Gee v Council of the City of Sydney - [2004] NSWLEC 581

No judgment structure available for this case.

Reported Decision: 137 LGERA 157

Land and Environment Court

of New South Wales

CITATION: Gee v Council of the City of Sydney and Ors [2004] NSWLEC 581

PARTIES: APPLICANT:
Elizabeth Gee
FIRST RESPONDENT:
Council of the City of Sydney
SECOND RESPONDENT:
Shauna Alexander and William Hywall Clark

FILE NUMBER(S): 40508 of 2004

CORAM: Pain J

KEY ISSUES: Judicial Review :- whether all documents on the relevant council file should be regarded as being before the council in determining to grant consent - whether council properly considered if a condition precedent contained in the LEP was met - whether council gave real consideration to the provisions of its DCP - whether the council's decision that the proposal satisfied the precondition in the LEP and the requirements of the DCP was manifestly unreasonable.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 79C
South Sydney Local Environmental Plan 1998, cl 10, cl 12(1)

CASES CITED: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223;
Carltona Limited v Commissioner of Works [1943] 2 All ER 560;
Centro Properties v Hurstville City Council & Anor [2004] NSWLEC 401;
Clifford v Wyong Shire Council (1996) 89 LGERA 240;
Cobden-Jones & Anor v Woollahra Municipal Council & Ors (2001) 118 LGERA 41 ;
Currey v Sutherland Shire Council (1998) 100 LGERA 365 ;
Franklins Limited v Penrith City Council & Anor [1999] NSWCA 134;
Jones v Dunkel (1959) 101 CLR 298;
Manly Council v Hortis (2001) 113 LGERA 321;
Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24;
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259;
North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435;
Parramatta City Council v Hale (1982) 47 LGRA 319 ;
Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74;
Weal v Bathurst City Council (2000) 111 LGERA 181;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 19/08/2004
20/08/2004

DATE OF JUDGMENT: 11/23/2004

LEGAL REPRESENTATIVES:
APPLICANT:
Dr J. Griffiths SC with Ms J. Jaygot instructed by Abbott Tout
FIRST RESPONDENT:
Mr M. Craig QC instructed by Maddocks
SECOND RESPONDENT:
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

23 November 2004

40508 of 2004 Elizabeth Gee v Sydney City Council and Shauna Alexander and William Hywall Clark
JUDGMENT

1 Her Honour: The Applicant, Elizabeth Gee, seeks a declaration that a development consent granted by South Sydney Council to Shauna Alexander and William Hywall Clark, the Second Respondents, on 4 February 2004, in relation to 11 Stewart Place, Paddington (“the land”) is void and of no effect. The Applicant also seeks an order restraining the Second Respondents from carrying out any work pursuant to the development consent and an order that the Respondents pay her costs in relation to these proceedings. The Applicant owns a property, located at 9 Stewart Place, Paddington, which immediately adjoins the land.

2 Due to local government boundary changes, South Sydney Council is no longer responsible for this area and the Council of the City of Sydney, the First Respondent, is taken to be the relevant consent authority for the purpose of these proceedings. The Second Respondents did not appear at the hearing, having filed a notice of submitting appearance.

Background

3 It is necessary for me to briefly set out the history behind the development consent the subject of these proceedings. The Second Respondents first applied to South Sydney Council for consent to demolish the existing two storey building on the land and to erect a new two storey building in January 2002 (“the first development application”). In August 2002 South Sydney Council approved the first development application and granted the Second Respondents’ development consent subject to conditions (“the first development consent”). On 14 August 2002 the Applicant commenced Class 4 proceedings in this Court challenging the grant of the first development consent. These proceedings were the subject of a mediation and on 18 February 2003 declarations were made by this Court, with the consent of the parties, to the effect that the first development consent was void and of no effect.

4 On 2 July 2003 the Second Respondents’ agents lodged with South Sydney Council a second development application for consent to demolish the existing two storey building on the land and to erect a new two storey building with South Sydney Council. On 4 February 2004, South Sydney Council approved the further development application subject to conditions. It is this development application and development consent which are the subject of these proceedings. The building proposed in this development application is similar to that proposed in the first development application. In particular, the rear setbacks of the building the subject of the current development consent do not differ from those proposed in the first development application.

5 The Applicant challenged the validity of the development consent on the following three grounds:

Failure to Meet a Condition Precedent to the Grant of Development Consent

South Sydney Local Environmental Plan 1998

Failure by the Council to Give Real Consideration to the Requirements of the DCP:

Environmental Planning and Assessment Act 1979

South Sydney Development Control Plan 1997 - Urban Design

Manifest Unreasonableness:

The Applicant argued that South Sydney Council’s decision that the proposal was consistent with the zone objectives of the LEP and the rear setback requirements of the DCP was manifestly unreasonable.

