H and J Standen Pty Ltd v Minister for Planning and Infrastructure - [2014] NSWLEC 113

Land and Environment Court

New South Wales

Medium Neutral Citation: H & J Standen Pty Ltd v Minister for Planning and Infrastructure [2014] NSWLEC 113
Hearing dates: 19 June 2013, 19 September 2013
Decision date: 31 July 2014
Jurisdiction: Class 1
Before: Craig J
Decision:
1. The appeal is dismissed.
2. The Applicant must pay the costs of the First Respondent unless within seven days it notifies both the First Respondent and my Associate of a different order that it seeks.
3. Exhibits tendered on the appeal may be returned.

Catchwords: APPEAL - s 56A of the Land and Environment Court Act 1979 - major project application for extension of marina - application refused by the Planning Assessment Commission - appeal to Court pursuant to s 75K(2) of the Environmental Planning and Assessment Act 1979 - appeal dismissed - Court constituted by two Commissioners - whether each Commissioner required to give reasons for judgment - whether Commissioners failed to take into account a relevant consideration - whether bases upon which the appeal was decided was a basis on which the applicant was on notice - extent to which the Commissioners were obliged to disclose evidence contemplated as material to the decision to be made - consideration of the conduct of the hearing and issues addressed in the evidence and submissions of the parties as relevant to the basis of the decision - whether the applicant was denied procedural fairness - whether the decision was so lacking in reasonableness that unidentified legal error may be inferred - evaluative judgment and attribution of weight distinguished from unreasonableness - appeal dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Land and Environment Court Act 1979 (NSW)
Port Hacking Integrated Environmental Management Plan 2008
State Environmental Planning Policy (Major Development) 2005
Sutherland Shire Local Environmental Plan 2006 (NSW)
Cases Cited:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203
Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157
Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147
Carstens v Pittwater Council [1999] NSWLEC 249; 111 LGERA 1
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135

DAA Holdings Pty Ltd v Kiama Municipal Council [2011] NSWLEC 183
H & J Standen Pty Ltd v Minister for Planning and Infrastructure and Sutherland Shire Council [2012] NSWLEC 1365
187 Kent Pty Ltd v Council of the City of Sydney [2007] NSWLEC 382
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Segal v Waverley Council [2005] NSWCA 310; 64 NSWLR 177
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; 231 ALR 592
Category: Principal judgment
Parties: H & J Standen Pty Limited (Applicant)
Minister for Planning & Infrastructure (First respondent)
Sutherland Shire Council (Second respondent)
Representation: I J Hemmings (Applicant)
M Staunton (First respondent)
Submitting appearance (Second respondent)
Hones La Hood Lawyers (Applicant)
Department of Planning (First respondent)
Submitting appearance (Second respondent)

File Number(s): 10028 of 2013

Judgment

H & J Standen Pty Limited, the Applicant, operates a marina at Dolans Bay, an inlet of Burraneer Bay which, in turn, forms part of the major waterway known as Port Hacking in the southern Sydney metropolitan area. An application to extend that marina was made by the Applicant. The application was first refused by the Planning Assessment Commission, as delegate of the Minister, and subsequently by this Court, constituted by two Commissioners.

The Applicant appeals from the decision of the Commissioners pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (the Court Act). Such an appeal may be brought against that decision on a question of law (s 56A(1)).

By its amended summons, the Applicant identifies four grounds that it contends reveal error in the decision of the Commissioners on a question of law. Those grounds, succinctly stated, are:

(i) error in failing to provide adequate reasons for the decision;

(ii) error in failing to take into account a relevant consideration;

(iii) denying the Applicant procedural fairness; and

(iv) error in failing to discharge the function of determining the appeal to the Court according to law.

The application for marina extension

The Applicant had operated the Dolans Bay Marina (the Marina) for many years. Apart from land based activities, wet berths for 29 vessels were provided at the Marina. In addition, the Applicant leased 22 swing moorings in Dolans Bay as part of its Marina facility.

In February 2010 the Applicant submitted a major project application to extend to the Marina. That application was made under the now repealed provisions of Pt 3A of the Environmental Planning and Assessment Act1979 (NSW) (the EPA Act). At that time, the application was for approval of an additional 53 wet berths at the Marina, to be achieved by extending the arms of the Marina further into Dolans Bay. Part of the application proposed the surrender of the 22 swing moorings with the consequence that there would be an additional 31 vessels to be moored at the extended Marina. A total of 82 wet berths would then be available. As will become apparent, the application then proposed has since been amended.

The Applicant's proposed marina extension had been declared as a major project under s 75B of the EPA Act in February 2009. It was so declared because it was development of a kind that engaged the provisions of cl 6 and Sch 1 to State Environmental Planning Policy (Major Development) 2005. As such, the Minister was the responsible authority for approving the project: s 75D.

The Applicant's project development application had not been determined when Pt 3A of the EPA Act was repealed on 1 October 2011. However, it remained a "transitional Part 3A project" under transitional provisions of the legislation, with the consequence that it was required to be determined as if the provisions of that Part continued to apply.

In September 2011, the Minister delegated his powers and functions to determine certain project applications, including that made by the Applicant, to the Planning Assessment Commission (the PAC). Following completion of the statutory procedures for the public exhibition and processing of the Applicant's project application, it was determined by the PAC on 20 April 2012. The PAC refused the application, giving four reasons for its refusal. One of those reasons was that the expansion of the Marina would result in an overdevelopment "of the end section of Dolans Bay" which would "alienate a large section of what is now public open domain".

The appeal to the Court

The Applicant's project application having been "disapproved" by the PAC as the Minister's delegate (s 75J(1)), it appealed to the Court pursuant to s 75K(2) of the EPA Act. In so doing, it joined not only the Minister as a Respondent but also Sutherland Shire Council (the Council) in whose local government area Dolans Bay was located and who was generally the responsible authority for development under Sutherland Shire Local Environmental Plan 2006 (NSW) (the LEP).

Pursuant to s 36(1) of the Court Act, two Commissioners of the Court, including the Senior Commissioner, were directed to exercise the functions of the Court to determine the Applicant's appeal. They did so in a hearing that extended over a period of 5 days, including an inspection of the Marina and its environs by land and water, as well as hearing resident objectors onsite during the first day of hearing.

Both the Minister and the Council were active respondents in opposing the project application. (However, the Council was a submitting party in the appeal before me.) The parties each called a number of expert witnesses. Moreover, in the course of the hearing the project application was amended, so that as finally propounded it was for the addition of 44 new wet berths to be provided by two new marina arms and associated works. (Both parties agree that a reference to "fourteen wet berths" at [35] of the judgment appears to be an unintended error as the number of additional berths proposed is correctly recorded at [100].) The development proposal considered by the Commissioners also included the relocation of two existing fuel bowsers and provision of a pump-out facility for effluent and bilge water for boats berthed at the Marina.

Both the transcript of evidence given before the Commissioners and the voluminous Exhibits tendered to them have been included in the Appeal Books tendered before me. Among the documents tendered before the Commissioners was the Statement of Facts and Contentions prepared on behalf of the Minister. One of the contentions advanced to support refusal of the application stated:

"2. The Project would result in the unacceptable alienation of what is now public open domain."

Particulars of that contention were also supplied. Those particulars included assertions that the project would create a monopoly on Dolans Bay "by occupying a large percentage of the head of the bay for use by large boat owners"; that it was inconsistent with the objectives of Zone 16 under the LEP, in particular with paragraph (d) of those objectives expressed as intending to allow private development in that Zone "only where it does not reduce or hinder the use of public ... waterways" and that the project was inconsistent with the provisions of Port Hacking Integrated Environmental Management Plan 2008 "in that it fails to balance the demand for in water vessel storage and the use of the waterway as a public domain."

