would be sufficient for the Court to grant consent subject to the draft condition 8(h) that would require Forgall to submit such a final landscaping plan for approval with the construction certificate.

84. This course of action carried with it a risk. Establishing that Forgall’s proposed development was not prohibited but rather was permissible with consent was a precondition to the Court having power to grant consent to the proposed development. A final landscaping plan might assist in establishing that the proposed development was not inconsistent with the relevant zone objectives and hence was not prohibited but instead permissible. However, in order for a final landscaping plan to assist in this regard, it would need to be submitted before and not after consent was granted. Nevertheless, Forgall chose to pursue the course of action of submitting the final landscaping plan after and not before consent was granted.

85. In her judgment, the Commissioner found that the evidence adduced by Forgall, including the indicative landscaping plan, was insufficient to enable her to accurately assess that the proposed development was consistent with the relevant zone objectives and hence permissible (at [53]-[56],[58]). The Commissioner therefore decided that the development was not consistent with the relevant zone objectives and hence not permissible in the rural general zone (at [62]). These findings of facts were open to the Commissioner on the evidence.

86. Forgall’s failure to adduce sufficient evidence (including a final landscaping plan) at the hearing to demonstrate that its proposed development was not inconsistent with the relevant objectives of the Rural General Zone and hence was not prohibited but rather was permissible with consent lay at its own feet: see likewise in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc at [143]. It was Forgall’s choice to run its case by relying on the draft condition requiring Forgall to submit the final landscaping plan after consent was granted, rather than tendering it at the hearing before Forgall’s application for consent was determined by the Court.

87. The Commissioner was not obliged, by considerations of procedural fairness, to give notice to Forgall that the evidence Forgall had adduced was insufficient to establish the issue, or to advise what further evidence Forgall should adduce to establish the issue, including that it should prepare and tender a final landscaping plan, or to advise Forgall that its choice to run its case by relying on the draft condition of consent requiring the submission of the final landscaping plan carried with it the risk that Forgall might not establish the issue. Forgall’s failure to adduce further evidence, including the final landscaping plan, did not give rise to a failure to afford Forgall procedural fairness.

88. Forgall’s first ground of appeal is rejected.

89. Forgall’s second ground of appeal fails for the simple reason that the Commissioner’s determination of Forgall’s application for consent and its appeal did not depend on the Commissioner’s factual finding that the ACHDD Report was not adequate or sufficient (at [59] and [60]). The Commissioner’s reason for determining to refuse Forgall’s application and dismiss its appeal was that the proposed development was not consistent with the relevant zone objectives and was therefore prohibited (at [62]). This did not depend on the adequacy or otherwise of the ACHDD Report.

90. Hence, even if the adequacy or sufficiency of the ACHDD Report could have been said to have been a matter that was not in issue or argued in the appeal, the Commissioner cannot be said to have decided the application and the appeal on that matter. This was accepted by Forgall at the hearing of this appeal. Procedural fairness therefore did not require the Commissioner to give notice to Forgall of her concern that the ACHDD Report was not adequate or sufficient.

91. In these circumstances, it is not necessary to decide whether the adequacy or sufficiency of the ACHDD Report was a matter not in issue or agreed in the proceedings.

92. Forgall’s second ground of appeal is also rejected.

Conclusion, costs and orders

93. Forgall has failed to establish that the Commissioner erred on a question of law by denying Forgall procedural fairness. Forgall’s appeal should therefore be dismissed.

94. In the circumstances of this appeal, I consider that it is fair and reasonable to make an order that Forgall, who has been unsuccessful in its appeal under s 56A(1) of the Court Act against the Commissioner’s decision on a question of law, pay the costs of the appeal of the Council, who has been successful in defending the appeal.

95. The appeal under s 56A(1) is in Class 1 of the Court’s jurisdiction, as was the appeal determined by the Commissioner. Rule 3.7(2) of the Land and Environment Court Rules 2007 applies. That rule provides that the Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. One of the circumstances in which the Court might consider the making of a costs order is fair and reasonable is that provided for in r 3.7(3)(a) which provides:

(a)   that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:

(i)   in one way was, or was potentially, determinative of the proceedings, and

(ii)   was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings.

96. An appeal under s 56A(1) of the Court Act, which is limited to questions of law, meets this circumstance. Nevertheless, this circumstance might not be determinative in all appeals under s 56A(1). All of the circumstances of the appeal and the parties need to be considered. There may be other circumstances, such as unreasonable conduct of the party that has ultimately been successful on the appeal, that point against making an order for costs in favour of that party. The unreasonable conduct might be in the circumstances leading up to the appeal, including the party’s conduct of the proceedings in the court below; the party’s conduct of the appeal; or the party’s conduct in raising and maintaining a ground of appeal, or in defending a ground of appeal, where the ground of appeal or defence did not have reasonable prospects of success, or where continuing the ground of appeal or maintaining the defence was otherwise unreasonable. The Court’s determination under r 3.7(2) of whether the making of a costs order is fair and reasonable requires consideration of all of the circumstances.

97. In this appeal, however, there are no other circumstances that point against the making of a costs order in favour of the successful party. The appeal was, of course, limited to a question of law. The question of law concerned was whether the Commissioner denied one of the parties procedural fairness by determining the appeal on a basis that was not in issue or argued in the appeal. Resolution of that question of law did not depend on the unreasonableness of any conduct of the parties. In particular, it did not depend on establishing any unreasonable conduct of the Council either in the appeal before the Commissioner or in this s 56A(1) appeal.

98. I consider the nature and conduct of this s 56A(1) appeal involving as the central issue only a question of law, and the absence of other circumstances that point against making a costs order, make it fair and reasonable to make an order that Forgall pay the Council’s costs of this appeal.

99. I make the following orders:

1. Dismiss the appeal.

2. Order the applicant to pay the respondent’s costs of the appeal.

Decision last updated: 23 April 2015