Gilbank v Bloore (No 2) - [2012] NSWLEC 273

Land and Environment Court

New South Wales

Medium Neutral Citation: Gilbank v Bloore (No 2) [2012] NSWLEC 273
Hearing dates: 7 - 9 November 2012
Decision date: 20 December 2012
Jurisdiction: Class 4
Before: Pain J
Decision:
1. The amended summons filed on 10 August 2012 is dismissed.
2. Costs are reserved.

Catchwords: JUDICIAL REVIEW - failure to consider mandatory relevant consideration - determination of development consent unreasonable, illogical or irrational - failure to accord fundamental weight to development control plan
Legislation Cited: Environmental Planning and Assessment Act 1979 s 79C
Orange Development Control Plan 2004 Pt 7.7
Orange Local Environmental Plan 2000 (repealed) Pt 12
Uniform Civil Procedure Rules 2005 r 31.19(3)
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102
DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156
Ex parte Helena Valley/Boya Association (Inc) (1989) 2 WAR 422
Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113
Gee v Council of the City of Sydney [2004] NSWLEC 581
Gilbank v Bloore [2012] NSWLEC 172
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 55 SR NSW 243
Haughton v Minister for Planning [2011] NSWLEC 217; (2011) 185 LGERA 373
INL Group Ltd v Director-General of the New South Wales Department of Planning [2011] NSWLEC 256
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
King v Great Lakes Shire Council (1986) 58 LGRA 366
Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109
Marrickville Metro Shopping Centre Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division) [2011] NSWLEC 191
Parramatta Council v Hale (1982) 47 LGRA 319
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Puhlhofer v Hillingdon London Borough Council [1986] AC 484
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Rossi v Living Choice Australia Ltd (t/as Living Choice) [2012] NSWLEC 112
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Sean Investments Pty Ltd v MacKeller (1981) 38 ALR 363
Vilro Pty Ltd (In Voluntary Liquidation) v Roads and Traffic Authority NSW [2010] NSWLEC 234; (2010) 179 LGERA 47
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
Texts Cited: Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action, 4th ed (2009) Thomson Reuters
Category: Principal judgment
Parties: Scott Peter Gilbank (First Applicant)
Margaret Audley (Second Applicant)
Robert Graham Bloore (First Respondent)
Pamela Joyce Bloore (Second Respondent)
Orange City Council (Third Respondent)
Representation: Mr C Ireland (Applicants)
Ms F Berglund (First and Second Respondents)
Mr I Hemmings (Third Respondent)
McPhee Kelshaw Solicitors (Applicants)
Campbell Paton & Taylor (First and Second Respondents)
Marsdens Law Group (Third Respondent)

File Number(s): 40343 of 2012

Judgment

In these judicial review proceedings the two Applicants challenge the grant of development consent by Orange City Council (the Council) to the First and Second Respondents for alterations to their house and the addition of a two-car garage in the front yard at 48 Kite Street Orange (the property). The Applicants are the neighbours on either side of the property. A declaration of invalidity of the development consent and a consequential order that the development consent not be relied on are sought.

The property is within the Central Orange Heritage Conservation Area (HCA) listed under the Orange Local Environmental Plan 2000 (repealed) (the LEP). Next door to the property on the eastern side at number 50 is Mena, a significant heritage listed property owned by the First Applicant. Mena was listed in Sch 8 of the LEP as being of national heritage significance, and was also listed on the Register of the National Estate.

An existing two-storey house is constructed on the property set back from the Kite Street frontage for a distance of approximately 30m. Due to the setback of the house from Kite Street, the verandah and the principal rooms on the western side of Mena overlook the front garden of the property, between the northern elevation of the existing house and the boundary of the property with Kite Street. Mena is set back about 8m from Kite Street.

The existing single garage within the house on the property is served by a straight driveway located along the eastern boundary of the property in the front yard. That driveway comprises two concrete strips and a grassed central strip. The development consent approves the construction of a new detached double garage, with dimensions 6.36m x 6.54m and a floor area in excess of 41sqm (new double garage) in the front garden of the property, forward of the existing house; the construction of a new sealed apron area between the proposed new driveway and the entry to the new double garage; and a two storey addition on the eastern side of the existing house which includes the existing garage at the front of the house.

The eastern boundary between Mena and the property is irregular with a vacant space between the house on the property and the eastern boundary with a "dog leg" bend at the front eastern corner of the house. The Applicants' case is based largely on this vacant area being trafficable, allowing car access to the rear yard. The Applicants referred to this area as the eastern driveway. It was not used for that purpose by the First and Second Respondents before the development consent was granted and is not to be so used under the approved new development. I will refer to it as the eastern side passage.

Residential development was permissible with consent from the Council under the 2(a) urban residential zone in the LEP. The Orange Development Control Plan 2004 (the DCP) also applies. Part 7.7 deals with design elements for residential development, and streetscape, and includes a number of planning outcomes such as heritage.

Council's assessment

A copy of the Council's file was tendered and was referred to by both parties. The documents referred to by the parties are now summarised.

On 28 July 2011 the builder for the First and Second Respondents provided draft plans to the Council regarding a proposed development on their property which included a proposed double garage.

In a pre-development application (pre-DA) report dated 6 August 2011 the Council's heritage adviser Mr Aitken stated:

● Regarding the proposed double garage. As noted above, the intention in historical precincts is to locate car parking and garages behind the existing building line. The proposed double garage is positioned in the front garden between the building and the footpath making it relatively visible from Kite Street. There are other implications with the loss of garden area including the need to relocate the paved access. I would recommend that the garage as proposed not be approved and the suggested attached options be explored. These options include a driveway along the western [eastern] boundary, demolition of sections of the western [eastern] side of the house, extending the existing enclosed garage to the west [east] and construction of an open carport on the western [eastern] boundary.

Recommendations

The following suggestions may assist in the determination:

● Clarify the design brief which appears to have overlooked the relatively large lot at the rear with capacity to extend without compromising the existing more subtle car parking arrangements.

● Relocate any proposed garage to follow the intent of the DCP 1994 [sic] objectives and planning outcomes.

● Explore options for reworking of the existing garage if additional car spaces are required.

The Council provided Mr Basha, the First and Second Respondents' town planning consultant, with a copy of Mr Aitken's advice on 5 September 2011.

The DA received on 22 September 2011 was for alterations and additions to an existing house and construction of a detached garage. It was lodged on behalf of the First and Second Respondents by Mr Basha. The Statement of Environmental Effects (SEE) dated September 2011 describes the proposal including that a new double garage will be built forward of the existing house. The existing driveway along the front eastern boundary of the site will be retained but a widening will be provided on the eastern side of the new garage to facilitate vehicle manoeuvring and forward exit to Kite Street. In assessing the matters under s 79C(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act), the SEE states that the proposal was designed to minimise impact upon the HCA, in which the site is located, and on Mena, to maintain the heritage, landscape and scenic features of the city. It sets out planning outcomes of the DCP relating to building appearance, heritage, and setbacks; and provisions of the LEP including cl 76 and cl 77 relating to heritage.

The SEE contains a statement of heritage impact in response to the NSW Heritage Office's Statement of Heritage Impact Guidelines identifying five aspects of the proposal which respect or enhance the heritage significance of the HCA, and of Mena. Relevantly, the new double garage would not be easily detected as an addition to the streetscape as it would be setback more than 19m from Kite Street. The buildings on either side of the site (which includes Mena) have setbacks of between 5 and 8m from Kite Street. The design of the garage respects the existing house and the streetscape. For example, the upper level windows, the front door and windows to the east of the front door will remain visible in the front elevation of the house. The house will remain the dominant visual element in relation to the new garage. The other additions to the house will be largely confined to the existing building footprint/form. The garage will not face Kite Street. The proposed door finish will be a textured panel lift style that will blend with the external wall colour. The proposal will not significantly alter the visual or spatial relationship between the site and Mena. For example, the front eastern boundary of the site remains as a driveway. The SEE notes that the location of the garage was chosen because of the difficulties in positioning it in the rear yard of the site. The garage will be as far away from Mena as possible and is set behind the main building line. The position of the garage will not diminish any key views onto Mena nor will it impinge on its curtilage or setting. The SEE notes that the First and Second Respondents consulted the First Applicant, Mr Gilbank, who provided a letter supporting the proposal.

