Hill v Woollahra Municipal Council
[2002] NSWLEC 69
•05/07/2002
Land and Environment Court
of New South Wales
CITATION: Hill v Woollahra Municipal Council and Another [2002] NSWLEC 69 PARTIES: APPLICANT
Richard James HillFIRST RESPONDENT
SECOND RESPONDENTS
Woollahra Municipal Council
Paul Robertson Espie and Roslyn Margaret EspieFILE NUMBER(S): 40163 of 2001 CORAM: Talbot J KEY ISSUES: Judicial Review :- failure to take into account relevant matters - manifest unreasonableness
Development Application:- whether the council's approval was manifestly unreasonable
LEGISLATION CITED: Environmental Planning and Assessment Act s 79C, s 79C(1)(b), s 79C(1)(c), s 96
Woollahra Local Environmental Plan 1995 cl 18CASES CITED: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223;
Carstens v Pittwater Council (1999) 111 LGERA 1;
Mendoza v Minister for Immigration, Local Government and Ethnic Affairs and Others (1991) 31 FCR 405;
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1985-1986] 162 CLR 24;
Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1998) 98 LGERA 335;
North Sydney Council v Ligon 302 Pty Ltd [No 2] 93 LGERA 23;
Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319;
Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180;
Weal v Bathurst City Council and Another (2000) 111 LGERA 181;
Zhang v Canterbury City Council (2001) 115 LGERA 373DATES OF HEARING: 12/03/2002, 13/03/2002, 14/03/2002, 19/03/2002 (final written submissions) DATE OF JUDGMENT:
05/07/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr MG Craig QC
SOLICITORS
Mallesons Stephens JacquesFIRST RESPONDENT
Mr BJ Preston SC
SOLICITORS
Deacons LawyersSECOND RESPONDENTS
N/A
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND Matter No. 40163 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 7 May 2002
Paul Robertson Espie andFirst Respondent
- Roslyn Margaret Espie
Second Respondent
1. The applicant has commenced these class 4 proceedings to challenge the determination of Woollahra Municipal Council (“the council”) at its meeting on 12 June 2001 to grant development consent to DA 400/2000 lodged by Planning Workshop Australia on 12 May 2000, on behalf of the second respondents, who are the owners of the property named “Callooa” on lot 1 DP 939662, known as 5 Bennett Avenue, Darling Point. Development consent was granted for stratum title subdivision of the property into two allotments and the construction of a two-storey three bedroom dwelling on one of the newly created lots.
2. The land has an area of 1542m 2 . Callooa is a mid-nineteenth century Victorian residence listed by the National Trust, registered on the National Estate and identified as a heritage item by the Woollahra Local Environmental Plan 1995 (“the WLEP”).
3. It is proposed that the new dwelling will be constructed in an excavation within the excised lot. The excavation will include that part of the land which was the subject of a landslip in August 1998.
5. The basis of the applicant’s claim can be summarised as follows:-4. The applicant first lodged an objection to the development application in June 2000.
(2) Geotechnical and Hydrological matters as follows:-(1) the decision to approve the development application was itself unreasonable in the Wednesbury sense ( Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) on the basis that having regard to the impact on public safety, taking account of the proposed position of the garage fronting Yarranabbe Road, no consent authority, properly advised, could have made the decision, at least without conditions referable to public safety;
(2)(a) the council failed to consider relevant matters in that it directed itself to information related to another application;
(2)(c) the information provided by the applicant for development consent did not give details of off-site effects contrary to the requirements of the council’s policy. The application was approved subject to a condition requiring investigation and report.(2)(b) the council failed to consider the consequences of the conditions proposed by the consultant retained by the applicant for development consent which, if implemented, required the proposed building to be moved from the position shown on the architectural plans submitted in a direction that moved it closer to Callooa;
(4) when all of the above matters (1) to (3) are taken into account collectively (even if not made out individually) the decision of the council was so unreasonable that it was not open for the council to grant consent.(3) the decision by the council was made when the Mayor, Councillor Christopher Dawson (“the Mayor”), used a casting vote, whereby relying on a council policy to approve development applications in circumstances where there was less than a 50/50 chance of success on appeal to the Land and Environment Court;
