Hewitt v Hurstville Council

[2001] NSWLEC 294

Reported Decision: 119 LGERA 152

Land and Environment Court

of New South Wales

CITATION:	Hewitt v Hurstville Council [2001] NSWLEC 294
PARTIES:	APPLICANT: Hewitt RESONDENT: Hurstville City Council
FILE NUMBER(S):	11096 of 2000
CORAM:	Bignold J
KEY ISSUES:	Development Application :- Whether in upholding objection pursuant to SEPP No 1-Commissioner fell into legal error.
LEGISLATION CITED:	Land and Environment Court Act 1979, s 56A SEPP No 5-Housing for Older People etc. SEPP No 1-Development Standards
CASES CITED:	Brimbella v Mosman Municipal Council (1985) 79 LGERA 367; Hooker Corporation Pty Ltd v Hornsby Shire Council (NSWLEC 2 June unreported); Memel Holdings Pty Limited v Pittwater Council (2000) 110 LGERA 217; Winten Property Group Ltd v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	4 December 2001
DATE OF JUDGMENT:	12/21/2001
LEGAL REPRESENTATIVES:	APPLICANT: Ms M Painter, BarristeR SOLICITORS Macedone Christie Willis RESPONDENT: Mr P Rigg, Solicitor SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND

Matter No. 11096 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

21 December 2001

ROBERT JAMES HEWITT

Applicant

v

HURSTVILLE CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal by the Council pursuant to the Land and Environment Court Act 1979, s 56A against the decision of the Senior Commissioner upholding the Applicant’s appeal under the Environmental Planning and Assessment Act 1979, s 97 and granting development consent subject to conditions to a residential development pursuant to the provisions of State Environmental Planning Policy No 5 – Housing for Older People or People with a disability (SEPP No 5).

2. According to its Notice of Motion instituting its appeal, the Council relies upon the following grounds of appeal:
(i) The Senior Commissioner erred in law in failing to identify the objectives of the development standard in clause 12 of State Environmental Planning Policy No 5 (“SEPP 5”) and then failed to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard.
(ii) The Senior Commissioner erred in law in failing to make any relevant finding that the access to the facilities referred to in clause 12(1)(a) and clause 12(1)(c) of SEPP 5 were not complied with, such access being a pre-condition to the permissibility of the proposed development.
(iii) The Senior Commissioner erred in law in failing to make any relevant finding in relation to the availability of transport services pursuant to clause 12(2)(b)(iii) of SEPP 5.
(iv) The Senior Commissioner erred in law in failing to state that he had formed the requisite positive opinion called for by clause 12(1) of SEPP 5.
(v) The Senior Commissioner erred in law by taking into consideration irrelevant matters in considering the objection under State Environmental Planning Policy No. 1 relevant to clause 12 of SEPP 5.
B. THE RELEVANT PLANNING CONTROLS

3. The appeal concerns the provisions contained in cl 12(1) and (2) of SEPP No 5 and the Applicant’s objection pursuant to State Environmental Planning Policy No 1—Development Standards (SEPP No 1) that compliance with the locational requirements imposed by cl 12(2) of SEPP No 5 in respect of access from the proposed development to the requisite services and facilities was unreasonable and unnecessary.

4. Clause 12(1) and (2) of SEPP No 5 provide as follows:

12 (1) Location, facilities and support services The consent authority must not consent to a development application made pursuant to this Part unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:

(2) Access complies with this subclause if:

(a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development, or
(b) there is a transport service available to the residents who will occupy the proposed development:
(i) that is located at a distance of not more than 400 metres from the site of the proposed development, and
(ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the relevant facilities or services, and
(iii) that is available both to and from the proposed development during daylight hours at least once per day from Monday to Friday (both days inclusive).

5. Both before the Senior Commissioner and on appeal, the Council has conceded that cl 12(2) of SEPP No 5 in specifying the maximum distance of 400 metres between the proposed development and the requisite services and facilities relevantly imposes a “development standard” within the meaning of the EP&A Act which is amenable to the dispensing power conferred by SEPP No 1.

