Graeme Sayer v Hastings Council

[1998] NSWLEC 99

Land and Environment Court

of New South Wales

CITATION:	Graeme Sayer v. Hastings Council [1998] NSWLEC 99
PARTIES:	APPLICANT Graeme Sayer RESPONDENT Hastings Council
FILE NUMBER(S):	10320 of 1997
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Land & Environment Court Act 1979
CASES CITED:	Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156; Russo v Kogarah Council (1995) 86 LGERA 300 ; House v The King (1936) 55 CLR 499; R v Sidlow (1908) 1 Cr App. R.28, at p.29); R v Wolff (1914) 10 Cr. App. R.107; R v Dunbar (1928) 21 Cr.App.R.19, at p.20; Skinner v The King (1913) 16 CLR 336, at p.340); Whittaker v The King (1928) 41 CLR 230 at pp244-250); Lovell v Lovell (1950) 81 CLR 513; House v The King (at pp.518-9)
DATES OF HEARING:	20/05/98
DATE OF JUDGMENT:	06/05/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr J B Maston, Barrister Mr K Byrnes, Falvey Byrnes Associates RESPONDENT Mr S Miles, Solicitor Donovan Oates Hannaford

JUDGMENT:

This is an appeal pursuant to s 56A of the Land & Environment Court Act 1979 against a decision of Assessor Dr J Roseth on 16 January 1998, dismissing an appeal against a refusal by Hastings Council ("the Council") of three development applications involving the proposed erection of dwellings on each of lots 99, 100 and 101 of Deposited Plan 863070, Elfords Road , The Hatch.

The Hatch is an existing small community comprising about 15 houses.

The relevant locality is also referred to as Blackmans Point, and is located within the Council's area and the Parish of Cairncross, approximately 15km north of Port Macquarie.

The area is relevantly zoned for rural use and 40 ha parcels of land. There was only one Class 1 application, 1 hearing and 1 judgment - no distinction was drawn in the proceedings before the Council, or before Dr Roseth, among the three relevant development applications.

Tendered before me as Exhibit D was a copy of the map of Deposited Plan 863070. The three lots fronting Elfords Road have the following areas - lot 99, 2.560ha; lot 100, 1.848ha; and lot 101, 25.94ha.

At their southern boundaries the three lots are bounded by a public reserve, which would appear from the plan to be the riverbank of the Maria River, not far from its junction with the Hastings River.

The Hatch Road runs north-south and joins Elfords Road at the western end of lot 99, which also has a short frontage to The Hatch Road.

2. THIS APPEAL AND EARLIER PROCEEDINGS

The Grounds of Appeal document dated 9 February 1998, and filed 10 February 1998, specified the following three grounds:

"1. The Assessor erred in law in holding that he was not required to determine the Development Application for the erection of a dwelling house on each of the three allotments, the subject of the proceedings, when the Applicant lodged with the Respondent three separate Development Applications and each such Application was required to be determined under Section 90 Environmental Planning and Assessment Act 1979, by the Assessor, on Appeal.

2. The Assessor erred in law in holding that development on flood prone land within the area of the Hastings Local Environmental Plan 1987 was not permissible if the development constituted new development such as the construction of a dwelling house on vacant land, when the Local Environmental Plan did not relevantly distinguish alteration to existing development and `new development' at the time mentioned, and having regard to the definition of `development' in the Environmental Planning and Assessment Act 1979 and of the New South Wales Government Policy for such development as contained in New South Wales Flood Plain Manual (which Manual was tendered at the Hearing, but not referred to by the Assessor in his reasons for Decision).

3. The Assessor erred in law in not considering each of the Development Applications on its separate merits, having regard to the availability of evacuation procedures and plans, and to determine each Development Application accordingly."

To consider this appeal, the issues involved must be placed in the context of earlier proceedings.

Matter No.10414 of 1994 was heard and determined by Assessor R R Hussey in December 1994. That was an appeal lodged by Sayer pursuant to s 97 of the Environmental Planning & Assessment Act 1979 ("EPAA") against the decision of the Council to refuse Sayer's development application for the three lot subdivision.

The application also sought approval of dwellings on each of the three lots, and it was refused on the following grounds:

"1. The land is unsuitable for the erection of dwellings due to the erosive nature of the soils as evidenced under normal tidal movements of waters and wave action due to wind and power boat activities.