The SEE reports that the following sympathetic solutions were considered but not accepted:

● As indicated in Figure 2, the ability to site the garage in the rear yard is constrained by access difficulties caused by the irregular eastern boundary of the site and its close proximity to the north eastern corner of the dwelling.

● Notwithstanding the manoeuvring issues, the establishment of the garage in the rear yard along with the required driveway area to facilitate reversing and turns would consume a considerable section of the rear yard. This would not only impact upon the existing gardens but would also compromise the amenity of the area as private open space. Further, the introduction of vehicle areas to the private open space at the rear has certain implications in regard to safety and is considered an inferior option when there is ample opportunity and reasonable justification to use the front of the property for garaging.

● It is not practical to retain the existing garage as it is too narrow and does not provide sufficient garaging for the new owners.

● It is not possible to widen or extend the existing garage to the east because the irregular eastern boundary would significantly constrain movement into and out of the garage. This option would also reduce access to the rear yard.

Attached to the SEE is a site analysis plan dated 8 September 2011 prepared by Mr Basha which states that all dimensions and areas shown are subject to survey, including the location of the buildings which are indicative only. Also attached are two plans prepared by Mr Basha showing the locality and streetscape. Seven plans created by TK Worboys including a site plan dated 20 September 2011 are also attached. A further attachment is Mr Gilbank's letter of 19 September 2011 expressing his view that the garage will not have any visual impact or overshadowing on Mena.

On 23 September 2011 the Council notified residents neighbouring the Bloores' property including Mr Gilbank and Ms Audley, the Second Applicant of the Respondents' proposed development.

The Council's development assessment checklist form identifies planning outcomes including PO 7.7-2 "Building Appearance" for which the author has commented "located front of dwelling - what other options exist - comment design". For PO 7.7-3 "Heritage" the author has commented "HCA - also 'Mena' located adjoining".

Mr Basha's letter to the Council dated 14 November 2011 responds to a request by the Council dated 7 and 10 November for additional information. This addresses issues such overshadowing and impeding of views from Mrs Audley's living room and bedroom windows.

Mr Gowing, the Council's town planner, prepared a report dated 18 November 2011 (the first Gowing report) which recognises that the proposed garage represents a departure from the DCP. The DCP requires garages to be set back behind the building façade up to 3m in front of the main façade. After describing the proposal, the report mentions that the Council must consider relevant matters under s 79C of the EPA Act and identifies provisions of the LEP including cl 76 "Consideration of development affecting heritage items or heritage conservation areas". It recognises that the impact on Mena must be considered, mentions key points of the SEE, and records that the DA was referred to the Council's heritage advisor who advised that an alternative location to the rear of the house would be more suitable. The report quotes the statements about alternative solutions at par 13 above and notes that access to the rear of the site is constrained by irregular boundary alignment, proximity of the building to the boundary, and insufficient width of the eastern side passage. Mr Gowing found that the development would not adversely impact on the HCA and the impact on Mena would be minimal. He concluded that the development is acceptable on heritage grounds, and is compliant with Pt 12 of the LEP (which includes cl 76, 77).

Mr Gowing considered design elements in Part 7 "Development in Residential Areas" of the DCP including neighbourhood character, building appearance, and setbacks (PO 7.7-4). Mr Gowing quotes guideline (h) and comments that the proposed garage does not comply with that guideline as it is positioned wholly in front of the house. As the house is already removed from the streetscape by a large setback, he considered that the garage would not excessively dominate the façade of the house or the streetscape at large. Mr Gowing concludes that notwithstanding non-compliance with the guideline, the proposed garage was acceptable on merit. He states that heritage issues were considered under cl 76 of the LEP (PO 7.7-3). In relation to views (PO 7.7-9), Mr Gowing stated that the DCP requires consideration of vistas of heritage items or landmarks from the public domain, not across private land. With regard to a submission received raising view loss into the open space area in the front setback of the site, Mr Gowing did not consider that a view into private property from a neighbour constituted a significant view corridor. In considering the likely impacts on the site, as required by s 79C(1)(b), Mr Gowing stated that heritage was considered earlier in the report and that the proposal would not detract from either the HCA or the significance of Mena. Mr Gowing recommended that the DA be approved subject to conditions.

This report attached Mr Basha's site analysis plan; various TK Worboys' plans, including an amended site plan indicating proposed drainage/shadow diagrams dated 5 December 2011 (replacing the earlier site plan dated 20 September 2011); letters from Mr Gilbank dated 19 September, 8 October and 28 November 2011 (including attachments); a letter from Ms Audley dated 18 October 2011; and a proposed notice of determination including conditions. (The report was amended after 6 December and before 12 December 2011 and presented at the Council's Sustainable Development (SD) Committee meeting on 12 December 2011.)

Mr Gilbank wrote a letter to the SD Committee dated 28 November 2011 stating that after reviewing the plans he realised that the development would impact on Mena. Mr Gilbank referred to Mr Gowing's first report stating that there is insufficient width to the east of the site to facilitate access of a vehicle to the rear. He attached photographs and a survey of the First and Second Respondents' property conducted by Craig Jacques, registered surveyor, dated 15 June 2010 to argue that the eastern side passage can be accessed by motor vehicles. Mr Gilbank argued that a garage at the front of the site would have greater impacts than one located at the rear.

Mr Gowing's second report dated 29 November 2011 records that Council staff discussed with Mr Basha whether alternative design options had been considered. It repeats the statements in the SEE quoted at par 13 above. Mr Gowing states that Council staff were satisfied with the information provided by the First and Second Respondents, as outlined in his first report. He referred to his first report as dealing with the inconsistency of the proposed garage with the DCP. Mr Gowing recommended approval of the DA notwithstanding non-compliance with the DCP.

On 1 December 2011, at a SD Committee meeting the Council resolved to defer consideration of the DA until after a site inspection. The Council conducted an inspection on 6 December 2011. This inspection was attended by the Applicants, the First and Second Respondents, Mr Basha, Mr Gowing, several councillors and other Council staff, inter alia. No minutes were recorded.

The SD Committee approved the DA subject to conditions at a meeting on 12 December 2011. The conditions require the development to be carried out in accordance with plans 1 - 3 prepared by Mr Basha including the site analysis plan and seven TK Worboys plans including the amended drainage/shadow diagram plan dated 5 December 2011.

On 15 December 2011, at an ordinary meeting of the Council, the General Manager advised that a motion presented by a councillor to rescind the Council's resolution granting development consent could not be accepted.

Affidavit evidence

The Applicants read the affidavits of Mr Gilbank, the First Applicant, dated 11 April 2012, and 1 June 2012; and Mr Bridgman, traffic planning and road safety consultant, dated 4 June 2012 and 6 September 2012. The Applicants tendered AS/NZ 2890.1 Australian/New Zealand Standard Parking Facilities Part 1: Off-street car parking (the Australian Standard) (exhibit E).

A bundle of photographs Mr Gilbank took between November 2011 and April 2012 of Mena and the eastern side passage of the First and Second Respondents' property was tendered. Mr Gilbank's affidavit of 1 June 2012 annexes further photographs including photographs from Mena across the front yard of the property, taken in June 2012.

In his first affidavit Mr Bridgman opines that the minimum driveway width required for access to the rear of the First and Second Respondents' property is 3.0m, based on the Australian Standard relevant for a category 1 (low volume) access driveway. Mr Bridgman's second affidavit exhibits a bundle of documents being the Council file. He found no reference in the council file to the Australian Standard in assessing the DA. No advice was sought by the Council from an engineer about whether motor vehicle access was available to the rear of the property. In cross-examination, Mr Bridgman corrected his affidavit evidence stating that a driveway width of 3.6m is required for the left hand turn at the front eastern corner of the house, according to the Australian Standard. He was also cross-examined on the basis that he make assumptions about constraints such as boundary landscaping which were not considered in his report. Such constraints reduced the available driveway space.

The First and Second Respondents read the affidavits of Mr Bloore, First Respondent, dated 5 July 2012 (in part) and 1 October 2012; Mrs Bloore, Second Respondent, dated 5 July 2012; and Mr Basha dated 5 July 2012 (in part).

Mr Bloore attached several photographs of the front and eastern side passage of the property taken on 9 October 2012. He attached notes of what he said at the SD Committee meeting on 12 December 2011.