6. The dispensing powers are relevantly conferred by cll 6 and 7 of SEPP No 1, which provide as follows:

6 Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefore) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection.

7 Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6.

C. THE APPLICANT’S OBJECTION PURSUANT TO SEPP NO. 1

7. There was admitted into evidence before the Senior Commissioner two forms of objection pursuant to SEPP No 1, namely the objection contained in the Report of the Applicant’s Town Planning Consultant, Mr Handford (Exhibit F) and the objection contained in Mr Handford’s Addendum Report (Exhibit G).

8. I note that when Mr Handford gave oral evidence he described his Addendum Report as “a couple of amending sheets” (Transcript of 21 June 2001 at p 60 between lines 25 and 30). From that point of time, the Applicant’s relevant objection pursuant to SEPP No 1 appears to have been commonly regarded by the parties and by the Senior Commissioner, as the objection formulated in Mr Handford’s Addendum Report and it is that form of objection that I think must be considered to be the relevant objection. It was in the following terms:

State Environmental Planning Policy No 1 – Development Standards

Pursuant to clause 6 of SEPP No 1 objection is made to clause 12 of State Environmental Planning Policy No 5. The standard being objected to is the requirement to have access to:

· shops, banks and other and commercial services that residents may reasonably require; and

· community services and recreational facilities; and

· the practice of a general practitioner.

Access complies if the services and facilities is

· located within 400m from the proposed development; or there is a transport service available to the residents that is located not more than 400m from the proposed development; and will take those residents to a place that is located at a distance not more than 400m from the relevant facilities or services.

In regard to the proposed development both the distance to the shops and facilities and transport service are over 400m.

It is submitted in this instance that the standard is unreasonable and unnecessary for the following reasons:

· the access from the site to the shops is not unduly difficult. Expert evidence to be given by Mr M Relf examines the distance and terrain from the subject site to the shops and concludes that that the objective of reasonable access has been met.

A. B Stephens and Associates have calculated the gradient and distance from the site to the shops is 450m and the gradients range from 1 in 106 to 1 in 12.5. These gradients comply with the guidelines published by DUAP in their publication— Housing for older people and people with a disability in your community.

From my reading of the standard I do not believe that the 400m distance is intended to be absolute. For example, the clause allows the development site to be 400m from transport and then another 400m to services or facilities. This obviously allows for an 800m distance with an appropriate break. Also the clause only states that the 400m distance is to the facilities in general, with each facility being greater than 400m.

· The variation to the standard is not great in numerical terms. The extra distance to be walked would not cause any real inconvenience.

· There are ample alternative modes of transport available. For example, the St George Community Transport Inc.

D. THE REASONS FOR JUDGMENT OF THE SENIOR COMMISSIONER

9. It was common ground before the Senior Commissioner that the proposed development did not comply with cl 12(2) of SEPP No 5 and that its non-compliance was the subject of the Applicant’s objection pursuant to SEPP No. 1.

10. At par 28 the Senior Commissioner noted that “…the dispute before the Court was, first and foremost, one in relation to access to the site for prospective residents”.

11. The judgment then proceeds to discuss this issue, and the competing evidence adduced on it, in the following extended passage at par 29 to par 34 (inclusive) under the heading “Access and Distance of Travel”:—

29. As earlier noted, one of the more recent amendments to

State Environmental Planning Policy No. 5 is contained in clause 12(2)(a) where the distance of travel to services as earlier specified, is limited to a distance of 400 m. Unfortunately, the definition of “distance” or how it should be measured is not provided in State Environmental Planning Policy. Given the complexion of the argument in this matter, that immediately leads to some difficulty.