6 Environmental Planning and Assessment Act 1979

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

…

(iii) any development control plan, and

…

7 South Sydney Local Environmental Plan 1998

Except as otherwise provided by this plan, the Council must not grant development consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located

To ensure that building form including alterations and additions is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment.

8 South Sydney Development Control Plan 1997 - Urban Design

Rear Setbacks:

Buildings conform to the rear setback of adjoining buildings at ground and upper levels

The Council’s Decision Making Process

9 At the close of the hearing it became apparent that the grounds relied on by the Applicant raised the key issues of which documents relating to the respective setbacks of the land and the Applicant’s property were before the individual councillors when South Sydney Council resolved to approve the development application, and whether the individual councillors had in fact read these documents. Following the hearing before me the Council filed, on 3 September 2004, an undated affidavit of Anthony Pooley, a councillor and Mayor of South Sydney Council at the time the development application was determined, in relation to this issue and additional written submissions from the Applicant and the Council were received on this issue. As the decision making process of South Sydney Council in relation to the second development application is a threshold issue I will consider this first before turning to the grounds raised by the Applicant.

10 Mr Pooley attests in his affidavit to both the general process followed by South Sydney Council when considering development applications, and the specific process followed by South Sydney Council in relation to this particular development application. Mr Pooley’s evidence was that he chaired the meeting of the South Sydney Council’s Planning and Development Committee on 4 February 2004 when the development application was approved. He attests that the invariable practice of South Sydney Council was that the relevant file containing all the necessary documents generated in relation to a development application was placed before the councillors during meetings of the Planning and Development Committee. In particular, Mr Pooley specifically recalled that the file relating to this development application was physically present at the meeting on 4 February 2004.

11 Mr Pooley attests that at the meeting on 4 February 2004 an oral submission was made on behalf of the Applicant, as the owner of 9 Stewart Place, and the rear setbacks of the proposed development were raised as an issue of concern in this submission. It is Mr Pooley’s evidence that during the submission made on behalf of the Applicant the councillors were provided with and examined a coloured plan, commissioned by the Applicant, showing the respective rear setbacks of the relevant properties. Mr Pooley also recalls examining the assessment report prepared by South Sydney Council’s planning officers in relation to the development application (“the assessment report”).

12 Mr Pooley also attests that the invariable practice of South Sydney Council was that the relevant Council file was available for inspection when site visits were undertaken by the councillors and that a Council officer was generally always present during these inspections. Accordingly, it is likely that this occurred during the site visit to the land undertaken by the councillors in relation to the first development application.

The Applicant’s Submissions

13 The Applicant argued that, while it was the evidence of Mr Pooley that the relevant Council file was physically present during the meeting on 4 February 2004, there was no evidence that any of the councillors had looked at this file and taken into account the information contained in it in determining to grant the development consent. The Applicant argued that, as there was no evidence that any councillor had in fact viewed the Council’s file, the Court should infer that the Council, as a collegiate body, had only the Council officer’s assessment report and the additional material supplied by the Applicant before it at the meeting on 4 February 2004 and it was these documents only that were considered by the Council in resolving to approve the development application. The Applicant relied on the decision of McClellan J in Centro Properties v Hurstville City Council & Anor [2004] NSWLEC 401 (“Centro Properties”), as authority for the proposition that the Council cannot, in these circumstances, rely on the principles promulgated in Carltona Limited v Commissioner of Works [1943] 2 All ER 560 (“Carltona”). Accordingly, the Applicant argued that information contained on the Council’s files in relation to a development application cannot, without more, be assumed to be information known to the councillors in determining that development application.

14 The Council argued that South Sydney Council’s file relating to the development application was before the Council and, accordingly, that the information contained in that file was able to be considered by the councillors at the meeting on 4 February 2004 in addition to the assessment report and the material provided by the Applicant to the councillors. The Council relied on the decision of the Court of Appeal in Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74 (“Schroders”) as authority for its argument that as:

Carltona

Centro Properties

Finding

15 This aspect of the Applicant’s case raises the fundamental issue of how the collegiate decision making of a council is manifest. As has been noted in numerous cases before this Court, this is an issue which often causes difficulty for applicants seeking to challenge the decision making process followed by councils.

16 In Carltona the House of Lords recognised that government Ministers, who are entrusted with multifarious affairs, can act through an official employed in the ministry or the minister’s department and the law will not regard this a delegation of authority but rather a type of agency. Where an official employed in the ministry or the minister’s department has acted in relation a particular matter, knowledge in the possession of that official or the department will be assumed to be knowledge in the possession of the Minister. In Centro Properties McClellan J considered whether a council, as a collegiate decision making body, could rely on the material relating to the noise impacts of a proposal which one of the council’s planning officers deposed she was aware of as supporting the council’s decision to issue a development consent. In that case the council had relied on the Carltona principle to argue that as material relating to the noise impacts of the proposal had been considered by the council’s officer, although not by the individual councillors, that was sufficient to discharge the council’s collegiate responsibility to consider the noise impacts of the proposal. This argument was rejected by McClellan J who held at [55] that the Carltona principle “is confined to the circumstances where an officer exercises the decision-making power of the person or body given the responsibility for making the decision” and, accordingly, did not apply in circumstances where it is the council itself who makes the decision.