Among other documents tendered before the Commissioners were the written submissions of local objectors who were called to give evidence before them on the first day of hearing. Among those submissions was one from Cronulla and National Park Ferry Cruises (Cronulla Ferries), an operator of ferries and ferry cruises on Port Hacking. The thrust of that written submission was to state the number of cruise vessels operated by that company, both day and evening throughout the year, and the fact that, at present, cruise vessels enter Dolans Bay on a regular basis. That submission was addressed at the hearing by Mr David Ward, an employee of the company. An agreed summary of his evidence, tendered as Exhibit 27, reiterates the use by ferries of Dolans Bay, including those upon which both day and dinner cruises are conducted, and states that if the Marina is extended as proposed, access to Dolans Bay by ferry would be impeded.

The evidence adduced before the Commissioners and the submissions made by the parties concluded on the fourth day of hearing. The following morning, an oral judgment was delivered dismissing the appeal. That judgment was transcribed and subsequently published (H & J Standen Pty Ltd v Minister for Planning and Infrastructure and Sutherland Shire Council [2012] NSWLEC 1365) (the judgment).

The judgment

After describing the key elements of the project application, as originally submitted to the Department of Planning, the processing of that application by the Department and its Director General and the determination of the application by the PAC, the judgment identified those planning instruments or documents potentially applicable to the determination of the application. The provisions of s 75J(3) of the EPA Act are then recited, the effect of which is to render relevant, but not binding, the provisions of a statutory planning instrument that would otherwise apply to the decision as to "whether or not" the carrying out of the Project should be approved. The judgment then states (at [19]):

"19 As a consequence, the matters that we consider that we should have regard to in these proceedings (but are not bound to apply in any strict fashion) are as follows:

The provisions of SEPP 71, particularly cl 2K, "to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area"

The Sutherland Shire Local Environmental Plan 2006 (LEP 2006), including the objectives for Zone 16 Environmental Protection (Waterways), which is the zone within which the water based elements of the proposal fall and particularly the objectives (b) "to ensure development is carried in [sic] a way that protects the ecology, scenic value or navigability of the waterways" and (d) "to allow private development only where it does not reduce or hinder the use of public beaches, intertidal areas or the waterways" ".

The evolution of the application after first being lodged with the Department of Planning is summarised and the amendments made during the course of the hearing identified. The judgment also states that despite the Applicant's proposal to surrender 22 swing moorings presently leased by it, the evidence reveals that up to 10 of those would be reallocated within Dolans Bay by Roads and Maritime Services (RMS) (the relevant statutory authority) in order to address unmet demand in that Bay for swing moorings.

Having identified the elements of the project application in the form finally sought by the Applicant, the judgment then proceeds to address the issues by reference to which the determination was to be made. Those issues had earlier been identified in the following terms (at [15]):

the project would result in unacceptable visual impact;

the project would result in the unacceptable alienation of what is now public open domain;

the project would result in unacceptable traffic and parking impacts;

the bulk and scale of the project is excessive and inappropriate in its natural and urban context;

the project would constitute a hazard to safe navigation; and

that there is inadequate information in a number of particularised fashions.

Each of these issues is then addressed in the judgment by reference to the evidence received and by observations made by the Commissioners from various locations both on land and from the water on the first day of hearing. Having regard to the manner in which the appeal before me was argued, it is only necessary to record in detail that part of the judgment directed to the second issue identified above being "the unacceptable alienation of what is now public open domain". The conclusions expressed in the judgment on the issues of parking and traffic, visual impact and navigation was that none of them, individually, founded a basis upon which to refuse the application.

The judgment identified the issue of "bulk and scale" as being subsumed, in part, by the issue as to visual impact and, in part, by the issue of "comparative public benefits" (at [38]). The conclusion reached in respect of visual impact from the extended Marina was that it did not provide a reason to refuse the application (at [64]).

The critical issue upon which the appeal was ultimately determined adversely to the Applicant was stated at [73] as being:

" ... whether there is a public benefit in permitting the alienation of the waterway, which outweighs any public detriment that might arise as a consequence of doing so."

Having addressed a number of matters that were considered relevant to the determination of the issue, the Commissioners stated that the Applicant's case should be considered "at its highest" [90], that is, that all existing and proposed berths at the Marina would be occupied as would 10 of the relinquished swing moorings likely to be relocated in Dolans Bay and leased by RMS to other boat owners.

The reasons then proceeds by assuming a public benefit for those boat owners able to use the existing and new facilities, including the relocated moorings, and requiring that benefit "to be balanced against the competing public use aspects of the bay" (at [93]). As to the latter, two public use aspects are identified, namely what is described as "the purely local use" and the use by "the operation of the commercial ferry company."

Each of those aspects is then addressed by reference to the evidence. Having discussed that evidence, the judgment concludes at [100]:

"100 We are, however, satisfied that the public benefit provided by the cruise operator, together with the much smaller and more confined public navigation benefit that is provided to the local resident boat owners, significantly outweighs any public benefit that is conceivably capable of being provided by the marina."

That conclusion is followed by the order dismissing the appeal.

Ground 1: inadequate reasons

This ground is articulated on a narrow basis. In essence, the Applicant contends that only the Senior Commissioner provided reasons for the order dismissing the appeal. The second Commissioner failed to do so, notwithstanding the fact that the Court was constituted by both Commissioners for the purpose of determining the Applicant's appeal.

The Applicant relies upon two facts in support of its submission. First, it identifies the circumstance that on the final day of hearing, the judgment was delivered by the Senior Commissioner without any expressed agreement in, dissent from or other observation upon that judgment by the second Commissioner. The Minister accepts, as a fact, that this was the case.

Secondly, the Applicant points to the fact that when the judgment was reduced to writing for publication, it commences at [1] with the words "SENIOR COMMISSIONER:" followed by reasons. This, so it is submitted, confirms the fact that the second Commissioner failed to give reasons, with the consequence that the judgment of the Court is not supported by reasons that it is required to provide for its decisions.

It can readily be accepted that just as judges of the Court have a duty to provide reasons for their decisions, so also do Commissioners when exercising the Court's jurisdiction to determine proceedings that they are directed to hear (Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157; Segal v Waverley Council [2005] NSWCA 310; 64 NSWLR 177 at [21]). According to the Applicant, the duty to provide reasons extends to each Commissioner who constitutes the Court to hear and determine a particular matter.

As I have already identified, the Commissioners who heard the Applicant's appeal were directed to hear and dispose of those proceedings pursuant to s 36(1) of the Court Act. The decision of the Commissioners so directed is deemed to be the decision of the Court: s 36(3) of the Court Act.

Section 36(4) is of present relevance. It provides:

"(4) Where proceedings are directed to be heard and disposed of by 2 or more Commissioners:

(a) if the Senior Commissioner is one of the Commissioners hearing and disposing of the proceedings - the Senior Commissioner shall preside at the hearing of the proceedings,

(b) ...

(c) if the Commissioners are divided in opinion as to the decision to be made on any question:

(i) if there is a majority of the one opinion - the question shall be decided according to the opinion of the majority, or

(ii) in any other case - the question shall be decided according to the opinion of the Commissioner presiding."

Applying the latter subsection to the present case, the Applicant accepts that the presiding Commissioner was to be the Senior Commissioner and that the matter was required to be decided in accordance with his opinion in the event of a division of opinion. Nonetheless, the Applicant contends that the operation of that provision did not absolve the second Commissioner from the duty to form an opinion on the application and to provide reasons for that opinion.

In further support of its submission, the Applicant contrasts the provisions of s 36(1) with those of s 37(1), addressing the circumstance that in proceedings within Class 1, 2 and 3 of the Court's jurisdiction a Judge of the court hearing a matter may be assisted in so doing by a Commissioner or Commissioners. In such a circumstance, the Commissioner or Commissioners have no role in the adjudication "on any matter before the Court": s 37(3).