30. As earlier noted, it appeared to be agreed that pedestrian path from the front of the proposed development to the nearest shops in Ogilvy Street south would be in the vicinity of 450 m in length. However if the distance given in the clause were to be interpreted as a radius from the centre of interest, the relevant shops could be seen as falling within 400 m. In this regard the use of a radius to set out acceptable distances of travel has a long pedigree in local planning for particularly access to schools and social facilities. The attached analysis provided both by Ms Evans and by surveyors on behalf of the applicant appear to be mutually consistent and confirm the 450 m long path of travel on foot.
31. Given this uncertainty, the applicant through its expert, Mr Handford, presented an objection to this standard launched through the provisions of State Environmental Planning Policy No. 1 (Development Standards).
32. Given the significance of this issue in the context of this dispute, Mr Handford’s suggested reasons to conclude that the application of the standard in this instance would be unreasonable and unnecessary are, in the following terms:-

· The access from the site to the shops is not unduly difficult. Expert evidence to be given by Mr M Relf examines the distance and terrain from the subject site to the shops and concludes that:- the objective of reasonable access has been met.

· A B Stephens and Associates have calculated the gradient and distance from the site to the shops. The distance from the site to the shops is 450 m and the gradients range from 1 in 106 to 1 in 12.5. These gradients comply with the guidelines published by DUAP in their publication – Housing for Older People and People with a Disability in your Community.

· From my reading of the standard I do not believe that the 400 m distance is intended to be absolute. For example, the clause allows the development site to be 400 m from transport and then another 400 m to services or facilities. This obviously allows for an 800 m distance with an appropriate break. Also, the clause only states that the 400 m distance is to the facilities in general, with each facility being greater than 400 m.

· The variation to the standard is not great in numerical terms. The extra distance to be walked would not cause any real inconvenience.

· There are alternative modes of transport available. For example, the St George Community Transport Inc.

33. In dealing with this issue of access and distance, the Council relied on the evidence of Ms E Evans, the Social Planner previously referred to. She was generally opposed to the development and in her conclusion explained her opposition in the following terms:-

One of the potential issues people need to deal with as they age, is the likelihood of becoming less mobile and requiring aids such as wheelchairs and motor scooters in order to reach services and facilities. As demonstrated above, for residents of the proposed development, this would pose significant difficulty. In such circumstances people become more dependent on support services to assist them manage the necessities of day-to-day life. In the case of likely residents of this development, such increasing dependence will significantly increase the cost of living. In my experience, circumstances such as these increase the likelihood of people moving into alternative accommodation, particularly residential care.

I conclude that the location of the development in relation to its accessibility to necessary services and facilities will not promote the ability of residents to age in place.”

The report has examined the distance to shops and transport and the quality of existing and proposed footpaths to these services to determine whether reasonable access to services is achievable from this site. The assessment is identified that:-

· The 450 m distance to Ogilvy Street shops reasonably complies with SEPP 5 clause 12; and

· The proposed footpath to be installed by the applicant will facilitate access to these shops in a manner which will suit older people and people with disabilities. Therefore it is apparent that the objective of reasonable access to services has been met. The report has also identified a wide range bus services (sic) that provide transport to all the major suburban and regional shopping centres.

Therefore, in my opinion the site of the proposed development does satisfy the design and locational requirements for access to services as required by SEPP No. 5 and the relevant Australian Standards.

12. After discussing the other issue raised in the proceedings (“Design and Siting”) which is not relevant to the present appeal, the Senior Commissioner states his “Conclusions” at pars 39 to 50 (inclusive), the following passages at par 39 and par 40 and par 47 and par 48, being the conclusions that are relevant to the issue raised by the present appeal:

State Environmental Planning Policy No. 5 this distance has been set at 400 m although as it stands it is unclear what this is intended to define. If it is on a conventional radial form of measurement as commonly applied to local planning, the development application could be seen as complying. However, if taken as a perhaps the more logical actual distance of travel on foot or via a wheeled conveyance, then the distance to the local shopping centre at Ogilvy Street south exceeds the 400 m by approximately 50 m. For this reason a State Environmental Planning Policy No. 1 objection has been lodged.