17 The Council in this case has not sought to rely on the Carltona principle. Further, the Council did not rely on information which was known only to a particular council officer. The facts are therefore different in a significant way from those in Centro Properties, and the findings of McClellan J in Centro Properties do not assist the Applicant.

18 In Schroders Ipp AJA, with whom Spigelman CJ and Sheller JA agreed, stated at [67] that while there was no evidence that the individual councillors had read a certain document provided to the council and placed on the relevant council file, “material in the possession of the Council will, generally, be treated as being in the possession of the councillors.” Ipp JA held at [72] that the principle in Jones v Dunkel (1959) 101 CLR 298 relating to the drawing of adverse inferences from a failure to provide evidence had no application to the failure of a council to provide evidence as to which particular documents were read by each councillor as it was for the applicant to rebut the presumption that the councillors had read the material in the possession of the council and, in the absence of such a rebuttal, the council was not required to adduce evidence that the particular document had in fact been read.

19 Schroders was not referred to by McClellan J in Centro Properties. However, McClellan J accepted at [37] of his judgment in Centro Properties that Parramatta City Council v Hale (1982) 47 LGRA 319 (“Hale”) and Currey v Sutherland Shire Council (1998) 100 LGERA 365 (“Currey”) were authority for the proposition that:

where there is no direct evidence of a consent authority's consideration of a matter, it may be difficult for a challenger to establish a failure to consider a relevant matter or consideration of an irrelevant matter. Confined to drawing an inference, that inference should only be drawn after anxious consideration: Hale; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373;

20 As the Council argued, the Applicant bears the onus of proving that the Council’s decision making erred. Schroders, the facts of which I consider are more analogous to the current circumstances than those considered in Centro Properties, establishes that, in the absence of evidence to the contrary, documents contained on a council’s files are presumed to be documents in the possession of the councillors. The facts of Schroders are set out briefly above.

21 Accordingly, I am of the view that the documents in South Sydney Council’s file relating to the development application should be treated as being in possession of the councillors of South Sydney Council when the development application was determined on 4 February 2004 and that the councillors must be presumed, absent any evidence to the contrary, to have read the material in this file. I do not accept the Applicant’s submission that because Mr Pooley does not attest positively as to whether individual councillors viewed the Council file, including relevant plans, I should infer that they did not.

22 It follows that in considering the grounds raised by the Applicant I can have regard to all the material contained in the relevant South Sydney Council’s file, a copy of which forms exhibit B, as being material which was:

(a) relevantly before South Sydney Council at the time the development application was approved; and

(b) considered by South Sydney Council in reaching the opinion required under cl 10 of the LEP and cl 28 of the DCP.

This material included the assessment report, the Second Respondents’ development application and plans and a number of submissions made by the Applicant raising, amongst other things, the impact which the rear setbacks of the proposal would have on the Applicant’s adjoining property at 9 Stewart Place.

Ground 1 – The Condition Precedent in the LEP

23 The parties agreed that cl 10 of the LEP is a condition precedent and that the Council must have formed the opinion that the proposal the subject of the development application was consistent with the objectives of the “residential 2(b)” zone, including the objective in cl 12(1)(c), prior to granting development consent. They disagreed on whether this condition precedent has been satisfied.

24 Following my decision at par 22 above, I must have regard to all the material contained in the relevant South Sydney Council file in considering the parties’ arguments in relation to this ground. Further, the undisputed evidence of:

The Applicant’s Submissions

25 The Applicant alleged that South Sydney Council, in forming the opinion that the proposal was consistent with objective (c) for the “residential 2(b)” zone, committed an error of law in that it either:

26 As set out above, cl 12(1) of the LEP provides that the objectives of the “residential 2(b)” zone include:

(c) To ensure that building form including alterations and additions is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment.

27 The Applicant argued that the effect of these alleged errors of law is that the condition precedent contained in cl 10 was not satisfied at the time the development consent was granted. Further, the Applicant argued the opinion required to be formed by cl 10 is a jurisdictional fact, being a fact on which South Sydney Council’s jurisdiction to grant a development consent was conditioned. The Applicant argued that the failure of South Sydney Council to lawfully form this opinion has the result that the development consent is vitiated.

28 The following facts are key to the Applicant’s arguments in relation to this ground:

29 Further, the Applicant relied on the fact that she had made a number of submissions to South Sydney Council, including:

30 The Applicant argued that the cumulative effect of the above is that the Council was required to specifically consider the impacts which the proposed rear setbacks of the building the subject of the development application would have on the amenity enjoyed by those occupying 9 Stewart Place in forming the opinion required by cl 10 of the LEP.