The Applicant submits that this contrast in function demonstrates and emphasises the need for each Commissioner, constituting a multi-Commissioner bench, to provide reasons for the decision made. So to do demonstrates that an adjudication role rather than an "advisory" or "assistance" role has been taken by each Commissioner. Further, even if by operation of s 36(4)(c)(ii), the opinion of the Senior Commissioner determines the outcome of the proceedings, it is contended that the reasons of the second Commissioner "facilitates the Court's internal appeals process" under s 56A of the Court Act.

At a level of general principle, much of the Applicant's submission can be accepted. As a member of the bench of two Commissioners directed to hear and determine the Applicant's appeal, the second Commissioner did have a duty to consider and form an opinion on the issues to be determined. Nonetheless, it was the duty of the bench of Commissioners, directed to hear and determine the proceedings in the name of the Court, to provide reasons for that decision.

As the Applicant accepts, had the second Commissioner in the present proceedings simply said "I agree", such a statement would have sufficed to fulfil the obligation for which it contends. The Applicant's acceptance of this position is, in my view, correct. Where a proposed order or decision, together with reasons for that order or decision have been announced and given by one Commissioner, being a decision and reasons with which another member of the bench agrees without qualification or addition, no purpose is served and no requirement imposed for those same orders and reasons to be repeated. A manifestation of agreement in both the decision or orders and also in the reasons is sufficient. That agreement may be made manifest by agreement to allow one Commissioner to deliver a joint judgment.

Undoubtedly, it would have been preferable in the present case for the second Commissioner to have articulated agreement both in the orders stated by the Senior Commissioner and also in his reasons for those orders (assuming that to have been intended) immediately following the delivery of the oral judgment. However, the relevant enquiry to be addressed in the context of the present ground of appeal is whether the reasons articulated by the Senior Commissioner are taken as being the reasons of the Court because the second Commissioner manifested agreement in them. In my assessment, that agreement was made manifest.

Both Commissioners sat to hear the proceedings. Together they attended the inspection of the Marina and its environs on the first day of hearing, as well as hearing evidence from local residents given that day. They sat as a bench in Court to hear the evidence given during the ensuing days and together heard the submissions by the legal representative of each party.

When the Senior Commissioner delivered judgment on the morning of the fifth day of hearing, the second Commissioner sat with him as a member of the bench. Importantly, the judgment then delivered is replete with use of the plural pronouns "we" and "us" and the possessive adjective "our" in the course of identifying issues considered, opinions formed or findings made. Nowhere in the judgment are the singular pronouns "I" or "me" or the possessive adjective "my" used in the judgment. The judgment was clearly framed to reflect the decision of both Commissioners, that is, as a joint judgment. Having sat together for four days to hear the matter, with the opportunity for discussion prior to delivery of judgment on the fifth day of hearing, it is appropriate to assume that the Commissioners had considered and discussed the issues that were raised, the evidence given and had agreed upon the decision to be made together with the reasons for that decision.

The circumstance that the second Commissioner sat with the Senior Commissioner while he delivered reasons for judgment, using the terms earlier identified, coupled with the absence of any articulated demur to those reasons, manifested an agreement in those reasons by the second Commissioner. Certainly, to an objective listener and observer the oral judgment delivered by the Senior Commissioner could only be understood as constituting a single judgment expressing the orders and reasons jointly agreed by both Commissioners. In that circumstance it is understandable that the second Commissioner did not perceive the necessity to say anything, her reasons having been made apparent in those articulated by the Senior Commissioner.

The oral judgment was transcribed and the transcript provided to the Commissioners. As the Senior Commissioner had delivered the judgment, the transcript identified the speaker with the word "Senior Commissioner". As an artefact of transcription, nothing turns upon the fact that the published judgment commenced at [1] by identifying the Senior Commissioner. Particularly must this be so (apart from the terms in which the judgment is expressed) as immediately beneath the recording of orders made at the conclusion of the judgment, the signatures of both the Senior Commissioner and the second Commissioner appear. The latter signature operates to confirm agreement in the orders and reasons articulated by the Senior Commissioner when delivering that judgment.

I reject the Applicant's first ground of appeal.

Ground 2: relevant considerations

As articulated, this ground of appeal is related to the challenge in Ground 3, directed to the manner in which the Commissioners determined the issue of competing public benefits. It is the contention of the Applicant that when determining that issue, the Commissioners failed to consider and take into account the potential public benefit from the availability of boat fuelling facilities at the Marina as well as the proposed pump-out facilities for effluent and bilge water.

As I have earlier recorded, the elements of the "final proposal" falling for determination were identified at [35] of the judgment. They included:

a relocation of the present fuelling points on the existing marina to the pontoon leading to the eastern arm with some land based handling improvements for fuel;

pump out for effluent and bilge water to be provided for those boats that are berthed at the marina.

The Applicant submits that at [80] the Commissioners "set aside as being irrelevant" the question of public fuel sales while at [81] they gave "no weight" to the effluent and bilge water pump-out facility proposed for the Marina.

The parties are agreed on the principles relevant to the consideration of this ground. Error will only be demonstrated if there is a failure to consider matters that the repository of power is bound to consider (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39). A misattribution of weight given to a matter being considered does not manifest legal error (Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41; Carstens v Pittwater Council [1999] NSWLEC 249; 111 LGERA 1 at [85]). Consistent with the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [33], the weighing of evidence is for the tribunal of fact, in this case, the Commissioners, and that process is directed to the merits of the application being determined. Further, a process that results in an erroneous finding of fact does not disclose any error of law (Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [44], [59]).

As I understand the Applicant's submission, it involves the following steps. The issue identified by the Commissioners at [73] of the judgment was "whether there is a public benefit in permitting the alienation of the waterway, which outweighs any public detriment that might arise as a consequence of doing so." Matters material to the consideration of that issue included two of the elements of the project application identified at [35] of the judgment, said by the Applicant to be "public fuel sales" and the provision of an effluent and bilge pump-out facility. The effect of what was said in the judgment at [80] and [81], so it is contended, is that these two matters were treated as being irrelevant to the consideration of that issue. However, consideration of those matters was essential in order to address the issue and was material to the determination of the project application. As a consequence, the failure to consider those two elements of the application when addressing the issue identified in [73] constituted an error of law.

For the purpose of addressing the Applicant's submission, I will assume, without deciding, that when determining the public benefit/public detriment issue, the Commissioners were bound to take into account the two elements of the project application to which the Applicant directs attention. On that assumption, it is necessary to determine whether on a fair reading of the judgment as a whole, the Commissioners failed to consider those elements in the manner for which the Applicant contends.

The only context in which public fuel sales and the provision of the pump-out facility are discussed in the judgment is that identified in [73], the relevant terms of which I have earlier quoted. After identifying the issue in the general terms of public benefit outweighing public detriment, the Commissioners describe the Marina as a private facility operated for profit for the benefit of boat owners whose boats are moored at the facility. They acknowledge that as a "broad concept" (at [75]) the Marina provides a public benefit analogous to that provided by the operator of a private bus service whose buses are utilised by the travelling public albeit upon payment of a fare (at [75]-[76]). The judgment then continues at [77] in these terms:

"77 A similar position prevails here, both with respect to that which is proposed to be provided by the marina and that which is currently offered by the ferry operator, an objector of the proposal, whose information will be considered in greater benefit [sic] later in this decision. It is essentially a balancing between the public benefits that are provided by the marina with the public benefits that are provided through that ferry operator's activities."

That paragraph provides the general context for what follows in [80] and [81]. The particular context for the latter paragraphs is provided by [78] and [79]. It is therefore necessary to set out all four paragraphs:

"78 Before dealing with what are the issues that arise with respect to the public benefit balance, we should enumerate a number of matters that we have expressly concluded should not be considered in this regard.

79 The question of whether or not there is public access to the marina (there being no public access to the marina or its carpark as evidenced by a number of photographs that were tendered) is a matter that we are satisfied is not relevant.

80 Second, the fact that there are no public fuel sales (and indeed, on Mr Standen's evidence, that there have been no fuel sales whatsoever for the past three years or so) is also a matter that we set aside as being irrelevant as to whether there is or is not a public benefit.