…….

…….

…….

…….

…….

…….

State Environmental Planning Policy No. 5, as revised in more recent times, and in particular to the following objective:-

Create opportunities for the development of housing that is located and designed in a manner particularly suited to both those older people who are independent, mobile and active as well as those who are frailer and other people with a disability regardless of age.

48. It appears to me that this development is acceptably close to existing services which are accessible via wheelchair if necessary and over gentle grades which were described by the applicant’s expert, Mr Relf, as

undulating. Having traversed this pedestrian access path with the parties, I am confident that the people intended to be catered for by this form of development and prescribed in SEPP 5, would indeed find the path of travel to be acceptable and convenient.

E. THE COUNCIL’S ARGUMENT IN SUPPORT OF THE APPEAL

13. The Council’s argument that the Senior Commissioner fell into legal error in upholding the Applicant’s objection pursuant to SEPP No 1 principally focuses attention on the manner in which that decision was arrived at. In this respect, it was submitted that the Senior Commissioner failed to identify the objective underlying the provisions of cl 12 of SEPP No 5 and that in consequence of that failure, it was impossible for him to determine whether the development standard was consistent with the aims of the Policy and therefore impossible for him to determine whether compliance with the standard was unnecessary or unreasonable in the circumstances of the case. (This submission encompasses grounds (i) and (ii) of the Council’s grounds for appeal.)

14. A discrete submission was that the Senior Commissioner, in upholding the objection pursuant to SEPP No 1, fell into error by taking into account irrelevant considerations (as expressed in pars 40 and 48 of his reasons for judgment) and by applying the wrong test. (This submission encompasses ground (v) of the Councils grounds for appeal).

15. A further discrete submission was to the effect that because cl 12 of the SEPP No 5 operated as a “pre-condition” to the grant of development consent, it was incumbent upon the Senior Commissioner to make relevant findings to the effect that he was satisfied that residents of the proposed development would have the requisite access to the requisite services and facilities specified in cl 12(1), and in particular, since it was common ground that the facilities and services that were available in the existing local shopping complex situate some 450 metres from the proposed development did not fulfil or satisfy the requirements of cl 12(1), that he make relevant findings in respect of accessibility to the relevant transport service to transport residents to a place providing those relevant facilities and services. (These submissions encompassed grounds (iii) and (iv) of the Council’s grounds for appeal.)

16. In advancing all of these arguments, the Council relied heavily upon the judgment of Lloyd J in Winten Property Group Ltd v North Sydney Council (2001) NSWLEC 46 where his Honour, after referring to the judgment of Cripps CJ in Hooker Corporation Pty Ltd v Hornsby Shire Council (NSWLEC 2 June unreported) recently described by Talbot J in Memel Holdings Pty Limited v Pittwater Council (2000) 110 LGERA 217 as “a classic statement of the approach to be taken when considering an objection under SEPP 1”, made the following observations in respect of the Hooker Corporation case:

26. In applying the above-mentioned judgment, it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order).

First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

27. Memel Holdings Pty Limited v Pittwater City Council, to which I have referred was an appeal against a decision of the Senior Commissioner. Talbot J said (at 221):

The failure to identify the objectives of the development standard and then to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard in the subject case means that the Senior Commissioner fell into legal error on a matter which was fundamental to the ultimate decision.

28. It seems to me that the Senior Commissioner has in the present case fallen into the same error which he committed in Memel Holdings. I refer to the Senior Commissioner's statement that the development is seen as entirely acceptable as amended and should be supported by the relief available under State Environmental Planning Policy No. 1. In this respect the Senior Commissioner has misdirected himself. His reference to "the development" instead of to the non-compliance and to it being seen as entirely acceptable without reference to the object or purpose of the standard or to the objects of the Act suggests that he has undertaken a merit assessment rather than assessment under SEPP 1.