2. Flood Flows within the area will accelerate the erosion of the area to a condition whereby permanent access to the subdivision would be threatened.

3. It has not been satisfactorily demonstrated that permanent, failsafe, maintenance free measures are incorporated into the development to ensure the timely, orderly and safe evacuation from that area should a flood occur.

4. It has not been demonstrated that displacement of people from this area would not significantly add to the overall cost and community disruption caused by the flood.

5. The proposal is inconsistent with objective (a) of the 1(a2) zone:

* to prevent inappropriate development in flood liable areas."

The relevant Local Environmental Plan development standard provided for a minimum area of 40ha for the subdivision of land. Assessor Hussey said: "As this application was for the rationalisation of the existing boundaries of the three lots and did not propose the creation of any new lots, Council did not contest the SEPP1 objection and thought it reasonable in the circumstances of this case".

The principal issues before Assessor Hussey related to possible erosion of the land, and an evacuation plan to come into effect during flooding.

The subject land at the time of the hearing of the appeal before Assessor Hussey comprised three lots each having an area of 10.12ha. It was not contested that the land was floodprone and that the three lots had a general slope from north to south, down to the Maria River. Assessor Hussey was acquainted with the flood history of the site. River bank erosion was significant, especially on the southern boundary of the property where the Crown reserve linked the property to the river. He describes the Crown reserve as variable in width, but currently 5 metres wide at its narrowest points.

The proposal before Assessor Hussey included a concept building plan which indicated how and where a dwelling could be erected on each of the new lots, so as to be "relatively flood free". The applicant sought approval for those building platforms.

In a commendably thorough judgment, Assessor Hussey arrived at a decision which explored all relevant issues. With the benefit of a view, he was satisfied that the subdivision component of the development application, namely the resubdivision of three 10 ha lots, should be approved, but not the dwelling component. He observed that the dwelling house component was merely a concept plan, and "it is most likely that the ultimate form of the houses could be quite different from the concept plan".

He continued:

"I consider that detailed consideration should be given to the house design concept so that maximum safety features can be incorporated into each individual house to enable optimum resident safety to be provided. In this case I do not consider it appropriate, on the basis of available information, to grant consent to the building platforms unless there are more detailed building details submitted".

He also considered that the material before him was insufficient to justify approval in the context of "the safety and evacuation plan". In this context he accepted that "The Hatch evacuation plan represents a commendable start but that the good intentions of this plan still depend on the relevant authorities's (sic) approval to ensure it is operational".

Assessor Hussey concluded that adequate consideration by SES and Council Safety officers was required "to properly establish the link with the authorities early warning system and the residents' evacuation procedures. In this regard I accept ... that further community consultation is required ...". The evidence suggested that 6 months would be required to "fine tune" The Hatch plan to integrate with the Hastings Local Flood Plan ("Displan"), and he came to the view that the evacuation plan should be prepared and approved by the "involved authorities" before development consent is issued. He therefore declined to issue a staged consent.

In conclusion, Assessor Hussey said he was:

"satisfied that the subdivision can proceed and this should enable the Applicant to establish his agricultural venture in accordance with the program outlined to the Court. The evidence submitted satisfies me that it is possible to subsequently erect houses on these new lots and this would presumably be as shown on the elevated mounds, but I consider any dwelling application in this High Hazard flood area should be detailed and site specific. Such application should also incorporate full details of access to each dwelling and a satisfactory flood evacuation plan".

The appeal proceedings before me follow the rejection by the Council, and the applicant's unsuccessful appeal to the Court (Assessor Roseth), in respect of an application for development approval to erect three dwellings, one on each of the lots created by the subdivision which implemented Assessor Hussey's decision.

There were three separate development applications, being Nos.112, 113 and 114 of 1997, but they were all considered together. Council originally refused them in February 1997 and they were resubmitted in April 1997.

The applicant asserted, and continues to assert, that he has complied with all the requirements specified by Assessor Hussey as prerequisites for the approval and construction of dwellings.

In particular, a local flood evacuation plan for The Hatch had been prepared. It must be noted that the Council had some reservations about the plan.

Assessor Roseth summarised his findings thus:

"* While the flood evacuation plan was workable to deal with the problem of the existing community, it is not a permanent and fail-safe measure which would justify the extension of an existing settlement located in a high hazard flood area

* The flood characteristics of the site make it an unsuitable location for additional rural residential development".