6. The second respondents have entered a Submitting Appearance, except in relation to the question of costs.
The geotechnical and hydrological issues
7. Mr Craig QC, on behalf of the applicant, warns the Court against the temptation to infer or assume, from the presence of voluminous material in the council’s file, that the council had properly taken the geotechnical and hydrological issues into account. He relies on what was said in Zhang v Canterbury City Council (2001) 115 LGERA 373 and North Sydney Council v Ligon 302 Pty Ltd [No 2] 93 LGERA 23, namely that the Court must be satisfied the council took such matters into account in a way which could be said to be a “proper, genuine and realistic” consideration. The applicant’s case relies on putting the consideration by the council in context where, on its own admission, there was no person in the employ of the council capable of assessing geotechnical and hydrological issues. Furthermore, the proposal to build the new dwelling entirely within an excavation was a unique and unusual application.
8. Pursuant to cl 18 of the WLEP, the council is required to take into account, in the determination of any development application, how the excavation of land may temporarily or permanently affect the heritage significance of any heritage item. Furthermore, at its meeting on 8 September 1997, the council adopted a policy that requires the submission of a geotechnical assessment by a practising and qualified engineer in conjunction with development applications for all developments where significant excavation is proposed. The same policy requires, in instances where the development proposes excavation to a depth greater than two metres or where proximity of the excavation to neighbouring properties and the particular site circumstances would deem it necessary, that the stormwater drainage details be submitted, including an assessment prepared by a qualified hydrological engineer on the likely impact of the development on existing groundwater flows on the subject site and adjoining land and the measures proposed to ameliorate any such impacts.
9. The applicant complains that neither a geotechnical assessment nor stormwater drainage details were submitted with the development application as required by the policy. Information in respect of those matters was not furnished until the present applicant, as an objector, raised concerns by submitting reports made by his own consultant. Furthermore, it is the applicant’s case, that the council relied on assumptions in an earlier report prepared by consultants to the second respondent to understand the sub surface properties of the subject land. The earlier report was prepared to support another development application.
10. It is alleged there was no examination of the impacts on the heritage items. Even when reports were furnished, the design of temporary retaining structures was left to contractors engaged to carry out the work.
11. Moreover, the consequence of the additional material provided was, so the applicant alleges, that the development could not be constructed in the manner or location indicated in the architectural drawings lodged in support of the development application. It is claimed that the council did not, at any time, understand this consequence.
12. In any event, the later reports were not referred to the council’s heritage officer for assessment. The reports by the council’s Technical Services Division did no more than repeat what had been advised to them by the applicant’s geotechnical engineer. The material submitted is not analysed and the council appears to have relied solely on the expertise of the second respondent’s consultant.
13. According to the applicant, the question, therefore, is whether the council had an understanding of the matters before it and appreciated the significance of the decision to be made in a geotechnical and hydrological context.
14. After due consideration of materials submitted, the nature of the council’s consideration and the manner in which the council elected to deal with this matter, Mr Craig says it cannot be claimed that the council gave real and genuine consideration to these particular issues. Alternatively, in so far as it did, it failed to have regard to the changes that would be consequent upon the implementation of the changes proposed by the engineer.
15. Furthermore, Mr Craig submits, the imposition of the conditions by the council on the development consent merely indicates the lack of understanding in this respect. There is, according to Mr Craig, a clear tension (if not blatant inconsistency) between the plans expressly approved in condition 1 of the consent and those which would result as a consequence of conditions 66 and 58.
16. Pursuant to condition 50, the council requires the submission of a full geotechnical report to ensure that the structural integrity of the proposal and neighbouring buildings will be maintained. The condition also requires a report on the hydrogeology of the site and its environs. It requires the latter report to examine the likely impact of the development on existing ground water flows on and below the site and adjoining properties and to demonstrate that the development will not adversely affect the natural environments and that adequate levels of health and amenities to the occupants of neighbouring buildings and the locality will be maintained. The applicant contends that the imposition of condition 50 recognises the failure of the council to have the material before it that it had on so many occasions previously indicated was relevant and fundamental to a determination of the matter.
Policy of approval
18. Mr Hill gave evidence of conversations on 10 March 2001 and 12 March 2001 as follows:-17. The applicant relies upon two conversations between the applicant himself and the Mayor to show that when the latter exercised a casting vote to approve the development application, he believed there was a policy of the council that he was required to approve where an applicant for development consent had a better than 50 per cent chance of success on appeal to the Land and Environment Court.