31 Counsel for the Applicant argued at par 37 - 38 of their written submissions that:

37. Sub-clause [12] (c), as the only relevant zone objective relating to built form, includes a number of components.

37.1 The first obligation is for the Council to be satisfied that the proposal is consistent with the objective of ensuring that the built form is one which is in character with the surrounding built environment.

37.2 The second obligation is that the Council is satisfied that the proposal is consistent with the objective of ensuring that the built form does not detract from the amenity enjoyed by nearby residents. It is immediately apparent that the reference to “nearby residents” operates at a greater level of particularity than, for example, the reference to the medium density residential areas in sub-clause (a). Sub-clause (c), in respect to the second obligation, requires a more specific focus – on nearby residents.

37.3 The third obligation is for the Council to be satisfied that the proposal is consistent with the objective of ensuing that the built form does not detract from the existing quality of the environment (again, moving to a higher level of generality than the second obligation).

37.4 Each of the obligations is characterised by the opening words “to ensure”. Contrast, for example, the words “to facilitate” and “to provide” which qualify some of the other sub-clauses. Only sub-clause (c) is qualified by the words “to ensure”.

38 This analysis is relevant to the nature of the obligation imposed by clause 10(3), read in conjunction with clause 12(1)(c). The content of the objective (as to which there must be an opinion of consistency) is expressed in mandatory terms (to ensure …). The content relates to one specific aspect of development – its built form. The content, relevantly, is to ensure that the built form does not detract from the amenity enjoyed by a particular and narrow class – namely, nearby residents. The opinion to be formed, therefore, had a well defined and quite specific character.

32 Accordingly, the Applicant argued that the assessment report misdirected the Council in a key matter when it concluded that the proposal “is consistent with the zone objectives” and “Specifically the proposal meets the requirements of Clause 10 and Clause 12(1)… (c) of LEP 1998 in that the amenity and character of the locality will be maintained by the proposal.” To make good its argument that the Council had misdirected itself or failed to correctly form the necessary opinion, the Applicant’s submissions were directed to demonstrating the inadequacies of the Council’s assessment report which it argued was the only document from the Council’s file which it could be assumed was considered by the councillors in determining to grant the development consent.

33 The Applicant argued that the assessment report should be considered in parts so that the part headed “The Planning Context” is to be regarded as addressing the necessary pre-condition required by cl 10 of the LEP while the part headed “The Issues” should be read as relating only to merit considerations. In other words, the Applicant argued that the discussion of the rear setback in the part of the assessment report headed “The Issues” could not inform the opinion of the Council mandated by cl 10 of the LEP. Only that part headed “The Planning Context” was directed to cl 10.

34 The Applicant noted that while the assessment report, in dealing with objective (c) in the part headed “The Planning Context”, identified a number of issues, such as the maximum ridge height of the proposed dwelling compared to the existing dwelling, no reference was made to the fact that the rear setback of the proposed building extended beyond the rear setback of the adjoining property owned by the Applicant in reaching the conclusion that “the proposal as amended does not detract from the amenity of nearby residents, nor does it detract from the environment.”

35 The Applicant argued that the absence of any reference to this issue which had been the subject of detailed submissions from the Applicant, discloses a fundamental misunderstanding of the obligations of the Council in forming the opinion required by cl 10 of the LEP. The Applicant argued that these defects were not cured by the remainder of the assessment report. In this regard the Applicant noted that while the part of the report headed “The Planning Context” discussed the rear setback of the proposed building in general terms, in the context of the control contained in the DCP it did not, at any point, directly discuss the impact which the rear setback of the proposed building would have on the amenity enjoyed by the Applicant at 9 Stewart Place.

36 The Applicant relied on Clifford v Wyong Shire Council (1996) 89 LGERA 240 (“Clifford”), Currey, Franklins Limited v Penrith City Council & Anor [1999] NSWCA 134 (“Franklins”) and Manly Council v Hortis (2001) 113 LGERA 321 (“Hortis”) to support her arguments in relation to this ground.

The Council’s Submissions

37 The Council argued that the Applicant’s approach to the interpretation of the assessment report was overly legalistic in circumstances where the Council and its officers were not exercising judicial functions and the Council was under no statutory obligation to give reasons for its decision.

38 Further the Council argued that defects, if any, in the assessment report were cured by the submissions made by the Applicant (see par 29 above) and the legal advice which South Sydney Council received from its solicitors advising the Council of the need to form the opinion mandated by cl 10 of the LEP in considering the development application. The Council argued, and I have held that this argument is correct, that these documents, which were on the relevant South Sydney Council file, were before South Sydney Council when it made its decision to issue the development consent. The Council argued that, having regard to the whole of the assessment report, the legal advice obtained by the Council and the submissions made by the Applicant, the clear inference is that South Sydney Council was aware of its obligation under cl 10 and the consistency of the proposal with the objective contained at cl 12(c) was given accurate, real and genuine consideration by South Sydney Council in determining to grant the development consent.