81 The final matter is the question of the pump-out of bilge water and effluent, which on Dr Martens' report at clause 3.3.2, page 9, where he says, "the pump-out facility will only be used for the marina boats with no pump-out system access to the public" is also a matter that we set aside as we consider it has no weight to be given in the question of the balance between the public and private benefit issues."

In [78] I take the Commissioners to be indicating that in addressing the "public benefit balance", that balance remains unaffected by considering "whether or not" there is general public access to the Marina or its carpark. Expressed differently, whether or not members of the public who do not have boats moored at the Marina are nonetheless able to have access to it or its carpark does not disturb the balance between the competing public benefits.

So understood, it is a statement that is unexceptional in undertaking the evaluative task required of the decision-makers. Clearly, the Commissioners are indicating that the absence of general public access to the Marina has not been counted as a factor weighing against the public benefit claimed by the Applicant to be a consequence of extending the existing Marina facility.

I read [80] of the judgment to similar effect, that is, as a "topic" which is neutral in its impact upon the competing public benefits. It is important to identify that "topic", having regard to the manner in which that paragraph of the judgment is expressed.

The topic or subject matter of [80] is the circumstance, as understood by the Commissioners, that fuel sales to the boating public from the Marina were not intended by the Applicant, consistent with the position that had pertained for the past three years. That circumstance, so the Commissioner's indicate, does not affect ("set aside as being irrelevant to") the public benefit balance being addressed ("whether there is or is not a public benefit"). The Commissioners are clearly indicating that the fact that there are "no public fuel sales" from the Marina is not a circumstance weighing for or against the public benefit that they had accepted exists by the Marina providing a berthing or mooring facility on a commercial basis. As the purpose of considering the availability of fuel sales from the Marina was to address "the public benefit balance" [78], in substance the observations at [80] are directed to the weight given to that facility when considering that balance.

Further, the Applicant's reliance upon the need to consider "public fuel sales" as an element of the project application for the purpose of addressing the public benefit issue would appear to be misplaced. The relevant element of that application, as identified at [35] of the judgment, is the relocation of the present fuelling points on the Marina. The element, so identified, says nothing of the Applicant's purpose in relocating those fuelling points. Reference to the evidence of Mr Standen reflects a finding that there was no commitment to fuel sales to boat owners not associated with the Marina. On that finding, it is both unsurprising and unexceptional that the Commissioners should identify fuel sales as having no impact upon the public benefit balancing exercise being addressed when the only potentially relevant element of the application was relocation of fuelling points.

The consideration by the Commissioners of the pump-out facility, as reflected in [81], is, in context, a further reflection of the neutral weighting impact which that aspect or element of the project application had upon the public benefit issue, expressed in the final words of that paragraph as being "the balance between the public and private benefit issues." Having identified the evidence that the facility was only available to "marina boats", they indicate that the proposal to provide the facility "has no weight" in addressing the issue ("the question") of balance. Both by reference to the terms used and also the substance of this paragraph, the proposed pump-out facility is addressed by reference to the weight that it has when determining that issue.

The context of [80] and [81], particularly that given by the preceding paragraphs [77]-[79], make apparent that fuel sales from the Marina and use of the proposed pump-out facility were considered by the Commissioners. As a consideration directed to weight when determining the issue that they had identified, such a consideration is not susceptible to challenge for legal error.

Even if I was to accept (which I do not) that the content of [80] and [81] should be read as findings that neither fuel sales nor the provision of the pump-out facility constituted a public benefit, as the Applicant submits were the findings, those findings involved the determination of issues of fact. Such findings, even if erroneous or perverse, are not susceptible to review on appeal under s 56A of the Court Act (Enfield Corporation; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157).

Ground 2 of the Applicant's grounds of appeal is rejected.

Ground 3: denial of procedural fairness

The Applicant contends that the principal basis upon which the Commissioners refused its project application was the impact upon Cronulla Ferries in operating cruises that, as part of the cruise route, entered Dolans Bay. That impact was not identified as an issue in the proceedings. Had the impact from the Marina extension upon cruise boats entering Dolans Bay been identified as an issue, the Applicant submits that it would have addressed it by evidence.

As a general principle, I accept that if a court contemplates deciding a case on a basis that differs from that on which the parties conduct that case, before so doing the parties must be advised by the court of that prospect so as to afford them the opportunity to address any new or changed issue (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [78]). In the context of a merit appeal to this Court, such as the present appeal, each party is entitled to conduct its case on the basis that the statement of facts and contentions that has been filed in accordance with the Court's requirements identifies the substantive issues upon which the Court's decision will be made. If the Court proposes to consider an issue as potentially relevant to its determination that has not been so identified, procedural fairness requires that the parties be so advised and afforded an opportunity to be heard in relation to that additional issue (Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147 at [101]; Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 at [35]). Failure so to do, should the additional issue be shown to bear upon the decision ultimately made, will result in a denial of procedural fairness. Such a denial will constitute an error of law that is amenable to appeal under s 56A of the Court Act (PetCarriers at [100]; Boral at [34]).

The principle requiring that procedural fairness be accorded can readily be stated. Its application, particularly the identification of an issue said to fall outside that joined by the parties to proceedings and the content of the new issue to be disclosed, is not so readily articulated. As the High Court stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; 231 ALR 592 at [48]:

"Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment."

Having identified the relevant principles, it is necessary to return to the manner in which the Applicant sought to support its submission on this ground. First, the premise of its submission is, as I have indicated, that the decision to refuse the application and dismiss the appeal turned upon the "determinative issue" of impact upon the capacity of Cronulla Ferries to continue to enter Dolans Bay with its cruise boats if the Marina was extended in the manner proposed. While the balancing issue is initially identified by the Commissioners in terms set out at [77], earlier quoted by me at [47], the Applicant submits that the issue "has escalated" by [93] of the judgment where the two aspects of public use of Dolans Bay are said to be "the purely local use of the bay and ... that of the operation by the commercial ferry company."

Ultimately, the Applicant described the issue formulated by the Commissioners on which they determined the application adversely to the Applicant as being:

"The balancing of public benefit [77] where the impact on the ferry operator (paragraphs [93] and [96]) was the more substantive issue with respect to navigation". (Written submission at [46]).

That issue was described by the Applicant as "its issue" referring to the Court. In respect of that issue it submitted (written submissions at [63]):

" ... where the Commissioners:

did not identify it as a substantive, and potentially determinative, issue with respect to navigation; and

where they did not raise the matter with the planners; and

where they did not raise the matter with the navigation experts

the Applicant has been denied procedural fairness."

Although the Applicant seeks to state the issue as being one directed to navigation, the context of the judgment from which the synthesised issue is said to emerge does not address "navigation" in the sense identified as a separate issue in the judgment. Matters directed to the issue of "navigation" are identified at [65]. In essence, "navigation" was addressed by expert evidence directed to the capacity of vessels moving in proximity to the Marina to use what is described as the eastern channel, the western channel and the fairway between the proposed arms of the Marina. That is not the sense in which the term "navigation" is used in [96], the context, as I have earlier indicated, being one in which competing benefits are being weighed. That distinction in the use of the term "navigation" is made at [94] of the judgment. It is a distinction apparently accepted by the Applicant's counsel in submissions, as is evidenced in the following exchange (Tcpt 20/12 pp 5:41 - 6:13):

"HEMMINGS: ...Can I deal with the navigation issues. The navigation issue, as I understand it, is one that directs its attention to the use of the western arm and the potential impacts that might be imposed upon users of the private jetty, ramps and pontoons along that western arm.

SENIOR COMMISSIONER: I don't think it is so confined.

HEMMINGS: There is a separate issue that I don't categorise as the navigation issue which is and there will now be a marina in the middle of the bay and so boats that were previously able to traverse the bay cannot, and rather than a navigation issue I clump that into -

SENIOR COMMISSIONER: So you would say exhibit 21, for example, relates to let me call it traffickability [sic] as opposed to navigational safety or ability?