Mrs Bloore and her husband bought the property adjacent to Mena in January 2011 and intend to reside there when the renovations and extensions are completed. The First and Second Respondents engaged Mr Basha, planning consultant, to prepare the application for the renovations and extensions to the property. The First and Second Respondents attended a site meeting on the property conducted by the Council in December 2011 when councillors inspected the site of the proposed garage. There has not been regular access to the rear of the property by vehicles since the First and Second Respondents have owned the property. Ms Bloore records six occasions when vehicles accessed the property via the eastern side passage including construction vehicles since the development consent was granted.

Mr Basha attended a site meeting on 12 October 2011 with Mr Gowing, the Council's town planner, during which they walked down the eastern side passage of the First and Second Respondents' property. He discussed with Mr Gowing the difficulties of using the eastern side passage as the daily access for a garage to the rear of the property. Mr Basha attended a second site meeting on 6 December 2011 when some councillors visited on a site inspection. Mr Basha explained to the attendees that the garage was proposed in the front yard because of the difficulties with access along the eastern side passage while pointing to it. During cross-examination Mr Basha said that the site analysis plan he prepared to support the DA was not intended to be a survey plan, as is noted on it. He agreed it depicted the eastern side passage as narrower than it was.

Grounds of judicial review

1. Failure to consider mandatory relevant matters

Section 79C(1)(c) of the EPA Act provides:

(1) Matters for consideration-general

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:

...

(c) the suitability of the site for the development

The Applicants allege that there was a failure to consider the suitability of the site as required by s 79C(1)(c) in several respects. There was also a duty to inquire into mandatory relevant matters. The relevant paragraphs of the Further Amended Points of Claim (FAPOC) filed in Court on 7 November 2012 are set out below.

failure to consider dimensions of eastern driveway

31. Section 79C(1)(c) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) required the Third Respondent to consider the suitability of the site for the Development.

32. The Third Respondent failed in this duty to consider this mandatory matter by failing to consider the actual physical dimensions, extent and features of the existing eastern side driveway and the consequent suitability of the rear yard for the proposed development's garage, contrary to s79C(1)(c).

32A. The factual matters pleaded at paragraph 32 above were in the actual knowledge of the Third Respondent as at the date of its decision to grant of the Development Consent.

duty to inquire not exercised

32B. In the alternative to paragraph 32A above, the Third Respondent was under a duty to inquire into the factual matters pleaded at paragraph 32 above which arose by implication from s79C(1)(c), and breached this duty by not so inquiring.

33. In particular, the Third Respondent failed to consider, and failed to inquire into, the actual dimensions of the eastern driveway or the size of the rear yard.

34. The Third Respondent failed to consider, and failed to inquire into, the fact that vehicles including light trucks and domestic vehicles regularly traversed the eastern driveway.

failure to consider large rear yard

35. The Third Respondent failed to consider that aspect of the site being the very large rear yard of the Property, including the observations made by Mr Aitken in his memorandum dated 6 August 2011 that:

(a) there were extensive gardens at the front and rear of the property; and

(b) the design brief for the First and Second Respondents appeared to have overlooked the relatively large lot at the rear which gave the site the capacity to extend (the existing dwelling house) without compromising the existing more subtle carparking arrangements (ie more subtle than those proposed in the development application).

failure to inspect/inquire

36. The Third Respondent failed to inspect the eastern side passage between the existing dwelling house and the boundary at "Mena", and in any event failed to inquire into, observe and thereby consider:

(a) that the width and configuration of the eastern side driveway was adequate to allow domestic motor vehicles to pass along that driveway to the site of a garage in the rear of the Property;

(b) that there is in fact no large tree located at the south-eastern corner of the existing dwelling house (notwithstanding the factually incorrect depiction of such a tree on the plan entitled "Existing Boundaries & Site Analysis" (apparently prepared by Mr Basha) and forming part of the DA);

(c) that there is no large tree located within the boundaries of the property, towards the end of the eastern side passageway and immediately adjacent to the western boundary of Mena, that would disrupt or constrain the movement of motor vehicles along the eastern side passageway to the rear yard of the Property.

failure to consider cl 77 LEP

37. The Third Respondent failed to consider the suitability of the site in that it failed to consider the impact the New Double Garage and large concrete apron would have on the view lines across, and the appearance of the front yard of the Property within which those structures are to be built, from Mena.

37A. Failure to consider the matter pleaded in paragraph 37 above as required by clause 77 of the LEP 2000.

Clauses 76 and 77 of the LEP state:

76 Consideration of development affecting heritage items or heritage conservation areas

(1) When determining a development application required by this Part, the consent authority shall take into account the extent to which the development would have an impact on the heritage significance of heritage items or heritage conservation areas.

...

77 Development in the vicinity of heritage items

The consent authority may grant consent to development affecting land in the vicinity of a heritage item, heritage conservation area, archaeological site or potential archaeological site only after considering an assessment of the impact that the development would have on the heritage significance, curtilage and setting of the item or heritage conservation area as well as the impact of the development on any significant views to or from the heritage item or conservation area.

Applicants' submissions

The Applicants submitted that Mr Aitken's pre-DA report advised that the new double garage should not be approved and that four options attached to the report should be explored including whether driveway access was possible along the eastern boundary to a new garage in the rear yard. Despite this advice from the Council's heritage expert, the first Gowing report (18 November 2011) concluded that the development would not adversely affect the HCA or Mena and that siting a garage behind the existing house could be discounted due to site constraints. The report incorrectly stated that insufficient width exists to the east of the property to properly facilitate access to the rear of the site. The report dismissed the requirement in Pt 7.7 of the DCP that garages be set back behind the building façade or project up to 3m in front of the main façade and acknowledged non-compliance with this standard. No Council officer or councillor visited Mena while assessing the DA. No councillors inspected the eastern side passage during the site inspection on 6 December 2011.

On an objective appraisal of the materials before the Council, it failed to consider the suitability of the site in an important respect thereby failing to take into account a mandatory relevant consideration: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at 994 per Basten JA citing Parramatta Council v Hale (1982) 47 LGRA 319 at 335 per Street CJ. The actual dimensions and ability for vehicular access down the eastern side passage were central and significant matters to the Council's determination. The failure to consider these materially affected the decision to grant the consent: Minister for Aboriginal Affairs v Peko-WallsendLtd [1986] HCA 40; (1986) 162 CLR 24 at 40 per Mason J. It is apparent from the Gowing reports that the acceptability of the proposed front garage depended solely on identifying the eastern side passage as a site constraint. This was a mandatory relevant consideration which can be inferred from s 79C(1)(c). Relevant matters must be more than adverted to, there must be an understanding of the significance to the decision: Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at [80] per Giles JA (Priestley JA agreeing). The actual dimensions of the eastern side passage are not recorded in either of the Gowing reports. The councillors' site inspection of 6 December 2011 failed to inspect the eastern side passage (although it is acknowledged that Mr Gowing inspected it beforehand).

The plans lodged by the First and Second Respondents with the DA showed a large tree at the end of the eastern side passage which no longer existed at the date of consent and so could not impede access down the eastern side passage. There was no evidence before the Council at the date of its decision to grant consent that the tree was not there. The available inference is that the Council proceeded on that mistaken basis. A survey plan prepared by Craig Jaques & Associates dated 15 June 2010 was before the Council but it was not discussed in either Gowing report. The second Gowing report concludes that "... the ability to site the garage in the rear yard is constrained by access difficulties caused by the irregular eastern boundary of the site and its proximity to the north eastern corner of the dwelling." The evidence of Mr Bridgman is that the applicable Australian Standard regarding driveway width and ability to traverse the eastern side passage are not referred to in the material before the Council.

There was a duty to inquire into these matters and consequently it is appropriate to consider evidence not in existence at the time the DA was approved, namely the expert evidence of Mr Bridgman, photographs taken by the Applicants from Mena across the front yard of the property taken before and after the decision date on 12 December 2011, and a paragraph from Mrs Bloore's affidavit identifying the vehicles that have used the eastern side passage.

There was a failure to consider the impacts of the proposed development on the significant views from Mena, a mandatory relevant consideration under cl 77 of the LEP.

Respondents' submissions

The Respondents (the First and Second Respondents largely adopted the submissions of the Council) submitted that the Council has an obligation under s 79C to assess the development for which consent is sought and not alternative options for possible development of a site. The DA did not seek consent for a driveway on the eastern side of the property and there was no obligation on the Council to assess site suitability for a development that was not proposed under s 79C(1)(c).