39 The Council argued that the decisions of Clifford, Currey, Franklins and Hortis, relied on by the Applicant could be distinguished on the basis that these cases were concerned with clauses in environmental planning instruments which stated that a consent authority “must have” regard to particular matters prior to granting consent and hence were held to be “specific pre-conditions” to the grant of consent. The Council argued that cl 10 of the LEP was not such a “specific precondition” as it merely prohibited the consent authority from granting a consent unless it had formed the opinion required by the clause. Further the Council also argued that the facts here are different to those considered in Clifford, Currey, Franklins and Hortis as in those cases the evidence was that the relevant councils had not considered at all the matters stipulated as preconditions in the relevant environmental planning instruments. The Council argued that the facts of those cases can be contrasted to those applying here where the Council, as demonstrated by the assessment report:

Finding

40 As stated above the parties agreed that cl 10 of the LEP contained a condition precedent about which the Council had to be satisfied, but disagreed as to whether this had been met.

41 The Applicant has argued that the Council officer’s assessment report, which was the only document before the Council, was so inaccurate that it caused the Council’s decision making to be flawed. I have already held that the Council’s decision making is not limited to a consideration of that assessment report alone. In addition to considering the assessment report it is therefore necessary for the Court to determine, regardless of whether the assessment report was flawed, whether the overall decision making process followed in relation to the formation of the Council’s opinion on the condition precedent required by cl 10 was satisfactory.

42 In relation to the assessment report, the Applicant has argued that because the Council officer’s assessment report did not refer to the rear setback of No 9 Stewart Place at all in the part of the assessment report headed “The Planning Context” which was directed to cl 10, the Council’s decision making miscarried. I agree with the Applicant that the discussion of cl 10 and cl 12(c) of the LEP contained in the part of the assessment report headed “The Planning Context” does not consider the rear setbacks of the proposal.

43 Rear setbacks are also considered in relation to the DCP in that part of the assessment report headed “The Planning Context”. At p 30 the assessment report states that:

Rear setback controls relate to the adjoining buildings which in this case relates to a row of terrace style dwellings.

It is noted that the rear setback of the dwellings that comprise the row of terraces on the southern side of Stewart Place (No 1, 3, 5, 7, 9, and 11) are not uniform with Nos. 1 and 3 sharing a similar rear alignment.

No. 5 Stewart Place has less of a rear setback, with No 7 and 9 again having a different setback from the adjoining terraces. It is noted that the proposed rear setback of the subject site is greater than adjoining terraces at No 1, 3, 5, and 7 Stewart Place.

The existing dwelling has a ground floor rear setback of 13.5 metres with a first floor rear set back of 19 metres.

The proposal seeks a ground floor rear setback at 10.2 metres with a rear first floor setback of 15.4 metres.

The rear setback is considered reasonable in terms of the existing built form and the pattern of the streetscape, and provides separation to achieve visual and acoustic privacy.

44 In addition, p 35 of the assessment report further addresses the rear setbacks of the proposal under the heading “The Issues” as follows:

The rear setback control requires setbacks to comply with adjoining buildings and not just the immediately adjoining buildings. This is particularly relevant to the rear alignments of terrace style development. Of relevance

the rear alignment of No 1, 3, 5 and 11 Stewart Place extend beyond the rear alignment of the existing dwellings at No, 7 and No 9 Stewart Place. The proposed dwelling will have a rear alignment that conforms to the rear alignments of No 1 and 3 and is less than the rear alignments of No 5. This is considered reasonable in the circumstances.

45 I consider the assessment report should be considered as a whole. As Kirby P stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291:

The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law …

46 I accept the Council’s submission that any deficiencies contained in that part of the assessment report headed “The Planning Context” which was directed to the condition precedent contained in cl 10 are cured by the later references in the assessment report to the rear setbacks of the proposal where the assessment report makes specific reference to the rear setbacks of the proposal and compares this to the rear setbacks of other properties in the street, including 9 Stewart Place.

47 When read as a whole, I consider the assessment report cannot be considered to be misleading or to have misdirected the councillors in relation to the opinion they were required to form under cl 10. The councillors were clearly directed to the relevant parts of the LEP and advised of their obligations in relation to cl 10 and cl 12.

48 Further, in accordance with my finding at par 22 above I consider that regard must be had to other documents on the Council’s file, which I have held were before South Sydney Council, and other investigations undertaken by councillors in determining whether or not the Council misdirected itself or failed to consider relevant matters when forming an opinion under cl 10 of the LEP. This includes:

49 Having regard to all of the above information, which information was before South Sydney Council in determining the development application, I consider that South Sydney Council was aware of and should be presumed to have understood its obligations under cl 10 of the LEP. Accordingly it did not misdirect itself on critical matters or fail to meet the required test. Further, it had enough information before it to form the opinion required by cl 10 of the LEP.