For those reasons, Assessor Roseth dismissed the appeal.It is not necessary to repeat his judgment in any detail. The proposal involved building a mound on which each dwelling could stand, so that the floor level would be above the 1:100 year flood level.

Assessor Roseth's judgment recites the salient points of all the evidence adduced before him.

He came to the conclusion that the evidence indicated that The Hatch is not a suitable area for development, as it is between 1 and 2 metres below the 1:100 flood level. He regarded the existence of the present residential community at The Hatch as "a result of a mistaken past decision which should not be exacerbated".

At p10 he says:

"In relation to two of the three dwellings, the application is clearly a proposal for rural residential development. As regards the dwelling on the largest parcel, lot 101, this could possibly be a dwelling to support an agricultural use. However, it was not put to me that I should consider approving only one dwelling on this lot, in case I am minded to refuse the application. Consequently I have not given this option any consideration.

The application is for rural residential development in an area zoned for large rural parcels, in a high hazard flood area from which the only way to high ground is by more than 3km of flood liable road. Despite the existence of a workable flood evacuation plan, in my opinion the subject site is unsuitable for the erection of three new dwellings."

Having dismissed the appeal, Assessor Roseth went on to explain the relationship of his judgment to that of Assessor Hussey on 19 December 1994 of which he says:

"it foreshadowed that dwellings would be possible, provided the applicant prepared a flood evacuation plan for the area and submitted more details of the dwellings and the platforms on which they are to be built. It is clear that the applicant has complied with these requirements." (p.11).

He went on to distinguish the cases, as heard respectively by Assessor Hussey and himself, on the basis that they "vary significantly in the nature of the evidence presented to the Court".

The State Planning Coordinator of the State Emergency Services, Mr Opper, gave evidence before Assessor Roseth, but not before Assessor Hussey. Assessor Roseth observes (p.11):

"The gist of his evidence was that even the best of evacuation plans and early warning systems rely on untrained volunteers and are vulnerable to human error. Mr Opper put a general principle to the Court, namely that evacuation plans are needed to deal with settlements which already exist on flood prone land; they should not be a justification for intensifying development on such land.

I have given long and hard consideration to the fact that the applicant has acted on the 1994 judgment and that he is likely to feel unfairly treated by this refusal. However, I have to balance this fact against the principle put to the Court by Mr Opper. In refusing the application the council appears to have adopted this principle. The applicant has failed to persuade me that the council's decision, and thus the principle upon which it is based, should be overturned."

The applicant/appellant persevered with all three grounds of appeal, but, for convenience, grounds 1 and 3 were dealt with, and considered, together as one question.

The Court had the benefit of written submissions from both parties and the arguments may be briefly summarised.

3. GROUNDS OF APPEAL (1) AND (3)

(a) Submissions of the Applicant/Appellant

As there were 3 development applications, each called for separate consideration of the matters set out in s 90 of the EPAA. Following that consideration, each development application should be determined by either granting or refusing consent.

The applicant submits that the Court "expressly abstained" from the necessary separate determination of the 3 individual development applications with the result that the separate development applications were never determined on their individual merits.

The applicant submits that in approaching the matter in this way, the Assessor committed an error of law.

In his judgment the Assessor referred to the possibility of distinguishing among the separate dwelling house proposals by treating two as rural residential and one as ancillary to an agricultural use.

Mr Maston drew attention to Assessor Roseth's use of the words "the application" in the comment I quoted above from p 10 of his judgment.

He relied on Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 ("Yates") in which Handley JA (with whom Kirby P generally agreed) said (at 186):

"The duty of a judicial officer to hear and determine a claim made in judicial proceedings conducted before that officer is also an incident of the judicial process. Since breaches of the duty to give proper reasons and to observe procedural fairness involve errors of law, there seems every reason to hold that a breach of the duty to hear and determine a claim made in judicial proceedings also gives rise to such an error.

In my opinion the trial judge erred in law in holding that no claim for abortive expenditure had been made by the appellant, and this claim must be remitted to be determined according to law".

In Russo v Kogarah Council (1995) 86 LGERA 300 ("Russo"), Bignold J held that by failing to adjudicate upon the applicant's existing use claim the Assessors had fallen into legal error and that that claim must be remitted to them for determination on the merits. At 306, Bignold J referred to Yates as "the relevant principle".