The Applicants bear the onus of establishing that certain matters were not taken into account or that such an inference should be drawn. Such an inference should only be drawn after anxious consideration: Hale at 345 per Moffit P. A council has active or constructive knowledge of the contents of a council file: Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74; and Gee v Council of the City of Sydney [2004] NSWLEC 581. Mandatory relevant considerations are determined by the statute, here the EPA Act, which must explicitly or by implication oblige the decision-maker to inquire and consider the subject matter at the level of particularity involved in the Applicants' challenge. It is not permissible to a make an exhaustive list of matters which a decision-maker could regard as relevant and then attack the decision because one of these was not considered: Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [58] per Preston J. This is what the Applicants challenge amounts to in this ground.

The circumstances which may give rise to such a duty are limited, see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 - 170. The duty does not fit within the ground of judicial review based on a failure to take into account a relevant consideration. It may be relevant in a claim based on unreasonableness in the Associated Provincial Picture Houses Ltd vWednesburyCorporation [1948] 1 KB 223; [1947] 2 All ER 680 sense.

The Applicants' case impermissibly requires that the Council consider alternatives to the proposal before it. The DA did not include any driveway on the eastern side of the property. The Applicants require the Council to have considered the ability to use the eastern side passage for the purposes of a driveway and the backyard for a garage. No such duty arises under the EPA Act. Section 79C(1) requires account to be taken of listed matters that "are of relevance to the development the subject of the development application". No duty to consider alternatives can be implied by reference to the scope, objects and purpose of the EPA Act. A council has no obligation to consider what might be done on land.

Alternatively, if such a duty exists the Council did take the potential alternatives into consideration. This ground is otherwise an impermissible attack on the merits of the Council's decision.

The Applicants submitted there is a failure to consider the impacts of the proposed development on the view from Mena as required by cl 77 of the LEP but there is no evidence to support a finding that there were likely to be impacts on a significant view from Mena. In any event, this was considered by the Council.

The Bridgman evidence is irrelevant both because it was not before the Council at the time the DA was approved and because it does not address the proposed development. No other evidence not before the Council when it approved the DA should be considered as it is irrelevant.

No failure to consider mandatory relevant consideration

Before addressing the specifics of the Applicants' grounds of review some general observations are important. These are judicial review proceedings in which the merits of the Council's decision cannot be considered by the Court per Peko-Wallsend at 42. The Applicants bear the onus of proof on the balance of probabilities of establishing the grounds of judicial review relied on. In relation to the first ground of failure to take into account mandatory relevant considerations, the Applicants have the onus of establishing that the matters they raise are matters the Council was required to take into account per Peko-Wallsend at [39]. The Applicants rely on s 79C(1)(c) which refers to the suitability of the site, a broad description which is not further particularised in the Act. The matters the Applicants argued are mandatory relevant considerations must be so determined as a matter of statutory construction in light of the objects and purpose of the EPA Act, and s 79C in particular.

The Applicants' counsel relied on well-established authorities such as Hale, Kindimindi, Peko-Wallsend and Weal where the requirement to take into account mandatory relevant considerations in a statutory decision-making context is identified. The application of these authorities can be accepted but it is necessary for the Applicants to establish that mandatory relevant considerations existed which were not taken into account by the Council when it approved the First and Second Respondents' DA.

The Council is not required under the EPA Act to provide reasons for its determination of a DA. The onus of proving what the Council can be inferred to have considered, or not as the case may be, falls on the Applicants in the absence of any reasons. The Applicants ask the Court to draw a number of inferences based on the material on the Council's file concerning the Council's decision-making process. The drawing of inferences on the balance of probabilities should not be drawn on the basis of mere speculation: Gurnettv Macquarie Stevedoring Co Pty Ltd (1955) 55 SR NSW 243 at 246 - 248 per Street CJ; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 per Dixon CJ; and Vilro Pty Ltd (In Voluntary Liquidation) v Roads and Traffic Authority NSW [2010] NSWLEC 234; (2010) 179 LGERA 47 at [105] - [107].

The Applicants allege that the Council failed to consider the dimensions and trafficability of the eastern side passage which were submitted to be mandatory relevant considerations in the context of s 79C(1)(c). I largely agree with the Respondents' submissions that the Council was required to assess the development for which consent was sought (the subject of the DA) as reflected in the chapeau of s 79C. Section 79C(1)(c) requires the consideration of site suitability for the development proposed. The DA did not seek consent to use the eastern side passage as a driveway or for any other purpose. As the Respondents submitted, there is no duty imposed on a council to consider alternative proposals, in other words, what might be done on the land. There is no challenge in this ground to the Council's approval of the new garage structure or concrete apron approved, the development the subject of the DA. That conclusion means that much of this ground falls away at the outset.

The Applicants read Mr Bridgman's affidavit stating that the minimum width required by the Australian Standard of 3m was met in the eastern side passage. Assuming that the Australian Standard had to be applied by the Council, it was to the proposal the subject of the DA (the new front yard garage) not an alternative proposal (the use of the eastern side passage as a driveway). Mr Bridgman's evidence does not address a mandatory matter the Council had to consider. Further, as highlighted in cross-examination, Mr Bridgman was not assessing a particular proposal for development so that he did not consider possible constraints such as boundary landscaping, for example, which would reduce the space available for a driveway. No criticism is intended by these observations as he was simply responding to the brief provided to him, but does confirm the irrelevance of his evidence. In cross-examination Mr Bridgman agreed that the left hand turn when proceeding from the front of the property to enter that passage required a width of 3.6m in order to comply with the Australian Standard. That width was difficult to provide in that location. Another difficulty with Mr Bridgman's evidence was that it was not before the Council at the time of the determination of the DA. This issue is discussed in more detail below. For these various reasons Mr Bridgman's evidence does not assist the Applicants' case.

A further complete answer to the Applicants' case is that the councillors are considered to have actual or constructive knowledge of the material on the Council's file, see Schroders at [67] and Gee at [18]. The Craig Jacques survey which showed the correct dimensions of the boundaries and house on the property sent by Mr Gilbank was on the Council file, a site inspection was conducted by a number of councillors on 6 December 2011 and Mr Gowing, the relevant council planning officer, visited the eastern side passage on 6 December 2011. The SEE specifically addresses why the eastern side passage and rear yard are not preferred for the proposed development. Mr Gilbank's detailed letters of objection dated 8 October 2011 and 28 November 2011 identify his view that the eastern side passage and rear yard can and should be utilised are also on the Council's file. The Applicants bear the onus of establishing an inference that such matters were not considered by the Council.

The Applicants' counsel submitted there was a hierarchy of documents on the Council file and if a matter was not in the first Gowing report then it was not in the mind of the Council when the DA was determined even if referred to in the SEE so that the inference of constructive knowledge by the Council should not arise in these circumstances. I do not agree as that approach is not consistent with long established authority such as Schroders. The inference that is more readily drawn from this material is that, as part of a usual site assessment process, matters concerning the eastern side passage were considered by the Council.

Further, par 32A of the FAPOC states that the factual matters pleaded in par 32 (the actual physical dimensions, extent and features of the eastern side passage) were in the actual knowledge of the Council. That pleading means the Applicants cannot succeed on this ground because the most likely inference to arise is that the Council did consider these matters rather than the opposite inference urged by the Applicants.

Similar observations apply to support rejection of the Applicants' case concerning the failure to consider the large rear yard (the FAPOC at par 35(a), (b)). Firstly, use of the rear yard for a garage was not proposed by the Applicants and was not therefore the proposal the Council was required to assess site suitability for under s 79C(1)(c). That the First and Second Respondents did not choose to utilise the rear yard for a garage was not a mandatory relevant matter the Council had to consider. Secondly, the plans of the whole property submitted by the First and Second Respondents' consultant Mr Basha and the survey plan clearly depict the large rear yard. These were part of the Council file and the more likely inference is that the Council was aware of the size of the rear yard given that is obvious from the plans and the survey. Thirdly, the SEE and Mr Gowing's reports do refer to the reasons why the First and Second Respondents did not wish to use the rear yard for a garage. It can therefore be inferred that this issue was considered as part of the Council's deliberations. The FAPOC at par 35(a) and (b) state that legal error arises because the observations of Mr Aitken were not considered. The Council is not required to adopt the advice of its consultants provided before DA lodgement. That advice was on the Council file and was the subject of the second Gowing report which considered the Respondents' response to Mr Aitken's options, and the Council is inferred to be aware of it and to have considered it.