HEMMINGS: Is 21 the -

SENIOR COMMISSIONER: The ferry part ['path'?].

HEMMINGS: Yes, that's part of what I would call the private public debate."

At [12] I have referred to the Minister's Statement of Facts and Contentions filed and served as part of the process in preparing for the hearing before the Commissioners. That document was tendered as an Exhibit before the Commissioners as was a Statement of Facts and Contentions filed and served on behalf of the Council. The Council adopted the contentions framed by the Minister as well as adding others of its own. As those documents indicate, the issue identified by the Minister, together with the particulars given in support of it, make abundantly clear that an issue to be determined in the proceedings was the extent to which the enlarged Marina would impact upon the use of Dolans Bay as a public waterway. That issue, in turn, necessitated consideration of all those who competed for use of that waterway. So much is acknowledged by the Applicant. Its complaint is that the issue, so articulated, did not identify, as a particular, that one use specifically so affected was that of Cronulla Ferries in the operation of its regular cruises.

Prior to the hearing, the Minister served upon the Applicant a bundle of documents that included written submissions received as a consequence of the public exhibition of the project application. That bundle included the letter from Cronulla Ferries to which I have earlier referred. That bundle was tendered, without objection, as Exhibit 2. Also served prior to the hearing was a list of lay witnesses who were to be called to give evidence during the course of the site inspection on the first day of hearing. Among those listed was Mr David Ward who was identified in the list as associated with Cronulla Ferries.

Mr Ward gave evidence at the Marina carpark on the first day of hearing. His evidence was to the effect earlier summarised at [14]. The legal representatives of all parties were present while that evidence was given. In the course of his evidence, Mr Ward was asked to mark on an aerial photograph the route followed by his Company's cruise vessels upon entering Dolans Bay. That document, as marked by him, was subsequently tendered without objection as Exhibit 21. No questions were asked of Mr Ward by the Applicant's legal representatives, nor was he requested then or subsequently to attend the hearing in Court for the purpose of cross-examination on his evidence. Some eight other objectors were heard at that time who not only articulated their objections but provided photographs that were subsequently tendered. A number of those photographs showed Dolans Bay with a ferry in the vicinity of the existing Marina.

Expert town planners were called to give evidence both by the Applicant and the Council. Apart from individual reports, those town planners had prepared a joint report addressing the contentions contained in the Statement of Facts and Contentions filed on behalf of both the Minister and the Council. That joint report was tendered at the hearing and became Exhibit 13. Its authors were Ms D Pinfold, a town planner employed by the Council, and Mr L Fletcher, a consultant retained by the Applicant.

In Exhibit 13, the planners expressed their disagreement "as to whether the proposal results in an unacceptable alienation of the public waterway for private use". In summarising her position on this issue, Ms Penfold said (Exhibit A4 tendered before me at p 1160):

"DP considers that most weight needs to be given to the impact on the public domain within Dolans Bay, given the scale of public uses that are affected. The identified uses are generally of smaller scale such as paddle powered watercraft, which benefit from the small, sheltered bay and the users of which may be more localised ... The proposal also restricts opportunities for water based sight seeing of Dolans Bay by members of the public either in private watercraft or public vessels (such as Cronulla and National Park ferries which operate 10 services a week into the northern arm of Dolans Bay), by physically and visually privatising the northern arm of bay."

Ms Pinfold was cross-examined on behalf of the Applicant. The general thrust of her cross-examination was directed to the competing benefits between an extended marina as proposed by the Applicant, affording an opportunity for a claimed demand for further mooring facilities within Dolans Bay to be met, as against the limitation that would be imposed upon other users of that Bay by that extension. Having identified that the combination of the Marina in its present form and swing moorings in Dolan's Bay ensured a balance of public and private use because of the capacity to move between swing moorings and the Marina, Ms Penfold was asked whether there were "very limited public viewing locations" available for the Marina. She replied (Tcpt 18/12 at p 58:33):

"WITNESS PINFOLD: Yes, I do. I think that the main public viewing locations are from the waterway itself from people in boats or on the cruises that occur there and the only other area really is that Gannons Bay Reserve, but that would be fairly localised, yes."

When asked to identify which members of the public were "losing out" by reason of the proposed Marina extension, she replied (Tcpt 18/12 at p 59:1):

"WITNESS PINFOLD: The members of the public who are losing out are the people who are in their watercraft trying to use that part of the bay who also have a visual alienation from views from their watercraft and the people who would view that from the ferry and the like. There is also a very small public loss from that public viewing area, so it is not - I agree that it's not an extensive public - well there's no extensive public views from around the bay."

The parties also engaged maritime experts to address navigational issues. Mr G Britton and Mr G Blumberg were retained by the applicant while Mr P Burge was retained by the Minister and Mr P Fielder was retained by the Council. They participated in the preparation of a joint report that became Exhibit 15. One of the topics discussed in that report was the existence of swing moorings within Dolans Bay and the capacity for vessels to navigate among boats fixed to those moorings. Relevantly, the report stated (Exhibit A4 p 1187):

"4.8 The experts discussed the navigational space occupied by vessels secured at swing moorings with Mr Fielder and Mr Burge both being of the opinion that this should focus upon the space actually occupied by the length and beam of a vessel at a particular point in time.

4.9 Mr Fielder demonstrated his opinion by producing a photograph which showed that there was currently no dedicated navigational channel leading into or out of Dolans Bay from Port Hacking and that vessels doing so were required to navigate between and around the numerous vessels secured to swing moorings.

4.10 He also produced a photograph of a fairly large charter vessel which conducted regular 'coffee cruises' from Cronulla into Dolans Bay and other bays and coves in the Port Hacking area. (Mr Blumberg later established that this vessel was the TSVM Gunnamatta, a 14.9m catamaran operated by Cronulla Ferries).

4.11 He stated that the cruise vessel certainly navigated through the moored vessels and through the space that the Project is proposed to occupy."

Mr Britten is recorded as responding to this observation by indicating that the swept area of a vessel at any point in time should be taken as being the area of the Bay occupied by the vessel attached to a swing mooring. Mr Fielder is further recorded as indicating that the proposed extension to the Marina "would exclusively occupy waterway that is presently shared by moored vessels and active and passive maritime recreational navigation."

In oral evidence before the Commissioner, Mr Fielder repeated what was attributed to him in Exhibit 15 when he said (Tcpt 19/12 p 57:16):

"WITNESS FIELDER: I'd be happy to go first on that. In our joint conclave review the vessel [Gunnamatta] which is a 40-50 ft catamaran pleasure boat that's, I think you have been given the photos of it in the bay and in the channel, at the moment it can safely navigate up to the end of the marina doing the river cruise turn around and come back without any impediments. With this development its movement in that area would be very restrictive."

It must be remembered that when each of the planning experts and navigation experts gave evidence, the Commissioners had already received evidence not only from local objectors who had expressed concern about the limitation of use of Dolans Bay brought about by the extended Marina, but also from Mr Ward on behalf of Cronulla Ferries, not only indicating the extent to which cruise vessels use the Bay, but also demonstrating the route taken by the Company's vessels within that Bay by reference to Exhibit 21. Notwithstanding this evidence, the Applicant contends that the impact upon the use of the Bay by cruise vessels had not been identified by the Commissioners as a determinative issue. Added in support of that contention is what in substance is said to be a failure on the part of the Commissioners to raise the issues with each set of experts.