In Russo the applicant had clearly advanced before the Assessors alternative claims or bases for the grant of the desired development consent, and the Assessors in their decision adjudicated on only one of those alternative bases and completely ignored the other.

Bignold J held that the applicant was entitled to an adjudication on his alternative claim.

(b) The Council's Submissions

The Council submits that over a two day hearing, extensive oral and written evidence was placed before the Assessor and the issue of flooding and the applicant's proposed evacuation plan occupied more of the Court's time at the hearing than any other issue.

The applicant chose to make only one application to the Court, but the transcript makes clear that the Assessor had clearly in his mind that there were, before him, three separate development applications to be determined individually, and that it was open to him to approve one or two of the applications, and not the third. The Court's attention has been drawn to p35 of the transcript of 10 December 1997 where the Assessor directed some relevant questions to the witness Weavers (the Council engineer) on precisely this question of separating the three applications.

The applicant suggests that what the Assessor meant in the judgment when he referred to "the application" (at p10 of the Assessor's judgment) was simply that the three applications were the subject of the same appeal, because the applicant chose not to distinguish one from the others on the basis of his capacity to support agricultural uses on the largest lot.

The Council suggests that to construe tightly the word "application", amounts to taking a "fine tooth comb" to it. In fact, there was only one application before the Assessor, even though there were three development applications before the Council. Assessor Roseth came to global conclusions in respect of the unsuitability of the locality for further residential development.

(c) Consideration

I am satisfied that the Assessor was aware that there were, before him, three separate development applications, which were to be determined individually. It seems clear that his use of the expression "the application" understandably refers to the legal application as a whole, since all three lots were bound up in the substantive issue of flooding and the applicant himself brought all three development applications before the Court in one application. It does not mean that he confined his consideration in the way suggested by the applicant.

Hence, I can find no error of law in the way in which the Assessor addressed his responsibilities in this aspect of the matter, and would not uphold the appeal on grounds 1 and/or 3.4. GROUND OF APPEAL (2)

(a) Submissions of the Applicant/Appellant

The applicant's argument is that the Assessor identified 4 issues at p 5 of his judgment in the following terms:

"* Whether the application needs to be supported by an Objection under State environmental Policy (sic) No.1 (SEPP 1)?

* Whether the access via the reservation called Elfords Road is satisfactory?

* Whether the local flood evacuation plan prepared by the applicant is acceptable?

* Whether the existence of a local flood evacuation plan justifies further development?"

He proceeded to deal with each issue in turn and resolved the first two favourably to the applicant. The third issue was discussed in the judgment, under the heading "Quality of Local Flood Evacuation Plan". Here, the Assessor referred to the evidence from two persons who were expert and had first hand knowledge in coordinating evacuation and rescue operations. These experts were Mr Opper who was called by the Council, and Mr Richards who was called by the applicant. The Assessor found Mr Opper's evidence highly persuasive, and noted in his judgment that Mr Richards "was not willing to give his support to the application, despite the fact that he was a witness for the applicant".

The applicant argues that as the Assessor went on to comment that the flood evacuation plan was workable, he in fact resolved the third issue favourably to the applicant.

It was on the fourth issue, namely, whether the existence of a local flood evacuation plan justifies further development, that the Assessor globally dismissed the appeal in so far as it affected all three lots.

At p11 the Assessor referred to a "general principle" put to the Court by Opper, namely, that evacuation plans are needed to deal with settlements which already exist on flood prone land, but that they should not be used as a justification for intensifying development on such land.

The appellant argues that the Assessor made an error of law in finding that this so-called "general principle" meant that no new development was allowed on flood prone land unless it related to existing improvements. While the Assessor appears to have regarded this principle as a binding matter, it was, in fact, an irrelevant consideration, and led the Assessor into the error of treating the development applications as prohibited.

In fact, the Hastings LEP establishes that dwelling houses on the relevant properties were permissible with consent of the EPAA. Section 90 provides the heads of consideration for the consent authority (here the Court on appeal) to follow in deciding that issue.

The applicant contends that s 90 requires a straight forward assessment of the suitability of the land, and that that analysis had already carefully been undertaken by Assessor Hussey in the earlier proceedings in which he approved the creation of the separate allotments specifically for the purposes of dwelling houses.

The Flood Plain Development Manual published by the NSW Government in December 1986 (Exhibit A) contemplates residential development by way of new dwellings in flood liable lands and sets out guidelines for dealing with such development applications. The applicant contends that in its presentation to Assessor Roseth it addressed all of the matters and the objectives of both the manual, and the relevant zone.