It is necessary to look at the whole of the Council's assessment process which is summarised above at par 7 - 25. Contrary to the Applicants' submissions the acceptability of the front yard garage did not depend solely on identifying the eastern side passage as a site constraint. That consideration included why the use of the rear yard was not considered ideal by the Applicants. The Applicants' submissions included a detailed critique of the councillors' assessment process including that at the site visit on 6 December 2011 none of the councillors walked down the eastern side passage and that only three of the five councillors who voted in favour of the DA went on the inspection.

The criticism that the Council's consideration was erroneous because it was based on an incorrect and critical assumption that the eastern side passage was constrained was an overly legalistic analysis of the town planning reports and other documents in the Council file. A commonsense view of the plans suggests that driving a car down the eastern side of the property was constrained given the property boundaries and the house location. While much effort went into establishing that a car could drive down that passage, and it apparently can, that does not mean that the planner's conclusion that it was constrained gives rise to a legal error vitiating the Council's consideration. That submission was directed at a level of detail which essentially requires me to impermissibly consider the merits of that assessment by the Council's planner Mr Gowing. The observations in Walsh by Preston J at [58] citing Sean Investments Pty Ltd v MacKeller (1981) 38 ALR 363 at 375 that judicial review proceedings do not permit an applicant to list those matters he or she considers to be relevant and challenge a decision on the basis these are mandatory, apply to these arguments.

The Applicants' counsel sought to draw support for his submissions from the fact that as part of the approval of the DA, the Council approved Mr Basha's site analysis plan. Mr Basha agreed in oral evidence he inaccurately shows the eastern side passage as too narrow. His plan identifies on its face that it is not a survey. This was contrasted with a plan prepared by TK Worboys which did accurately show the dimensions submitted as part of the DA and which was not one of the approved plans. The Applicants' counsel accepted that the approved plans did include a TK Worboys plan which had accurate dimensions. No inference arises from the inclusion of Mr Basha's site analysis plan as one of the approved plans that the Council failed to consider a mandatory relevant matter or, more accurately, were misled about a material matter.

The FAPOC at par 36(b), (c) identify a failure to inquire, observe and therefore consider that no large tree is located within the boundaries of the property that would disrupt or constrain the movement of motor vehicles using the eastern side passage. The tree wrongly located on the south western rear corner of the house in Mr Basha's site analysis plan lodged with the DA is not referred to at all in the Council's decision-making as disclosed on the Council file. Leaving aside whether there was an obligation to inquire and observe, the Applicants bear the onus of establishing the inference it urges on the Court, namely that the absence of a tree was a mandatory relevant matter erroneously omitted by the Council in its consideration of the DA. To describe this ground in terms of the failure to consider a relevant consideration meaning the absence of a tree in a particular location is perhaps curious. In any event, the Applicants have not established this was a mandatory relevant consideration given that use of the eastern side passage and use of the rear yard for a garage was not the proposed development requiring assessment. In these circumstances, the incorrect presence of a large tree on the south-west corner in Mr Basha's site analysis plan cannot be a material element in the Council's decision-making. This particular is not established by the Applicants.

In relation to the failure to take into account the significant views from Mena on the basis this was a mandatory relevant consideration required by cl 77 of the LEP (the FAPOC at par 37, 37A), as the Respondents submitted in the course of consideration of the Council file documents, it is not necessary that a specific clause in the LEP be referred to provided that there is demonstrated consideration of the substantive issue in that clause. There was explicit reference in the SEE (see par 12 above) and in the first Gowing report to the impact of the proposed development on views from Mena. Mr Gowing considered there was not a significant view from Mena across the property because it is private property. This material gives rise to an inference that the Council did consider such material. That Mr Gowing considered the view across the property was not significant is a question of merit alone. There is an explicit reference to cl 76 of the LEP in the first Gowing report. The subject matter of cl 77 overlaps with cl 76 as both refer to the impact on heritage matters. This particular is not established by the Applicants.

No duty to inquire established

A duty to inquire is also raised by the Applicants in several paragraphs of the FAPOC (at par 32B, 33, 34, 36(a) (eastern side passage); par 36(b), (c) (tree on south western corner of house)). Whether such a duty to inquire arises in the context of a ground of judicial review based on a failure to consider a mandatory relevant matter is disputed by the Respondents. They cite Prasad where Wilcox J identified that such a duty could potentially arise in limited circumstances in relation to a different judicial review ground based on Wednesbury unreasonableness. In Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action, 4th ed (2009) Thomson Reuters, whether a duty to make inquiries is imposed on administrative decision-makers is considered at [5.80] - [5.115]. It is observed that even when acknowledged to exist, the terms are heavily qualified and it is a component of the duty to take account of all relevant matters which the decision-maker is bound to consider. The discussion of numerous High Court and Federal Court cases suggests the duty has been considered as potentially relevant in limited circumstances in relation to judicial review grounds other than Wednesbury unreasonableness.

A related question in this case to whether there was a duty to inquire is whether material not before the decision-maker at the time of making the decision under challenge can be considered in this ground of judicial review. In judicial review proceedings only the material before the decision-maker is generally considered to be relevant and exceptions allowing consideration of other extraneous material are limited, as noted in this Court recently in Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division) [2011] NSWLEC 191 at [69] - [76] and INL Group Ltd v Director-General of the New South Wales Department of Planning [2011] NSWLEC 256 at [31] - [32]. If a duty to inquire is found to arise in relation to this ground the possibility arises that new material not before the decision-maker can be considered in these proceedings. There was discussion during the hearing of whether evidence, both expert and lay, not in existence at the time of the Council's decision to approve the DA could be relied on in the Applicants' case. The Respondents submitted it could not in relation to this ground as no duty to inquire can arise. The Applicants' counsel submitted that there was authority to support the adducing of expert evidence in certain circumstances. By analogy the reasoning applied to expert evidence, which can be adduced to demonstrate what would have been uncovered had enquiries been made, also applies to lay evidence.

The new evidence not before the Council when it granted development consent the Applicants sought to rely on was narrowed down in the course of the hearing to the affidavits of Mr Bridgman, expert traffic consultant; several photographs taken in June 2012 by one of the Applicants from Mena across the front yard of the property, and a paragraph in Mrs Bloore's affidavit where she refers to six vehicles which have passed down the eastern side passage of her property since development consent was granted.

The Applicants' counsel relied on King v Great Lakes Shire Council (1986) 58 LGRA 366 and Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 as supportive of its application as both decisions identify circumstances where expert evidence not before a council at the time of the decision being challenged may be appropriate in judicial review proceedings. The Applicants also sought to rely on a number of interlocutory decisions in this Court where judges have considered whether expert evidence should be allowed in judicial review proceedings in applications under r 31.19(3) of the Uniform Civil Procedure Rules 2005 (the UCPR), for example DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156, Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113, Rossi v Living Choice Australia Ltd (t/as Living Choice) [2012] NSWLEC 112, Gilbank v Bloore [2012] NSWLEC 172. None of those judgments deal finally with the question of whether expert evidence not before the decision-maker is permissible in proceedings of this kind as it was unnecessary to do so in order to apply r 31.19(3). In Dexus and Rossi whether expert evidence not before the decision-maker was admissible in judicial review proceedings was considered but the duty to inquire was not part of the applicants' cases in those matters. In Friends of King Edward Park Biscoe J considered, without deciding the matter finally, the existence of a duty to make inquiries in the context of a breach of s 79C, and manifest unreasonableness allegations in considering whether to allow the applicant to adduce expert evidence under r 31.19(3) of the UCPR. His Honour refers to Prasad and cases which have accepted that decision such as the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273. Biscoe J expressly states at [90] that the Court is yet to determine if there is a duty to inquire in the context of the issues in that case. That case has yet to be finally determined so far as I am aware.

Consideration in judicial review proceedings of lay evidence not before the decision-maker when the decision was made was considered in Ex parte Helena Valley/Boya Association (Inc) (1989) 2 WAR 422 by Ipp J then of the Supreme Court of Western Australia. The part of the judgment relied on by the Applicants is obiter dictum and not the subject of comment by other judges. No judicial review case in this Court where lay evidence which did not exist at the time of the council's decision was admitted was referred to.