50 While the Applicant sought to argue that cases such as Currey, Franklins and Hortis supported her case I consider they do not apply because the facts are quite different to those before me. Currey concerned the issue of whether the relevant council had addressed a clause in the relevant local environmental plan which contained a prohibition on the grant of consent unless the Council was satisfied of certain matters in granting a development consent to which the relevant clause applied. Stein JA accepted the principle enunciated in Hale that the collegiate body of the council may be aware from its general knowledge of the relevant considerations under the particular local environmental plan and further held that individual councillors may be assumed to bring their individual expertise and local knowledge to the consideration of the particular development application. However Stein JA (with whom Mason P and Handley JA agreed) noted that inferred knowledge can only play a limited role and held at p 375 that, as the relevant officer’s report and its appendices merely referred to the relevant clause in local environmental plan and did not contain any information regarding the prohibition and the need to overcome it before granting consent, the inference should be drawn that the council failed to address the pre-condition. These facts are materially different to those before me.

51 In Franklins the Court of Appeal found that the pre-condition for approval, being the satisfaction of a particular situation, had not been met. Further, the Court of Appeal held that local knowledge held by the Councillors was irrelevant because what was required was actual knowledge of the pre-condition about which the Council had to be satisfied and that knowledge was lacking. That circumstance is quite different to that before me where the proposed development was relatively modest in the context of this LEP, the councillors are presumed to have local knowledge and in addition several had been to the site of the proposed development, and they had documents before them alerting them to all the relevant issues.

52 In Hortis the Court of Appeal reviewed the cases of Currey, Clifford and Franklins and held:

The question is whether the material relied on by the council provides support for an inference that it was aware of the specific issue which was of critical importance; namely that it had no power to grant consent unless it was satisfied that the development would have a detrimental effect on the amenity of the Foreshore Scenic Protection Area.

As appears from what we have earlier said, an argument to similar effect was considered in detail and rejected by the Court in Franklins. Both Currey and Franklins ([31]-[35]) demonstrate that an inference that a consent authority considered a specific precondition to its power to grant a development consent will not normally be derived from material which demonstrates no more than that the consent authority was aware of the issues which were relevant to its decision whether or not to grant consent if it had power to do so. In the present case, it is unnecessary to do more than emphasise a point made by Stein JA in Currey (at 375). In the absence of express reference to the effect of cl 17 of the LEP in the extensive available information combined with the absence of any reference to cl 17 was more likely to cause the council to overlook that cl 17 prohibited the council from granting consent to the development unless it was satisfied that it would not have a detrimental effect on the Foreshores Scenic Protection Area.

53 In this case the Council was clearly made aware of its obligations and, it can be inferred from the evidence, had sufficient material before it to discharge its obligation under the LEP.

54 Here the condition precedent relates to the formation of an opinion rather than the determination of a particular circumstance, as was arguably the case in Hortis. Essentially the Applicant is arguing that, because she considers her amenity is affected by the proposed rear setback, this is a relevant matter which the Council is required to apply in determining whether the condition precedent contained in cl 10 of the LEP is satisfied. In my view that is really an argument about the merits of the proposal. The fact that the Applicant has formed a different view on this issue from the Council does not mean the Council has erred. The Applicant must fail in relation to this ground.

55 I should indicate that I consider the written submissions made by the Applicant adopted a highly legalistic approach to the Council’s decision making processes. While these submissions were tempered in oral address it must be said that if the written submissions were correct, councils would effectively need to have their key assessment reports drafted and approved by a competent lawyer. This is neither a desirable nor practical alternative for council decision making processes.

56 Part E of the DCP relates to environmental design criteria and includes criteria relevant to site planning, building form and appearance, heritage and conservation, amenity, energy efficiency and operational matters. The DCP describes these controls in Section 4 of Part A of the DCP under the heading “How to Use this Plan” as follows:

The controls complement the performance criteria and are examples of ways to achieve the performance criteria. They are not an alternative prescriptive form of regulation nor do they preclude other ways

57 Section 2.4 of Part E of the DCP provides that the following performance criteria apply in relation to setbacks:

The setback of buildings:

. responds to the setbacks of adjacent development, the existing building form and the pattern of the street scape;

. provides separation to achieve visual and acoustic privacy to habitable rooms adjacent to the street

58 The objective of the provisions relating to setbacks contained in s 2.4 of the DCP is stated in s 2.4 of the DCP as follows:

To encourage setbacks that … protect adjoining buildings from overlooking, overshadowing and general loss of amenity.

59 The controls for rear setbacks specify:

Buildings conform to the rear setback of adjoining buildings at ground and upper levels

The Applicant’s Submissions

60 The Applicant argued that South Sydney Council failed to adequately consider the requirements relating to rear setbacks contained in s 2.4 of Part E of the DCP in determining to grant development consent contrary to s 79C(1)(a)(iii) of the EP&A Act.