17. During the course of argument, the Council raised a further ground (albeit one that is related to ground (iv) for appeal) namely that according to his reasons for judgment, the Senior Commissioner had only determined the objection pursuant to SEPP No 1 in respect of the distance of the development site from the local shopping complex and not in respect of its distance from the nearest transport service. The absence of such a determination in respect of the nearest transport service was said to be a fatal deficiency in the Senior Commissioner’s upholding of the objection pursuant to SEPP No 1, because it was common ground that the local shopping complex which only provides a limited range of shops does not satisfy the requirements for the provision of facilities and services that are stipulated in cl 12(1) of SEPP No 5.
F. THE APPLICANT’S ARGUMENT RESISTING THE APPEAL

18. The Applicant’s competing argument accepted that the decision of Lloyd J in Winten Property Group Ltd v North Sydney Council had formulated the proper approach that was required for the evaluation of an objection pursuant to SEPP No 1, but submitted that a fair reading of the Senior Commissioner’s reasons for judgment revealed that he had adopted that approach. In particular, Counsel for the Applicant submitted as follows:—
(i) The case proceeded before the Senior Commissioner on the common basis that cl 12(2) of SEPP No 5 relevantly imposed a development standard by specifying the maximum distance of 400 metres between the proposed development and the requisite facilities and services or the requisite transport service.
(ii) The Senior Commissioner acceptance of Mr Relf’s evidence implicitly adopted as the relevant objective of the development standard that a proposed housing development under SEPP No 5 have reasonable access to the requisite facilities and services or transport service to those facilities and services: vide par 34 of his judgment where the Senior Commissioner accepts Mr Relf’s evidence on this matter.
(iii) Similarly, it is implicit from the Senior Commissioner’s acceptance of Mr Relf’s evidence as recorded at par 34 of his judgment that by necessary implication he found that strict compliance with the development standard would not be consistent with the aims of SEPP No 1.
(iv) At par 40 of his judgment, the Senior Commissioner expressly found on the basis of his acceptance of Mr Relf’s evidence, that the objection pursuant to SEPP No 1 had been sustained and that the rigid application of the 400 m distance separation “would be unreasonable to apply”. It necessarily followed that the Senior Commissioner found that the objection was well founded.
(v) The Senior Commissioner’s consideration of matters such as the nature and quality of the access between the proposed development and the local shopping centre and the probability that the residents of the proposed development would find the path of travel beneficial and convenient, in his determination upholding the objection pursuant to SEPP No 1, was not irrelevant to his task. On the contrary, they are very relevant to the consideration of the identified objective of the development standard, namely whether the proposed development has reasonable access to the requisite facilities and services and the bus transport service.

19. In order that I understood the full force and effect of the Senior Commissioner’s acceptance of Mr Relf’s evidence, Counsel for the Applicant, in her written submissions, summarised the content of Mr Relf’s written report which was admitted into evidence before the Senior Commissioner as Exhibit H.

Mr Relf’s report was admitted into evidence as Exhibit H. In his report, at pages 5 and 6, he notes that in his view there is reasonable compliance with SEPP 5 clause 12, that there is a small complex of local shops including a fruit and vegetable shop and a deli, that there is a larger range of shops and services at a number of nearby regional centers all accessible by public transport. Bus lines, services and timetables are noted. Mr Relf concludes In summary, it is apparent that there are a comprehensive range of bus services that operate in the area within reasonable proximity to the proposed site that enable passengers to travel to all the major regional shopping centres in the region (at page 6).

Mr Relf also considered the quality of access to facilities and services and/or transport. He noted at page 6, it is apparent that whilst the 450 metre distance marginally exceeds the recommended distance the overall topography readily satisfies the topography requirements that will suit older people and people with disabilities. There followed considerable analysis of the route to each of 3 different bus routes, examination of the timetables of those services, leading to the conclusion (at page 7) that Clearly, while the distance to the existing bus stops exceeds the recommended 400 metres it is apparent that these pathways are readily accessible to older people or people with disabilities. Finally, consideration was given to the availability of railway services.