All of these observations will remain just that because I do not need to resolve whether there was a duty to inquire as the Applicants allege in this ground (as opposed to the Wednesbury unreasonableness ground to be considered next) in light of my finding above that there was no failure to consider a mandatory relevant consideration in relation to the eastern side passage, the large rear yard, or the absence of a tree on the south-western corner of the house. No duty to inquire into these matters can therefore arise. The particulars identified in the FAPOC at par 32B, 33, 34, 36(a), (b) and (c) are not established.

2. Unreasonableness/illogicality/irrationality

The Applicants also submitted that the decision of the Council to grant development consent was so unreasonable that no reasonable consent authority would have granted the development consent, relying on Wednesbury. The FAPOC identified the following reasons, to be considered both separately and cumulatively:

(a) the failure of the Third Respondent to properly weigh and consider the actual dimensions of the eastern driveway or the size of the rear yard, before concluding that it was appropriate for the New Double Garage to replace the garage within the existing dwelling house by reason of accessibility issues associated with the eastern driveway and rear yard;

(b) the failure of the Third Respondent to consider the applicable AS/NZ Standard 2890.1 for driveway access, before concluding that it was appropriate for the New Double Garage to replace the garage within the existing dwelling house by reason of accessibility issues associated with the eastern driveway and rear yard;

(c) the failure of the Third Respondent to consider the importance of the deep setback of the front garden on the Property to the heritage significance of Mena;

(d) the failure of the Third Respondent to consider the impact of the New Double garage and associated large concrete turning apron on the significant views from Mena (as required by clause 77 of the LEP), and hence on the latter's heritage significance;

(e) the failure of the Third Respondent to otherwise consider the impact of the proposed concrete apron and driveway on Mena, including the failure to give any consideration whatsoever of the materials and finishes that would be used in this apron/driveway area;

(f) [not pressed];

(g) the Third Respondent's rejection of the Heritage Advice that the garage be relocated to the rear yard;

(h) the Third Respondent's departure from the Garage Setback Standard; [DCP PO 7.7-4(h)]

(i) the Third Respondent's discounting of the option of relocating the garage to the rear yard based on non-existent, but assumed or imagined, site constraints;

(j) [not pressed]; and/or

(k) the Third Respondent's acceptance, without due and proper investigation, of the factually incorrect assertions made in the DA concerning the inadequacy or insufficiency of the eastern driveway for rear access, and the asserted consequence that the location of the new garage in the front of the site was necessary;

Particulars

The Third Respondent had at the date of its decision to grant the Development Consent actual knowledge of the adequacy and sufficiency of the eastern driveway as access for a garage in the rear yard, as it had in its possession a survey report of the Property prepared by Craig Jaques & Assoc. (Orange) Pty Limited dated 15 June 2010, lodged with the Third Respondent with the earlier application for building certificate 33/2010, which had disclosed that the minimum width of the eastern side passageway at its eastern entrance was 3.705m and that the minimum width of that passageway at its western end was around 3.65m. Further, a straightforward examination of the site dimensions and/or a site inspection would have demonstrated to the Third Respondent that adequate vehicular access down the eastern driveway existed contrary to the factually incorrect assertions of the DA in the four bullet point paragraphs found on pages 28 and 29.

(l) the Third Respondent was subject to a duty to inquire into the adequacy or sufficiency of the eastern driveway for access to the rear yard, before concluding that location of the new garage in the front yard was necessary due to inadequate or insufficient side access, and breached this duty by not making those inquiries.

Particulars

At the date of its decision to grant the Development Consent it was obvious that an inspection and assessment (including in accordance with AS/NZ Standard 2890.1), of the eastern driveway was centrally relevant to the decision to be made, which decision was to be based on the asserted necessity to locate the new garage in the front yard due to the assumed inadequacy or insufficiency of the eastern driveway. Council decided to grant the Development Consent without so inspecting and assessing that eastern driveway, and without adverting to this applicable Australian standard.

In the alternative, in the circumstances pleaded above at paragraph 38, the decision of the Third Respondent to grant the Development Consent was vitiated by reason of it being illogical, irrational and not based on findings or inferences of fact supported by logical grounds.

The Applicants submitted that evidence that the eastern side passage can be negotiated by vehicles and would be a suitable driveway allowing access to the rear yard and to any garage located there, are matters of fact which are overwhelming. It has been used for vehicular access for construction vehicles including trucks and laid with blue metal for that purpose. I note that use is after the approval of the DA by the Council and cannot be matters the Council could consider.

There was a duty to inquire on the Council's part as identified in Prasad at 169 - 170 and the failure to do so was manifestly unreasonable. The Council failed to make readily available inquiries including at the 6 December 2011 site inspection by the counsellors when the eastern side passage could have been inspected but was not. No inquiry was made by the Council about the Australian Standard. The size, width and actual physical dimensions of the eastern side passage were readily available yet no inquiry was made so that the Council had this material before it.

Alternatively, the Council's decision was illogical and irrational within the meaning in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59.

The eastern side passage is adequate as a matter of common sense and under the Australian Standard. It is self-evidently not too narrow for any standard domestic vehicle, being over 3.6m in width at any point. Yet the Council ignored these matters. No competing expert evidence opposing Mr Bridgman's views has been adduced, a further indication of unreasonableness. The Council's decision borders on absurdity in proceeding on the basis that no garage could be sited at the rear of the premises as there was no eastern driveway access.

Respondents' submissions

A duty to inquire may arise as part of the consideration of a ground of judicial review based on unreasonableness. According to Prasad there are three threshold matters that must be satisfied in relation to any material that should have been taken into account. The material must be, firstly, obvious; secondly, readily available for example an email or a telephone call, not briefing an expert; and thirdly, centrally relevant to the decision to be made: Prasad at [170]. Mr Bridgman's evidence does not satisfy any of these criteria. Nor does the Applicants' challenge relate to the garage approved.

The Wednesbury test sets a high threshold and is based on the materials that were before a council at the time the decision was made: Haughton v Minister for Planning [2011] NSWLEC 217; (2011) 185 LGERA 373 at [218]. There is no separate ground of judicial review based on a decision being irrational or illogical.

Council's grant of development consent not unreasonable, illogical, or irrational

As identified in numerous cases (for example, Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109 at [113] - [116] per Pain J affirmed on appeal in Marrickville Metro Shopping Centre Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 at [85] - [109] per Tobias JA (Basten JA and Handley AJA concurring with additional reasons and observations)), the threshold an applicant seeking to establish the ground of Wednesbury unreasonableness (no reasonable consent authority would have granted development consent) must meet is high. Wednesbury at 683 held that overwhelming proof of the unreasonableness is required.

The FAPOC at par 38 identify ten matters which suggest the Council's decision was unreasonable. Some particulars repeat those identified in the first ground. Subparagraphs (a) and (i) refer to the Council's alleged failure to consider the eastern side passage and the potential for use of the rear yard for a garage. Subparagraph (b) refers to a failure to consider the Australian Standard as relevant to the decision in this context. I found there was no failure to consider these matters.

The impacts on Mena referred to in subparagraphs (c) and (d) overlap and assert that there was negative impact on the significant views from Mena over the front yard of the property, which failure was in breach of cl 77 of the LEP. I have found in the first ground of review that there was no failure to consider cl 77 of the LEP.

It follows from my findings on the first ground of review that these five matters relied on by the Applicants as separately or cumulatively giving rise to unreasonableness in the Wednesbury sense, can have no role to play in relation to this ground.

Subparagraph (e) refers to the lack of assessment of the impact on Mena of the materials and finishes to be used on the proposed development. This was not referred to in the Applicants' written or oral submissions and did not appear to be pressed at the hearing. I note that the SEE does refer to the types of materials intended to be used in any event (summarised above in par 12) and that this was a matter that can be inferred to have been considered by the Council.

Subparagraph (g), rejection of the heritage consultant's advice to relocate the garage to the rear yard, is a question of merit alone, which I cannot consider in proceedings of this type. The Council is not required legally to accept the advice of its consultants or staff including the advice of its heritage consultant Mr Aitken.