61 The Applicant relied on Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24, Weal v Bathurst City Council (2000) 111 LGERA 181, Zhang v Canterbury City Council (2001) 51 NSWLR 589 (“Zang”) and North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435 amongst other cases to argue that where, as here, a statute prescribes certain matters which must be considered, those matters must be taken into account and given weight as a “fundamental element” of the decision making process and not merely as a matter to be considered along with such other matters as may be relevant. The Applicant argued in the written submissions prepared by her counsel that:

42. … In order to consider the control contained in the DCP as required by s 79C(1)(a)(iii), the Council had to call its own attention to:

42.1 the identification of the members of the class of adjoining buildings;

42.2 the identification of the rear building setback of those adjoining buildings at ground and upper levels;

42.3 the rear building setback of the proposed building at ground and upper levels;

42.4 whether the proposed rear building setback at ground and upper levels conformed to the rear building setback of the adjoining building at ground and upper levels.

62 The Applicant once again pointed to perceived inadequacies in the assessment report to support her submission that South Sydney Council had failed to follow the above steps in considering the control relating to rear setbacks contained in the DCP. In particular, the Applicant argued that, while the assessment report identified the relevant control in the DCP and considered the rear setbacks of the proposal against the rear setbacks of other buildings in Stewart Place, the assessment report failed to give sufficient weight to the fact that the rear setbacks of the proposal did not conform to the rear setback of the Applicant’s property at 9 Stewart Place, being the only single residence which immediately adjoined the land.

63 The Council argued that the range of provisions in Part E of the DCP suggest that the control relating to rear setbacks was not absolute, but rather was one factor to be considered by South Sydney Council in determining the development application.

64 The Council accepted that Zhang established that the provisions of a DCP must be considered by a consent authority as a fundamental element in, or a focal point to, the decision making process. However the Council relied on the decision of Sheahan J in Cobden-Jones & Anor v Woollahra Municipal Council & Ors (2001) 118 LGERA 41 (“Cobden-Jones”) to argue that, as the control relating to rear setbacks contained in s 2.4 of Part E of the DCP was merely one of many relevant matters, significant weight need not necessarily be given to it. In this regard the Council argued that the rear setback control was one of several controls contained in Part E of the DCP.

65 Further, the Council argued that the assessment report makes it clear that South Sydney Council did give proper, genuine and realistic consideration to the rear setback control contained in the DCP. The Council argued that the rear setback control contained in the DCP, when read as a whole, anticipates that the Council will consider the setbacks in terms of the streetscape and does not confine the Council’s consideration to immediately adjoining buildings, such as the property owned by the Applicant at 9 Stewart Place. The Council argued that the assessment report not only set out the rear setback control as contained in s 2.4 of Part E of the DCP but also considered this control in light of the proposed development.

66 The Council argued that the relevant portions of the assessment report, including that set out above, make it clear that South Sydney Council considered the rear setback of the proposed development in terms of the amenity impact on the Applicant’s property at 9 Stewart Place as required by the performance criteria and objectives relating to rear setbacks contained in the DCP. The Council argued that the assessment carried out by South Sydney Council demonstrates that the Council considered the control contained in s 2.4 of Part E of the DCP and was of the view that the proposed rear setbacks:

Finding

67 South Sydney Council was required to give significant, but not determinative, weight to the provisions of the DCP relating to rear setbacks in determining the development application: Zhang. It is clear from the parts of the assessment report set out above at par 43 to 44 that the Council officer did directly address the issue of rear setbacks and, in doing so, referred to the Applicant’s property. The Applicant argued that, because the assessment report does not state specifically that the rear setback of the proposed development at 11 Stewart Place does not conform with the immediately adjoining property at 9 Stewart Place, there has been a failure in the Council’s consideration in that insufficient weight was given to that fact as required by the DCP. Such a submission is not borne out by the relevant DCP provisions on setback which do not refer to the immediately adjoining properties but rather adjoining properties. I do not consider the Council report fails to adequately address the relevant rear setback controls in the DCP.

68 In any event, the Applicant and her advisers had herself drawn the rear setback issues in relation to her property to the attention of South Sydney Council on numerous occasions, along with the information that she considered that the fact that the proposed building did not conform to the rear setback of her property at either ground or upper levels would adversely impact on the amenity enjoyed by her at her property. It is clear the Council must have been aware of the relationship between her property and that of the proposed development at the time it made its decision.

69 I accept the Council’s submissions that in determining whether the proposal complied with the control it was open to the Council to have regard to the streetscape as a whole and not just to the properties, such as the Applicant’s, which immediately adjoin the land. Further, a consideration of the DCP as a whole makes it clear that the control relating to rear setbacks must be considered in relation to the relevant performance criteria (as set out above). It was open to the Council to consider these were satisfied by the proposal.

70 I consider the Council was well aware of the matters it had to consider in relation to rear setbacks. Having regard to the provisions of the assessment report extracted at par 43 to 44 above, and the further information provided by the Applicant to South Sydney Council (see par 29 above), I am of the view that the Applicant’s submission that South Sydney Council failed to adequately consider the requirements relating to rear setbacks contained in s 2.4 of Part E of the DCP in determining to grant the development consent cannot be sustained. The Applicant has not succeeded in showing that the Council failed to give real and genuine consideration to the provisions of the DCP, and accordingly, must fail in relation to this ground.