Mr Relf made the overall conclusion, a conclusion which the Senior Commissioner preferred to the conclusion proffered by the Council’s expert, and a conclusion which was adopted by the Senior Commissioner, that the actual access provided by the proposed development reasonably complied with the requirements of SEPP 5 clause 12. He concluded (at page 7) therefore it is apparent that the objective of reasonable access to services has been met.

G. CONCLUSIONS AND ORDERS

20. In my judgment, the Council has not established that the Senior Commissioner fell into legal error in upholding the Applicant’s objection pursuant to SEPP No 1 that compliance with the development standard imposed by cl 12(2) of SEPP No 5 is unreasonable in the circumstances of this case. In this respect, I should emphasise that the Council’s appeal grounds did not include grounds to the effect that (i) there were no reasons given for his determination upholding the objection; (ii) the identified objective of the development standard was legally erroneous; and (iii) the Senior Commissioner’s determination of the objection and the development application had telescoped into one process an overall merit evaluation of the development proposal.

21. In so concluding, that the Council has not established relevant legal error, I would generally adopt the analysis of the Senior Commissioner’s reasons for judgment that has been proffered by Counsel for the Applicant, to the effect that the Senior Commissioner complied with the approach for the proper consideration and determination of an objection pursuant to SEPP No 1 enunciated in the judgment of Lloyd J in the Winten Property Group case, even though that compliance, in some important respects, is only discernible by the process of drawing necessary implications from relevant findings and reasoning contained in his judgment. Having heard the present appeal, it would obviously have been preferable for the Senior Commissioner to have explicitly addressed the relevant questions rather than leaving the matter to be gleaned only by the process of necessary implication and inference.

22. Again, by a process of necessary implication I am satisfied that the Senior Commissioner’s judgment made the necessary findings concerning the relevant requirements imposed by cl 12 of SEPP No 5 in the present case.

23. Finally, I accept the Applicant’s submissions that the Senior Commissioner in upholding the objection pursuant to SEPP No 1 did not take into consideration irrelevant matters, when he considered such things as the nature and quality of the access between the proposed development and the local shopping centre and the adjacent bus stop, and the Applicant’s preparedness to accept the Council’s condition that he provide a constructed footpath over the path of travel.

24. The only matter that has caused me serious doubt is the question only raised by the Council on the hearing of the present appeal, as to whether the Senior Commissioner’s upholding of the objection pursuant to SEPP No 1 included that part of the objection that relates to the distance from the proposed development to the bus stop located adjacent to the local shopping centre.

25. Unfortunately, the Senior Commissioner’s reasons for judgment make no specific reference to this aspect of the Applicant’s objection. They only refer to the local shopping centre, which as I have earlier mentioned does not satisfy the full requirements of cl 12(1) of SEPP No 5 for the provision of requisite facilities and services.

26. Whereas it is possible that the Senior Commissioner did not appreciate the fact that the local shopping centre did not provide the requisite facilities and services, there can be no doubt that both the Applicant’s written objection pursuant to SEPP No 1 and the Applicant’s expert evidence via Mr Handford and Mr Relf (and especially the latter) did extend to the location of the bus stop adjacent to the local shopping centre, which bus stop, like the shops, was more than 400 metres from the site of the proposed development.

27. In these circumstances, and despite the Senior Commissioner’s total failure to advert to the transport service required to be available by cl 12(2) of SEPP No 5, the preferable interpretation of the scope and content and effect of the Senior Commissioner’s upholding of the Applicant’s objection pursuant to SEPP No 1, is that he was upholding the objection in its entirety, namely in respect of both the local shopping centre and the adjacent bus stop which were both situate more than 400 metres from the site of the proposed development.