Therefore, the Assessor was in error in deciding the case on the sole basis of a prohibitory principle or rule given in evidence by a witness.

Having determined that the evacuation plan was satisfactory, the Court should have approached the matter with an open mind.

The applicant also contends that Mr Opper's oral evidence contradicted the existence of the principle on which the Assessor came to rely. Opper accepted the relevant body of principles as those contained in the flood plain development manual (see transcript p53 of day 1).

As, in the end, the individual development applications were never determined and the matter was disposed of by the Assessor misdirecting himself as to the ultimate question to be answered, the applicant contends that this constitutes an error or law. The Assessor's discretion miscarried because he was diverted by a red herring which proved to be wrong.

(b) The Council's Submissions

The Council points out that in this case the Assessor found the flood plan to be workable for the whole area, and not just for the three subject properties. Opper's was not the only evidence available to the Assessor on this issue. He also had before him the evidence of Weavers, the Council Engineer, and Keyes, the State Emergency Services' Senior Officer, who criticised part of the Hussey judgment (see Exhibit 2, Tab K, p138) (noting that Keyes was talking about a plan which was not in fact before the Assessor).The Council does not accept that the Assessor resolved the third issue before him (see section 4(a) above) favourably to the applicant.

The Assessor took all this evidence into account (see, for example, p7 of his judgment), and did not simply, or blindly, adopt Opper's "principle".

The Council further suggests that the word "principle" overstates the weight attached by the Assessor to the evidence given by Opper, and that he might equally have used the terms "hypothesis" or "proposition".

In any event, the Assessor balanced all the evidence available.

The Manual, on the other hand, is not prescriptive of all circumstances. It requires an assessment of the merits, and the Assessor obviously had regard to it. How it should be used in the instant case is dealt with in the LEP at cl 23.

(c) Legal Principles

The applicant relies on the principles in House v The King (1936) 55 CLR 499 at

504-5:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court

of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R v Sidlow (1908) 1 Cr App. R.28, at p.29). Lord Reading LCJ said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R v Wolff (1914) 10 Cr. App. R.107). Lord Hewart LCJ

has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R v Dunbar (1928) 21 Cr.App.R.19, at p.20). See, further, Skinner v The King (1913) 16 CLR 336, at p.340) and Whittaker v The King (1928) 41 CLR 230 at pp244-250).

In the present case we think we are unable to interfere with the sentence imposed by his Honour Judge Lukin if we apply the principles we have stated."

In Lovell v Lovell (1950) 81 CLR 513 the High Court revisited House v The King (at pp.518-9) and noted that the principles were the same as had been laid down by the House of Lords. A miscarried exercise of discretion is an error of law. This is a more fundamental principle than the requirement that an appellate tribunal has no right to substitute its own discretion for the discretion entrusted to the primary tribunal.

In Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1985-6) 162 CLR 24 at 42, Mason J, in a well known passage, said:

"But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v Lovell; Gronow v Gronow (1979) 144 CLR 513, at pp 519-20, 534, 537-8); Mallet v Mallet (1984) 156 CLR 605, at pp 614-6, 622. So too in the context

of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits".

Reservations were expressed about the decision in House v The King by Kirby P in Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367, which warned that it would be quite wrong for an Appeal Court to examine decisions of Assessors as if they were written by lawyers.

(d) Consideration of Ground (2)

I am not satisfied that Assessor Roseth misdirected himself simply on the basis of Opper's evidence.

A clear reading of his judgment shows that he took into account all the evidence that was before him and proceeded to make a decision on the merits of the case.

The Assessor's judgment does not represent a prohibition on similar future development applications. The Assessor made the merit determinations he was required to make under s 90 of the EPAA.

Nothing in his findings binds the Court to consider in future cases that any new "principle" has supplanted a proper approach to the Manual, and how it must be dealt with when the merits of a proposal are assessed.

Accordingly, I can find no error of law in respect of the Assessor's handling of the matters dealt with in ground 2 of the Appeal.

5. ORDERS

The appeal is dismissed.

The Respondent's costs should be paid by the Applicant.

Assessor Roseth ordered that exhibits 2, 3, 4 and C remain with the Court papers. I see no reason to depart from that order. Accordingly, exhibits A and D before me may be returned.