Subparagraph (h) concerns a failure to consider and apply one provision in the DCP. I consider this below and find there was no failure to consider PO 7.7-4(h) in the manner identified in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589. This cannot be a relevant matter in this part of the Applicants' case.

A duty to inquire into the adequacy of the eastern side passage including the Australian Standard is identified in subparagraph (l). Prasad establishes that such a duty can arise in the context of this ground of judicial review in limited circumstances. The limited circumstances are correctly identified in the Respondents' submissions as material which is obvious, readily available and relevant to the decision in question. As submitted by the Respondents, Mr Bridgman's evidence does not satisfy any of these criteria. The absence of competing expert evidence from the Council is not indicative of unreasonable behaviour by the Council, contrary to the Applicants' submission that it was. I observe that competing expert evidence alone is not indicative of unreasonableness by an administrative decision maker.

An assertion in the particulars to subparagraph (l) underpins much of the Applicants' case, namely that central to the Council's determination of the DA should have been assessment of the adequacy of the eastern side passage for vehicular access. Central to the Council's determination is the assessment of the proposed development which included a garage in the front yard of the property. An understanding of the whole property in general assists in that assessment but the continued assertion that the Council's approval was based on an erroneous assumption about the inadequacy of the eastern side passage must be inferred in the absence of reasons.

That in the Applicants' opinion the eastern side passage is adequate for a driveway as a matter of common sense and under the Australian Standard is a submission about the merits of the decision. The Court is not permitted to assume jurisdiction to do that which is to be done by "the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ": Attorney-General v Quin [1990] HCA 21; (1990) 170 CLR 1 at 37 per Brennan J. Matters described as self-evident where subjective opinions can rightly exist rarely are. That the Applicant considers the eastern side passage was adequate is a matter of opinion which the Council was not required to investigate as a matter of law.

There is no basis for finding that the decision to approve the DA was absurd as referred to in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518 (Lord Brightman) cited by Tobias JA at [106] in Marrickville Metro.

The FAPOC also identify a separate ground of review that the determination was illogical, irrational and not based on findings of fact supported by logical grounds. Whether this is a separate ground of judicial review since S20 is not a settled question: see for example Pepper J in INL at [90]. In Marrickville Metro, Tobias JA at [104] considered that the most recent formulation of Wednesbury unreasonableness, based on S20, is whether the decision is "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds". Aronson, Dyer and Groves (2009) state at [4.410] - [4.430] that it is a separate ground following S20 which similarly sets a high standard for a challenge based on that ground to succeed. I consider that for the reasons already given the Council's decision was not illogical, irrational or not based on findings of fact supported by logical grounds, whether as a formulation of Wednesbury unreasonableness per Tobias JA in Marrickville Metro inter alia or as a separate ground of judicial review.

The Applicant is unsuccessful in relation to this ground of review.

3. Failure to properly consider the DCP

The Applicants submitted that the Council failed to correctly consider the DCP in several respects. Relevant extracts of the DCP are set out.

1.3 USING THIS PLAN

...

The Plan encourages submissions that show how the development will "fit in" with its local setting. In the Plan, numerical standards that govern development form are applied sparingly. Council may agree to variations to numerical standards where Council is satisfied that the development meets the relevant planning principles and objectives and is consistent with the character of the locality. Standards under LEP 2000, however, override provisions in this Plan.

Development applications must be able to demonstrate to Council's satisfaction that the development will achieve the planning outcomes identified in this Plan.

7.5 MERIT-BASED APPROACH TO RESIDENTIAL

DEVELOPMENT IN ORANGE

A merit-based (or performance) approach to residential development focuses on achieving planning outcomes rather than prescriptive or numerical (often minimum) standards. In this Plan,

numerical standards are mainly used as a guide. ...

7.7 DESIGN ELEMENTS FOR RESIDENTIAL

DEVELOPMENT STREETSCAPE

...

PO 7.7-3 PLANNING OUTCOMES - HERITAGE

1 Heritage buildings and structures are efficiently re-used.

2 New development complements and enhances the significance of a heritage item or place of heritage significance listed in the Orange Heritage Study.

3 Significant landscape features are retained including original period fences and period gardens.

GUIDELINES

These guidelines indicate ways of achieving the planning outcomes. It is recognised that there may also be other

solutions. All design solutions will be considered on merit. Applications should clearly demonstrate how the planning

outcomes are being met where alternative design solutions are proposed.

a A Statement of Heritage Significance outlines the impact of the proposed development on the heritage item.

b Ancillary buildings such as garages, carports and garden sheds are located to the rear or set back further from the street frontage than the heritage building.

c Building form, massing, roof shapes, pitch, height and setbacks are consistent with nearby buildings of heritage significance (NB buildings of heritage significance include buildings listed as heritage items in schedule 8 of LEP 2000 and/or buildings listed in inventory sheets in the Orange Heritage Study).

d Any significant heritage features - including mature trees, retaining walls, fences or kerbstones - are retained.

e Period fences and gardens are established/reinstated in heritage settings.

NOTE In heritage settings these criteria override other criteria in this Plan.

PO 7.7-4 PLANNING OUTCOMES - SETBACKS [garage setback]

1 Street setbacks contribute to the desired neighbourhood character, assist with integration of new development and make efficient use of the site.

2 Street setbacks create an appropriate scale for the street considering all other streetscape components.

GUIDELINES

These guidelines indicate ways of achieving the planning outcomes. It is recognised that there may also be other

solutions. All design solutions will be considered on merit. Applications should clearly demonstrate how the planning

outcomes are being met where alternative design solutions are proposed.

...

g Garages shall be setback 1.5m behind the building line as established above, or at least 5.5m whichever is the greater distance. This distance applies to entrances off a secondary boundary on corner allotments.

h Garages are set behind the building façade, or project up to 3m (half the normal depth of a garage) in front of the main façade

....

k Within heritage areas, garages shall be located behind the existing building line.

Building appearance

...

Regarding dominance of the street frontage by the garage, given the generous setback of approximately 19m and the fact that the garage door will present to the east, not the street frontage, the garage will not be the dominant element in the streetscape.

The appearance of the proposed works is consistent with the relevant planning outcomes.

Heritage

Heritage issues have been addressed above under "Clause 76 - Consideration of Development Affecting Heritage Items or Heritage conservation Areas". The proposal is considered acceptable on heritage grounds.

The first Gowing report states:

The intent of the outcome [PO 7.7-3] is to minimise the dominance of garages in the streetscape and to maintain residential character of dwelling frontages addressing the street. The subject dwelling is already removed from the streetscape by way of its large setback and it is considered that the garage in its proposed location would not excessively dominate the façade of the dwelling or the streetscape at large. Notwithstanding the non-compliance, the proposed garage is considered acceptable on merit.

● Within heritage areas, garages shall be located behind the existing building line.

As outlined above, the established building line (based on neighbouring properties) is in the order of 7m. The proposed garage, being set back 19.2m, from the street is sited behind this building line and is in technical compliance with the relevant guideline.

The FAPOC at par 40 - 42 states:

The Assessment Report acknowledged the Development's non-compliance with the Garage Setback Standard. [PO 7.7-4(h)]

The Third Respondent in determining to grant the Consent did not take into consideration and give fundamental weight to the DCP (and the Garage Setback Standard), as required by law.

[PO 7.7-4(h)]

The reasoning of the Assessment Report in rejecting the Garage Setback Standard substitutes a test of whether a front garage would "excessively dominate the façade of the dwelling or streetscape at large" and in doing so fails to give proper weight to the Garage Setback Standard and the DCP.

Two criticisms are identified by the Applicants in the FAPOC. Firstly, the first Gowing report did not accord to PO 7.7-4(h) or the DCP as a whole fundamental weight as required in Zhang. Secondly, the wrong test was applied in the first Gowing report to the application of PO 7.7-4(h) as it referred to whether the garage would excessively dominate the façade of the house or streetscape. The intent of, or even a correct statement of, the planning outcome or of the purpose behind guideline (h) as expressed in the outcome is not to minimise the dominance of garages in the streetscape.

An additional matter raised in submissions was a failure to have appropriate regard to the second objective in PO 7.7-3, that new development must complement and enhance the significance of a heritage item or place of heritage significance listed in the LEP. The Applicants submitted that the Council has simply not engaged with the planning outcome or considered it in the way required by cl 1.3 of the DCP. Whether the heritage significance of the heritage item, Mena, has been complemented and enhanced has just not been considered by the Council. This is in breach of the requirements of Zhang. The Council has not considered whether the proposed development complements and enhances the significance of Mena, at all, which is the planning outcome that Council was required to be satisfied was achieved by the development.