The complaint seems to be that there were particular matters upon which questions were asked of witnesses by the Commissioners but the topic that is said to be decisive of the matter was not put, in terms, to those witnesses. Indeed, reference is made to the transcript where, so it is said, the Commissioners were afforded an opportunity to ask further questions but chose not to do so. In particular, reference is made to an exchange that took place between the advocates and the Commissioners at the commencement of evidence given by the navigation experts. Having identified the process of concurrent evidence to those witnesses, the Senior Commissioner posed to the advocates a question as to the topics upon which the experts were to be questioned. In so doing the Senior Commissioner indicated that he wished to deal "with the question of boat sizes in the western passage." In response to that question and statement, the transcript records the following (Tcpt 19/12 p 21:36):

"HEMMINGS: That's one of the topics I want to deal with. I want to deal with boat sizes in the western passage. I want to explore in order to properly understand exhibit 25 and to the extent there's general navigation matters concerned with those two issues, to address those.

SENIOR COMMISSIONER: I think we will also be wishing to address Exhibit 21, the ferry transit markings ... ".

After lengthy cross-examination of the experts, the Senior Commissioner enquired of counsel appearing before him as to whether their examination was complete. In response to that question, the transcript records that the Commissioner was asked by counsel either for the Applicant or the Minister (there is disagreement as to who it was) whether the Commissioners "had a question about a ferry." The transcript does not record any response to that question and the evidence that then continued did not directly address it. However, the tender of the joint reports and the oral evidence of Mr Fielder to which I have already referred, had preceded that question. After further evidence from the navigation experts, the Senior Commissioner then enquired as to whether there was "anything further about anything?" (Tcpt 19/12 p 74:4), to which counsel for the Council responded, "not unless you have a question about ferries". No further question was then posed to the navigation experts and they were excused.

The Applicant contends that at the conclusion of the evidence, it reasonably anticipated (written submissions at [49]):

"(1) an issue (not being a Contention in the proceedings) had been raised by objectors;

(2) that issue ultimately transformed into the Commissioner's issue ... ;

(3) that was not a concern shared by the planners, nor one which the Court needed the planners to address; and

(4) that was not a concern shared by the navigation experts, nor one which the Court needed the navigation experts to address."

Had it not been of that understanding, the Applicant says that it would have dealt with the evidence differently.

First, it would have identified what could only have been a minimal impact upon Cronulla Ferries or its cruises as its cruise operations were identified as operating on Port Hacking, a waterway having an area of about 11km² whereas Dolans Bay had an area of about 12.4ha and the Marina extension would only impede navigation "deep" into that Bay as a component of the overall cruise. Further, there was evidence available that could have been led to address "the Court's issue" had it been identified to the Applicant.

I do not accept the Applicant's submission directed to "the Court's issue" at the conclusion of the evidence. The Statement of Facts and Contentions served by the Minister and the Council had identified the issue of alienating the waterway of Dolans Bay by the proposed extension of the Marina. The Applicant had acknowledged by the manner in which it prepared its evidence and ran its case that the issue so identified raised a question of competing public interests in the use of that waterway. The terms in which the evidence had been prepared, particularly the expert evidence, had identified the issue by reference to those competing interests.

Further, the bundle of objections made available to the Applicant prior to the hearing had clearly identified the perceived competing interests in the use of the Dolans Bay waterway. Importantly, the applicant had available to it not only the written submission prepared by Cronulla Ferries but was made aware of the evidence to be led from and on behalf of that Company at the hearing before the Commissioners. That evidence was clearly perceived by the expert town planning evidence and the expert navigational evidence as a reflection of the manner in which the use of part of Dolans Bay would be alienated by the Marina extension. In the case of the experts, the thrust of the evidence was directed to the qualitative impact that the extended Marina would have. The fact that the Applicant's expert witnesses did not accept the impact for which the other witnesses contended or even that Ms Pinfold may not have considered the impact to be "major' is irrelevant to the present issue. For this same reason, it is incorrect for the Applicant to assert that the limitation on cruise boats to enter Dolans Bay was not "a concern shared" by either the planners or the navigation experts. As my recitation of the evidence reveals, both Ms Pinfold and Mr Fielder had addressed the "alienation" issue by making reference to the impact on cruise ferries entering Dolans Bay.

The parties in the present case were required to proceed to the hearing "knowing (or being deemed to know)" that the Commissioners were not bound to reach the same conclusion as any particular witness giving evidence before them on an issue of the present kind (187 Kent Pty Ltd v Council of the City of Sydney [2007] NSWLEC 382 at [21]). Particularly is this the case as expert evidence was not required to compare the plan of the proposed Marina extension with Exhibit 21 in order to conclude that the extension would impede the present path of ferry travel. Having had the benefit of a detailed site inspection and heard the lay evidence, the Commissioners were able, without the need for expert evidence, to make both a quantitative and a qualitative assessment of that impact.

Furthermore, I am not persuaded that the Applicant is assisted in supporting its present submission by reference to the absence of questions to the experts by the Commissioners when, so it is said, they had an opportunity so to do. The Commissioners clearly knew of the issue as framed by the Minister and the Council and of the manner in which it was being addressed both in the written and oral evidence. They were entitled to assess the expert evidence in the context of the issue to which it was directed. As the High Court said in SZBEL, the Commissioners were not obliged to provide "a running commentary" on what they thought of the evidence as it evolved.

Mr Standen, the manager of the Applicant, was called to give evidence on the third day of hearing. His evidence was given after the written submissions by way of objection had been tendered, the evidence of Mr Ward had been given on the first day of hearing and Exhibit 21 tendered. Mr Standen did not give any evidence responding to the material contained in the written objection from Cronulla Ferries, the evidence of Mr Ward or Exhibit 21. No doubt the absence of that evidence was a consequence of a forensic decision made on behalf of the Applicant.

In further support of its submission, the Applicant also points to the "manner in which" the evidence said to be relied upon by the Commissioners, came before the Court. The submission continues (written submissions at [57]):

"There was a letter of objection, and unsworn evidence taken on site from an employee of an objector. Clearly, that unsworn evidence was not able to be satisfactorily tested standing in the proponent's carpark."

The practice of this Court in hearing evidence from lay witnesses onsite is a practice that has been followed in the determination of almost all merit appeals for many years. Although those giving evidence onsite are not sworn, the evidence has always been treated as if given in court and intending witnesses are usually so advised. As in the present case, witnesses in that category are almost always called by the consent authority. Representatives of any other party present onsite are entitled to question each witness whose evidence is given. Assuming both counsel and solicitors for the parties to be present, each solicitor notes the evidence given by each witness, compares those notes with those taken by his or her counterpart and upon agreement being reached between them, the summary of evidence is later tendered in the course of the hearing. That is what occurred in the present case.

If the content of the evidence so given or the circumstances in which it is given warrants further consideration, that witness can be requested to give or continue his or her evidence when the formal hearing resumes in court. A request that this should occur is usually accommodated. It is accepted by the Applicant that no such request was made in the present case in respect of any of the evidence given onsite. The Applicant also accepts that it did not seek to question Mr Ward at the onsite hearing.

Contrary to its submission, I am satisfied that at the conclusion of the evidence the Applicant ought reasonably to have appreciated that the issue of competing public benefits was raised by the contention that the Marina extension would have the consequence of "alienating" or further "alienating" the use of Dolans Bay as part of the public domain. The evidence sufficiently disclosed that an aspect of the public benefit potentially weighing against further alienation of the head of the Bay was the effect that the extension would have in limiting the capacity of cruise ferries to enter that Bay.

In light of the Applicant's submissions, it is necessary to return to the terms of the judgment. While the effect upon cruise ferries is clearly identified in the judgment, a fair reading does not demonstrate that the impact on cruise ferry passengers was an impact that solely informed the decision to refuse the application.

As I have earlier recorded, at [93] the Commissioners identified two aspects of the "public benefit" issue being local use and operation of the commercial ferry company. At [94] the Commissioners said:

"94 One of the resident's submissions says, amongst other things, on the topic of navigation issues - navigation issues being raised in a much broader sense than that dealt with by the navigation experts - was in the following extract taken from p 46 of the resident objector bundle under the heading, Navigational Routes.