28. Such a result does not involve any straining of the language employed by the Senior Commissioner since clearly, when he states at par 40 “that the objection has been sustained”, it is the entire objection that is being referred to (and that objection undoubtedly included the exceedance of the 400 m distance between the proposed development and the bus stop located adjacent to the local shopping centre). Similarly, when he states at par 40 that his conclusion that the objection had been sustained is based upon his acceptance of Mr Relf’s evidence, that evidence undoubtedly included Mr Relf’s opinion that the proposal has reasonable access to a transport service to major suburban and regional shopping centres (vide par 34 of the judgment). These twin facts satisfactorily answer any doubt concerning the scope and effect of the Senior Commissioner’s determination upholding the objection pursuant to SEPP No 1 which doubt solely arises by virtue of the fact that the Senior Commissioner’s reasons only refer to the local shopping centre and make no direct or express reference to the requisite transport service.

29. In so reading and understanding the reasons for judgment of the Senior Commissioner in this case, I have applied the long established and consistent approach taken by this Court when determining an appeal pursuant to s 56A of the LEC Act, namely to avoid a “fine tooth comb” scrutiny of reasons for judgment of a commissioner, as a non-lawyer, delegate of the Court. This approach can be traced back to the decision of the Court of Appeal in Brimbella v Mosman Municipal Council (1985) 79 LGERA 367. when that Court possessed the appellate jurisdiction that is now vested in this Court by s 56A.

30. In so concluding that the Senior Commissioner’s determination had the effect of upholding the Applicant’s objection pursuant to SEPP No 1 in its entirety, I have not overlooked the Council’s criticism of the lack of express finding by the Senior Commissioner on relevant matters raised by the requirements of cl 12(2)(b) of SEPP No 5.

31. In particular, the Council relying upon the following evidence of Mr Handford under cross-examination, (Transcript 21 June 2001 at p 61/2) submitted that the Senior Commissioner’s judgment is silent on the question of the satisfactoriness of the arrangements for the return bus trip (being a relevant requirement in terms of cl 12(2)(b)(iii):

Rigg: So that the trip if one is doing shopping for a full range of products..(not transcribable)..at this particular shopping centre, the shopping trip must continue?

Handford: That’s right and the SEPP envisages that the shopping trip may continue and it says 400 metres to the public transport which you then travel wherever to get to somewhere that then leads you to 400 metres to the shopping centre that – all those services you’re seeking.

Rigg: In this case for example on the return trip you’re on the—

Handford: Other side of the road.

Rigg: Other side of Henry Lawson Drive and to travel across the overpass and then back to the site the trip then becomes closer to 800 than to 400?

Handford: Yeah, I think it’s probably closer to 700 but I agree that it’s over 400 and closer to 700 than 400.

32. I readily accept Council’s submission that the requirements of cl 12(2)(b) of SEPP No 5 include all three elements or features of the requisite transport service that are specified in sub-pars (i), (ii) and (iii) respectively.

33. Likewise I readily accept that the extract from the Transcript suggests that whereas the bus stop adjacent to the local shopping centre may be 450 metres distant from the site of the proposed development on its outward journey, the location of the bus stop on the homeward journey may require a travel distance of some 700 metres to the proposed development.

34. Precisely what (if any) effect was given to this evidence by the Senior Commissioner’s judgment, is not readily discernible from his reasons for judgment. But even assuming from the absence of any relevant finding in the reasons for judgment that the Senior Commissioner either ignored or discarded this evidence, that result would not demonstrate any error of law on his part. Arguably, such a result may suggest a mistake of fact on the part of the Senior Commissioner (but even this is doubtful in view of his total acceptance of Mr Relf’s evidence which dealt with the details of the various bus services that were available). However, even assuming that such an error of fact was made, it would be totally unavailing to the Council in this case, where the Court’s role is confined to the correction of legal error.

35. For all the foregoing reasons, the appeal must be dismissed.

36. Accordingly, I make the following orders:

1. Appeal dismissed

2. Question of costs reserved.