Respondents' submissions

This ground based on a failure to give fundamental weight to the DCP descends into the merits. Zhang at [70] - [77] does not say fundamental weight must be given to the DCP but that it must be a fundamental element in a council's determination. Under s 79C genuine consideration by a council of a DCP, where relevant, is required. This occurred in relation to the heritage matters raised by the Applicant, as can be seen in the SEE and the Gowing reports.

The DCP must be correctly understood. It is focussed on quality planning outcomes and encourages submissions that show the development will fit in with its local setting. Section 7.5 is headed "Merit-Based Approach to Residential Development in Orange" at page 7.14 of the DCP and identifies that is the approach in the DCP. The DCP takes a performance-based approach and is not prescriptive. Numerical standards are mainly used as a guide.

Planning outcome 7.7-3 does not apply in this context as it is directed at development of the heritage item, not a next door property. In any event it was taken into account. Planning outcome 7.7-4(h) was considered. Further PO 7.7-4(k) was complied with as the proposed garage is behind the building line.

No failure to have adequate regard to the DCP

The Applicants firstly submitted that the consideration by the Council of the garage setback specified in PO 7.7-4(h) of the DCP was not fundamental in the way required by Zhang. In Zhang Spigelman CJ states at [75] - [77]:

The consent authority has a wide ranging discretion - one of the matters required to be taken into account is 'the public interest' - but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a "fundamental element" in or a "focal point" of the decision making process. ...

In my opinion, the Commissioner did not "take into consideration" the standard contained in cl 4.0 of DCP 23. Rather, he substituted for the statutory requirement a different approach. The Commissioner posed the "issue" for his determination to be: "The appropriateness of the location taking into account the proximity to the adjoining church, local schools and hotel". He resolved this issue on the basis that adverse impact upon land affected by the presence of a brothel had to be demonstrated in the legal proceedings before him. This approach could only be supported if the discretion was entirely at large, i.e. that there were no "standards" of any character which the decision maker had to take into account. By adopting this approach, the Commissioner, in my opinion, proceeded on an impermissible basis.

There was a relevant and applicable "standard" which he was obliged to "take into consideration". It ought to have served as a focal point for, or constituted a fundamental element in, his deliberations. The evidence, or rather the absence thereof, about actual effects, was not entitled to determinative weight, without regard to the presumptive "standard" in this way.

Zhang requires that the DCP be a fundamental focal point in a council's consideration. The Applicants' case that Zhang requires that the DCP be fundamental in the Council's decision-making process, meaning effectively that it must be applied in its terms, is a change in emphasis from that in Zhang as identified in [75] in particular.

As the Council submitted, the garage setback is considered in the first Gowing assessment report at p 9 - 10 which:

determined that the setback from the building line complied with the DCP and was in fact "generous", since the standard required a setback of 8.5m and the garage is in fact set back 19.2m;
determined that due to the setback of the house, the garage met the requirement for set back behind the existing building line, based on neighbouring properties, as required for heritage areas; and
acknowledged that the garage was not set back behind the building façade or up to 3m in front of the main façade, but considered that this was acceptable on merit given the intent of the provision and the circumstances of the case.

Provided that the DCP is a focal point in a council's consideration of a DA, it need not be strictly complied with. The consideration of all relevant elements of PO 7.7-4 being guidelines (g), (h) and (k) in the first Gowing report confirms that the relevant sections of the DCP were a focal point of this consideration, in conformity with Zhang.

Secondly, the Applicants also criticised Mr Gowing for stating that whether the garage would excessively dominate the house façade or streetscape was the wrong test in applying PO 7.7-4. The sole basis for this submission was that these words do not appear in PO 7.7-4. As his consideration would otherwise appear to be highly relevant to the preservation of streetscape, one of the objectives of PO 7.7-4, it is not accurate to describe these words as applying the wrong test.

Thirdly, the Applicants argued that the second objective in PO 7.7-3 (new development complements and enhances the significance of a heritage item) was not applied in the first Gowing report. The Respondents submitted that this planning outcome was not intended to apply to properties neighbouring a heritage item but rather applied to proposed development of a heritage item meaning the proposed development of Mena rather than the First and Second Respondents' house. The DCP is broadly drafted by planners who are likely to be without legal qualifications. It should be read in that light and to ensure it is given practical effect per Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227 at [12]. Given that the first objective of PO 7.7-3 refers to the efficient re-use of heritage buildings and structures, the third objective to the retention of significant landscape features, guideline (a) requires the preparation of a statement of heritage significance and guidelines (b) - (e) refer to site specific matters, suggests these are focussed on the development of a heritage item. Consequently, there is force in the Respondents' submissions that PO 7.7-3 is not directed to development next door to a heritage property.

In any event, and as submitted by the Respondents, there was clearly assessment of the possible impact of the proposed development on the heritage significance of Mena by Mr Gowing in his first and second reports. A statement of heritage significance was prepared and lodged with the DA by Mr Basha. This was considered by Mr Gowing in his first report and he concluded that the First and Second Respondents had demonstrated that the proposal would not adversely impact on the HCA or the significance of nearby heritage items including Mena. Consideration of the DCP does not require a specific statement in a planning report that a particular objective is achieved through specific use of the words "complements and enhances" a heritage item.

The Applicants have not established any of the bases by which the consideration of the DCP was challenged and are unsuccessful on this ground also.

The Applicants are unsuccessful in these judicial review proceedings and the proceedings should be dismissed.

Orders

The Court makes the following orders:

1. The amended summons filed on 10 August 2012 is dismissed.

2. Costs are reserved.

**********

Decision last updated: 21 December 2012

Medium Neutral Citation:	Gilbank v Bloore (No 2) [2012] NSWLEC 273
Hearing dates:	7 - 9 November 2012
Decision date:	20 December 2012
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. The amended summons filed on 10 August 2012 is dismissed. 2. Costs are reserved.
Catchwords:	JUDICIAL REVIEW - failure to consider mandatory relevant consideration - determination of development consent unreasonable, illogical or irrational - failure to accord fundamental weight to development control plan
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 79C Orange Development Control Plan 2004 Pt 7.7 Orange Local Environmental Plan 2000 (repealed) Pt 12 Uniform Civil Procedure Rules 2005 r 31.19(3)
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 DEXUS Funds Management Ltd v Blacktown City Council [2011] NSWLEC 156 Ex parte Helena Valley/Boya Association (Inc) (1989) 2 WAR 422 Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113 Gee v Council of the City of Sydney [2004] NSWLEC 581 Gilbank v Bloore [2012] NSWLEC 172 Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 55 SR NSW 243 Haughton v Minister for Planning [2011] NSWLEC 217; (2011) 185 LGERA 373 INL Group Ltd v Director-General of the New South Wales Department of Planning [2011] NSWLEC 256 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 King v Great Lakes Shire Council (1986) 58 LGRA 366 Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109 Marrickville Metro Shopping Centre Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division) [2011] NSWLEC 191 Parramatta Council v Hale (1982) 47 LGRA 319 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Puhlhofer v Hillingdon London Borough Council [1986] AC 484 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 Rossi v Living Choice Australia Ltd (t/as Living Choice) [2012] NSWLEC 112 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Sean Investments Pty Ltd v MacKeller (1981) 38 ALR 363 Vilro Pty Ltd (In Voluntary Liquidation) v Roads and Traffic Authority NSW [2010] NSWLEC 234; (2010) 179 LGERA 47 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
Texts Cited:	Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action, 4th ed (2009) Thomson Reuters
Category:	Principal judgment
Parties:	Scott Peter Gilbank (First Applicant) Margaret Audley (Second Applicant) Robert Graham Bloore (First Respondent) Pamela Joyce Bloore (Second Respondent) Orange City Council (Third Respondent)
Representation:	Mr C Ireland (Applicants) Ms F Berglund (First and Second Respondents) Mr I Hemmings (Third Respondent) McPhee Kelshaw Solicitors (Applicants) Campbell Paton & Taylor (First and Second Respondents) Marsdens Law Group (Third Respondent)
File Number(s):	40343 of 2012