Dolans Bay is a small bay that is occupied by a relatively large number of swing moorings and their attendant vessels. In theory these vessels might create navigational impediments. In reality, because of wind and tide vessels tend to align themselves such that there are numerous navigational channels that allow easy ingress and egress.

This is not the case with the fixed structure being proposed. It would create an impenetrable barrier for much of the western side of the bay. Boats trapped on the western shore (such as those of residents) would be forced to travel a lengthy and narrow route along the shore.

Many private boat owners and users are imperfect boat-handlers, the restricted route that they would be forced to take constitutes a significant hazard, particularly as a marina-generated traffic will be considerably increased."

The Applicant places reliance upon the terms in which [96] of the judgment commences. The first sentence of that paragraph needs to be noticed. It says:

"The more substantive issue, with respect to navigation of the bay, was raised on behalf of the Cronulla and National Park Ferry Cruises."

Reference is then made in the two succeeding paragraphs of the judgment to the evidence of Cronulla Ferries both in the written objection, the evidence of Mr Ward and Exhibit 21.

The discussion in those paragraphs is not directed to an assessment of the impact upon the ferry operator. Rather, it is directed to the impact upon the number of passengers or patrons carried on the services provided by that operator. The limitation upon the "trafficable" area of Dolans Bay by ferries is identified as potentially affecting a greater number of members of the public in their enjoyment of the waterway than the number of people whose use falls under the description of "purely local use", notwithstanding the relevance of impact upon the latter. That understanding of the judgment is made apparent by reading together [99] and [100], the terms in which the latter paragraph is expressed having been earlier quoted by me.

The Applicant's counsel was first to address the Court. Prior to his address commencing, the Senior Commissioner identified "topics" that need not be addressed in chief but could be left to reply. The Senior Commissioner then continued (Tcpt 20/12 p 4:21):

"You should pay attention to whether or not you say standing in the shoes of a Minister we should disregard or give little attention to the SEPP, the LEP or the Port Hacking plan and then particularly the question of if you like the public benefit, private benefit, public navigation, private navigation conflict issues."

I have quoted at [62] an exchange that took place early in the Applicant's submissions between its counsel and the Senior Commissioner. In that exchange the Senior Commissioner expressly adverted to Exhibit 21 depicting the present path of travel of ferries within Dolans Bay. After the Applicant's counsel had identified that Exhibit as part of what he called "the private public debate", the following was said (Tcpt 20/12 p 6:12):

"SENIOR COMMISSIONER: That's fine, I just didn't want you letting that go past as it were. Wherever you deal with it, it needs to be dealt with.

HEMMINGS: I do attempt deliberately to separate them because they fall into as I would understand it different categories for the purposes of the Court's consideration. One is dealing with the potential alienation of the waterways and then competition between different potential users of the waterways, the other is in fact as a consequence of this conflict is there a different limitation which is a limitation strictly caused by navigation issues, and as I would understand the contentions, the joint reports and most recently the evidence given yesterday, to the extent there is a navigation issue it's one which directs its attention to this western arm."

Further reference either to the ferry service or to Exhibit 21 is made in the course of the Applicant's submissions to the Commissioners. Those submissions, in terms, recognise that there is an issue as to competition "between the different potential uses [sic] of the waterway who want to use it either because they need to or have the desire to ... there is without doubt a balance that the Court is being asked to carry out between favouring one of the potential users and there [sic] desire/need over others" (Tcpt 20/12 p 13:12-16). Later, in the context of the competition identified by the Applicant, the submission continues (Tcpt 20/12 p 14:47):

"HEMMINGS: ... The Court will look at it to say, however, in my alienation balancing exercise at the moment there is a private ferry company who may provide services to members of the public who have a desire to pass over the waters of Port Hacking and in particular Dolans Bay and there was a competition now between those two but it's not one that's informed by a permissible use debate, it's one that's informed by that competition.

SENIOR COMMISSIONER: And each of them, at least as I understand the broad proposition you're putting to us, that is, the applicant in these proceedings and the ferry operator are seeking to further their private interests which you accept are private interests but in the doing so they provide potentially conflicting public benefits, that is, the benefit of being able to berth your boat compared to the benefit of being able to travel on a regular ferry operation that follows the route shown on exhibit 21?

HEMMINGS: The short answer to that is, yes, but I can give a more detailed answer ... ."

Finally in the course of submissions in chief, the Applicant's counsel returned to address what was referred to as the "actual balancing exercise that the Court needs to carry out" for the competition among users of the waterway (Tcpt 20/12 p 21:32). Impact is then addressed with specific mention being made of "the ferry boat users" followed by a submission that the impact would be minimal, if any, because those ferry boat users have the entirety of Port Hacking to enjoy, with Dolans Bay forming only a "minute proportion of that part of the users' ability to enjoy the waters of Port Hacking" (Tcpt 20/12 p 22:1).

The evidence, the submissions and observations from the bench, as exemplified in the transcript references I have made, make two points clear. First, that the Court was considering the question as to whether there was a public benefit in permitting the alienation of the waterway that would occur should the Marina extension be approved which outweighed any detriment that might arise as a consequence of any approval that was given. Second, the Senior Commissioner clearly identified as being relevant to that question the impact of the proposed extension on the public benefit afforded to passengers or patrons using the ferry operator's vessels. The transcript references also make clear that the issues having been defined in that way, were addressed by the Applicant's counsel.

However, the issue was not left for exchange between the bench and those representing the Applicant. In the course of his final submissions, counsel for the Minister made reference to the written submission from Cronulla Ferries and Exhibit 21 in the following terms (Tcpt 20/12 p 29:9):

"One of the other matters that Dr Lam [sic] and Mr Fletcher thought it was important to note was there were no public ferry routes that passed the marina. But you've got the evidence in the bundle, which is the last document from the Cronulla Ferries that says - and Mr Ward gave the evidence - there's many regular ferry trips into Dolans Bay, which travel up to the existing marina and you've got exhibit 21 that shows you the ferry route. And that exhibit, which is at tab 27, exhibit 2 indicates at least 1500 passengers in November to December alone were on ferries that went into Dolans Bay."

That reference was part of the submission made on behalf of the Minister that the impact from the proposed Marina extension was unacceptable. The impact upon ferry users is repeated at Tcpt 20/12 p 31:34 and p 33:36. In his submissions in reply, counsel for the Applicant sought to respond to the submissions that had been made on behalf of the Minister directed to the ferries that entered Dolans Bay. In directing submissions to the ferry service, reference was made to the evidence of Mr Ward both by the Applicant's counsel and by the Senior Commissioner.

Quite apart from the position that pertained at the conclusion of the evidence, there can be no doubt that by the conclusion of final submissions, a significant issue in the case was the potential alienation of part of the public waterway. It is also clear that one of the identified impacts of alienation was impact upon ferry users. Relevantly, observations from the bench during the course of submissions made apparent that both the issue and all the identified impacts directed to that issue, including the impact upon ferry users were matters that were considered to be important to the Commissioners in considering the manner in which the proceedings should be determined.

Contrary to the position taken by the Applicant, an objective assessment of observations from the bench demonstrated that it was not a navigation issue that was of concern; rather it was a trafficable issue within Dolans Bay, as was made clear by the Senior Commissioner to the Applicant in the course of submissions. As I have earlier observed, expert evidence was not required to demonstrate that vessels presently entering Dolans Bay, including ferries, would be prevented from traversing the waterway area to be occupied by the proposed Marina extension.

The Applicant was not denied the opportunity to address the competing public benefit issue, properly described, upon which the decision of the Commissioners ultimately turned. For reasons earlier given, that issue is not accurately described at [46] of the Applicant's outline of submissions.

I reject the Applicant's third ground of appeal.

Ground 4: failure to discharge functions according to law

This ground of appeal is premised on the contention that "the judgment has gone wrong". That premise is elaborated in the following manner (written submissions at [67]):

"In the face of the evidence from the planners, and the navigation consultants, and in light of the insignificant impact upon a minor (0.125%) component of Port Hacking, the impact upon the ferry operator simply could never have led to a refusal of the application."