71 The Applicant argued that it was not reasonably open for South Sydney Council to find that the proposal the subject of the development application was consistent with:

The Council’s Submissions

72 The Council relied on Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 to argue that in order to succeed on this ground the Applicant was required to show that South Sydney Council’s decision was so unreasonable that no reasonable council could ever have formed it. The Council argued, and the Applicant accepted, that this is a stringent test: Weal.

73 In relation to the objective set out at cl 12(c) of the LEP, the Council argued that it is clear from the assessment report that the impact of the development on the Applicant’s property was assessed in various areas such as overshadowing, privacy, noise and setbacks. The Council argued that, in light of this detailed consideration, the opinion formed by South Sydney Council that the proposal would not detract from the amenity enjoyed by the Applicant’s property was one which it was reasonably open to it to make.

74 In relation to the control contained at s 2.4 of Part E of the DCP, the Council argued that as:

75 As Mason P stated in Weal at p 188:

When, “the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another a court should proceed with caution... lest it exceed its supervisory role by reviewing the decision on its merits” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 per Gleeson CJ and McHugh J, quoting Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42). The decision must amount to an abuse of power (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290). See also Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31.

I agree with the Council that the Applicant has not succeeded in meeting this stringent test.

76 In relation to the objective contained at cl 12(1)(c) of the LEP the assessment report notes that:

Specifically the proposal meets the requirements of Clause 10 and Clause 12(1)… (c) of LEP 1998 in that the amenity and character of the locality will be maintained by the proposal.

77 In relation to the control contained at s 2.4 of Part E of the DCP, I have already held above that South Sydney Council was required to give significant weight to this control. However, as set out above, I am of the view in determining whether the proposal the subject of the development application complied with the control it was open to South Sydney Council to have regard to the streetscape as a whole and not just to the properties, such as the Applicant’s, which immediately adjoin the land.

78 Further the Council considered a number of factors in relation to rear setbacks and other amenity issues under the DCP. That consideration was sufficient to form the view that the relevant performance criteria (as set out at par 57 above) were satisfied by the proposal. Given this, it cannot be said that the opinion formed by South Sydney Council that the rear setbacks of the proposal were acceptable is one which it was not reasonably open for it to make. The Applicant must fail on this ground also and therefore in her appeal.

79 As the Applicant has been unsuccessful the usual costs order is that she should pay the First Respondent's costs. As I have not heard any submissions on costs however, I propose that I make that costs order but that such an order not take effect for two weeks in case one of the parties wishes to apply for a variation of that order. As the Second Respondents did not appear at the hearing I will reserve the question of costs in this regard.

80 I make the following orders:

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Citations

Gee v Council of the City of Sydney [2004] NSWLEC 581

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CITATION:	Gee v Council of the City of Sydney and Ors [2004] NSWLEC 581
PARTIES:	APPLICANT: Elizabeth Gee FIRST RESPONDENT: Council of the City of Sydney SECOND RESPONDENT: Shauna Alexander and William Hywall Clark
FILE NUMBER(S):	40508 of 2004
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- whether all documents on the relevant council file should be regarded as being before the council in determining to grant consent - whether council properly considered if a condition precedent contained in the LEP was met - whether council gave real consideration to the provisions of its DCP - whether the council's decision that the proposal satisfied the precondition in the LEP and the requirements of the DCP was manifestly unreasonable.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 79C South Sydney Local Environmental Plan 1998, cl 10, cl 12(1)
CASES CITED:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Carltona Limited v Commissioner of Works [1943] 2 All ER 560; Centro Properties v Hurstville City Council & Anor [2004] NSWLEC 401; Clifford v Wyong Shire Council (1996) 89 LGERA 240; Cobden-Jones & Anor v Woollahra Municipal Council & Ors (2001) 118 LGERA 41 ; Currey v Sutherland Shire Council (1998) 100 LGERA 365 ; Franklins Limited v Penrith City Council & Anor [1999] NSWCA 134; Jones v Dunkel (1959) 101 CLR 298; Manly Council v Hortis (2001) 113 LGERA 321; Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; North Sydney Council v Ligon 302 Pty Limited (1995) 87 LGERA 435; Parramatta City Council v Hale (1982) 47 LGRA 319 ; Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74; Weal v Bathurst City Council (2000) 111 LGERA 181; Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	19/08/2004 20/08/2004
DATE OF JUDGMENT:	11/23/2004
LEGAL REPRESENTATIVES:	APPLICANT: Dr J. Griffiths SC with Ms J. Jaygot instructed by Abbott Tout FIRST RESPONDENT: Mr M. Craig QC instructed by Maddocks SECOND RESPONDENT: No appearance