The submission that error of law is manifest in the decision of the Commissioners is founded upon the well known judgment of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353. Relevantly, his Honour said of a statutory decision-maker (at 360):

"If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review ... If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact functions according to law."

In a short written submission provided subsequent to the hearing of this appeal, the applicant sought to support this ground by reference to the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. The legal proceedings in that case had their origin in a successful application to the Federal Magistrate's Court for judicial review of a decision of the Migration Review Tribunal. Although three separate judgments were delivered by members of the High Court in that case, all three directed attention to the need for reasonableness in exercising a statutory discretion in order to render that exercise of discretion lawful. In his judgment, French CJ noted at [27] the observations of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223:

" ... that the word 'unreasonable' in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters".

The Chief Justice then stated that the kind of unreasonableness there identified "may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred", citing the decision of Dixon J in Avon Downs.

The Applicant places particular reliance upon the judgment of Gageler J in Li where his Honour said (omitting citation of authority):

"90. Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.

91. The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made ...

92. ... Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed."

All judgments of the Court in Li direct attention to reasonableness in the context of the jurisprudence that has developed upon the principle of administrative law directed to the concept of "unreasonableness" articulated in Wednesbury. In the present case, the Applicant expressly disavowed reliance upon a Wednesbury ground of challenge to the decision of the Commissioners (Tcpt 19/6 p 48:10-12). Importantly, a distinction must be made between a decision said to be infected by legal error because of unreasonableness and a decision that is founded upon the attribution of weight to a particular factor or factors leading to a result with which the Court may disagree. That distinction is reflected in the judgment of French CJ in Li where his Honour said at [30]:

30. The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, 'may have no particular legal consequence.'"

It seems to me that the Applicant's complaint as to reasonableness falls into the category of challenge identified by the Chief Justice, being a challenge without legal consequence in the context of an appeal under s 56A of the Court Act.

The Minister did not contest that the ground of appeal founded upon the Avon Downs principle was amenable to appeal under s 56A(1). It is a ground that has been addressed, without challenge in principle, in other appeals to Judges of this Court under the subsection (see for example DAA Holdings Pty Ltd v Kiama Municipal Council [2011] NSWLEC 183). In the absence of any submission directed to the principle in the present case, I am prepared to accept that an appeal founded upon the Avon Downs principle may, in turn, found an appeal under the subsection.

The major premise of this ground of challenge as articulated by the Applicant is that the Commissioners determined to refuse the Applicant's project application by reason of "the impact upon the ferry operator" (written submissions at [67]). The minor premise is that the evidence did not or could not reasonably lead to the conclusion that there was an impact upon the ferry operator. For reasons earlier given, the major premise finds no foundation in the reasons for judgment.

As the discussion of evidence at [96] and [97] of the judgment demonstrates, the focus of the Commissioner's consideration in this context was not upon the ferry operator as an entity but rather upon the nature and frequency of its services, together with the number of passengers or patrons who utilise those services. It was the impact upon the "enjoyment of the waterway" (judgment at [99]) by a large number of ferry users that was being considered and weighed.

As the Minister submits, the uncontested evidence led from Cronulla Ferries was that ferries operated by it travelled frequently into Dolans Bay and those ferries carried a large number of passengers. Further, it was uncontroversial that the number of ferry users, as members of the public, far outweighed the number of boat owners, as members of the public, who would have the opportunity of berthing their boats at the extended Marina.

The Applicant clearly acknowledged that in deciding the case, the Commissioners were required to balance the competing interests of members of the public who wish to berth or store boats at the Marina with the interests of members of the public who utilise the ferry cruises or participate in other boating or aquatic activities within Dolans Bay. That is apparent from some of the transcript references that I have earlier given. Further, the Applicant acknowledged that the Marina extension impacted "significantly upon a portion of Dolans Bay" (Tcpt 20/12 p 21:41).

In undertaking the balancing exercise, the evidence before the Commissioners rendered it reasonable to attribute greater weight to the benefit afforded to ferry users than the weight to be attributed to the benefit derived by those boat owners who would be afforded the opportunity to moor boats at the extended Marina. Importantly and contrary to the manner in which the Applicant framed its contention on this ground of appeal, the decision of the Commissioners was founded upon the combination of maintaining the public benefit enjoyed by "purely local" users of Dolans Bay with the public benefit enjoyed by ferry users outweighing the public benefit provided by the extended Marina. So much is made clear by the judgment at [100]. It was an evaluative exercise and conclusion that was rationally open to the Commissioners.

For these reasons, this ground of appeal is rejected.

Conclusions and orders

None of the four grounds of appeal advanced by the Applicant have been sustained. The appeal will therefore be dismissed.

The question of costs was not argued. However, having regard to the grounds of appeal, my preliminary view is that the Applicant should pay the Minister's costs and I propose to so order. If a different order is sought, the Applicant should give notice within seven days from the date of this judgment of the order that it seeks, such notice to be given both to the Minister and to my Associate and be accompanied by a short written outline of submissions in support of the order sought.

The orders of the Court are:

(1) The appeal is dismissed.

(2) The Applicant must pay the costs of the First Respondent unless within seven days it notifies both the First Respondent and my Associate of a different order that it seeks.

(3) Exhibits tendered on the appeal may be returned.

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Decision last updated: 31 July 2014

Medium Neutral Citation:	H & J Standen Pty Ltd v Minister for Planning and Infrastructure [2014] NSWLEC 113
Hearing dates:	19 June 2013, 19 September 2013
Decision date:	31 July 2014
Jurisdiction:	Class 1
Before:	Craig J
Decision:	1. The appeal is dismissed. 2. The Applicant must pay the costs of the First Respondent unless within seven days it notifies both the First Respondent and my Associate of a different order that it seeks. 3. Exhibits tendered on the appeal may be returned.
Catchwords:	APPEAL - s 56A of the Land and Environment Court Act 1979 - major project application for extension of marina - application refused by the Planning Assessment Commission - appeal to Court pursuant to s 75K(2) of the Environmental Planning and Assessment Act 1979 - appeal dismissed - Court constituted by two Commissioners - whether each Commissioner required to give reasons for judgment - whether Commissioners failed to take into account a relevant consideration - whether bases upon which the appeal was decided was a basis on which the applicant was on notice - extent to which the Commissioners were obliged to disclose evidence contemplated as material to the decision to be made - consideration of the conduct of the hearing and issues addressed in the evidence and submissions of the parties as relevant to the basis of the decision - whether the applicant was denied procedural fairness - whether the decision was so lacking in reasonableness that unidentified legal error may be inferred - evaluative judgment and attribution of weight distinguished from unreasonableness - appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) Port Hacking Integrated Environmental Management Plan 2008 State Environmental Planning Policy (Major Development) 2005 Sutherland Shire Local Environmental Plan 2006 (NSW)
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147 Carstens v Pittwater Council [1999] NSWLEC 249; 111 LGERA 1 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 DAA Holdings Pty Ltd v Kiama Municipal Council [2011] NSWLEC 183 H & J Standen Pty Ltd v Minister for Planning and Infrastructure and Sutherland Shire Council [2012] NSWLEC 1365 187 Kent Pty Ltd v Council of the City of Sydney [2007] NSWLEC 382 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Segal v Waverley Council [2005] NSWCA 310; 64 NSWLR 177 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; 231 ALR 592
Category:	Principal judgment
Parties:	H & J Standen Pty Limited (Applicant) Minister for Planning & Infrastructure (First respondent) Sutherland Shire Council (Second respondent)
Representation:	I J Hemmings (Applicant) M Staunton (First respondent) Submitting appearance (Second respondent) Hones La Hood Lawyers (Applicant) Department of Planning (First respondent) Submitting appearance (Second respondent)
File Number(s):	10028 of 2013