- On or about 10 March 2001, I spoke by telephone with the Mayor, Councillor Dawson. At that time, Councillor Dawson said words to the effect that:
- “I don’t want to hear any fucking legalese from you people. I am married to a lawyer. Espie would win in the Land and Environment Court. That’s a finish to it.”
On or about 12 March 2001, I met in the Council chamber with the Mayor, Councillor Dawson, in the company of my brother, Mr David Hill. At that time Mr David Hill who was acquainted with the Mayor said words to the effect that:
Mayor, this is crook.”
“I know it doesn’t look particularly good and we will take another look but if we don’t approve it he will win in the Courts. The Council has a policy of only fighting cases if we have a better than 50/50 chance of winning and we didn’t think we had that here.”Councillor Dawson then said words to the effect that:
20. The applicant makes the following points in respect of this evidence:-
19. It is pertinent to remember, at this point, that the development application was not determined until 12 June 2001.
(a) to the extent that the Mayor took such matters into account they were impermissible considerations (see Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1998) 98 LGERA 335 at 351);
(b) the discretion vested in the council pursuant to s 79C of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) is constrained by relevant planning considerations (see Carstens v Pittwater Council (1999) 111 LGERA 1 at 12 ([25]);
(c) in the alternative, the council constrained the exercise of its discretion by reference to a misapprehension that such a policy existed where the council, in fact, had no policy;
(e) if the Mayor believed in the existence of such a policy, the Court is entitled to infer that it was shared by the balance of the councillors;(d) further in the alternative, the belief that if development consent was refused by the council, an appeal to the Land and Environment Court would be successful is an irrelevant consideration;
- (f) when exercising his casting vote the Mayor, in the circumstances, represented the controlling mind of the council and his vote was determinative of the application, thereby affecting the whole of the decision-making process (distinguish the circumstances in Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 at 335 where the Court of Appeal held that the Court is not entitled to consider the vote of a single councillor).
21. Mr Craig claims the evidence demonstrates that the decision to approve the development application at all or absent conditions dealing with the issue of public safety in respect of traffic, was manifestly unreasonable because:-
Traffic
(b) absent some safeguards, there is a risk of vehicles colliding;(a) there is an unresolved issue of the safety of pedestrians, road users, adjoining residential premises and uses of the proposed garage;
- (c) the equivocation of opinion by council officers in respect of traffic and access matters, including an incorrect conclusion about the adequacy of sight lines;
- (d) the efficacy of material before the council was either inadequate or in error; and
- (e) the “absurdity” and “irrationality” of the decision is exemplified by the failure of the council to impose any conditions addressing traffic safety.
Cumulative consequences of errors
21. The applicant alleges that the cumulative, or aggravation of errors, misunderstandings or irrationalities on the part of the council, means that the decision to grant consent is invalid on the ground of Wednesbury unreasonableness.
22. The arguments put forward on behalf of the council as first respondent in respect of the issue that the decision of the council was manifestly unreasonable may be summarised from its written submissions as follows:-The first respondent’s argument
(a) the consent authority to whom Parliament has entrusted the decision-making power is left with a very wide discretion which cannot be effectively reviewed by the courts;
(b) Parliament reposed the power to choose among courses of actions upon which reasonable minds may differ, in the council and not the Court;
(c) the threshold of perversity required before a court can find that a decision is manifestly unreasonable is high;
(e) it cannot be said to be manifestly unreasonable for the council to have made findings and the ultimate decision on evidence that supported both the findings and the ultimate decision;(d) the Court can only have regard to the material that was before the council at the time it made its decision. The unreasonableness of the decision must be manifest having regard to its terms and the material upon which it was based;
- (f) the applicant’s challenge is to the council’s ultimate finding of fact, that the development was sufficiently meritorious to be approved on conditions;
- (g) the applicant cannot point to any evidence, documentary or oral, which establishes that the council made primary findings of fact that the development would have significant impact on traffic safety or on the other matters alleged by the applicant;
- (h) mitigation would only be required if the council had made the primary finding of fact that the development would have significant impacts on traffic safety, but there is no evidence that the council so found;
- (i) even if the council did not find that the development would not have a significant impact on traffic safety or on the other matters alleged by the applicant and such a finding was wrong, the decision would not be invalid by reason of that factual error;
- (j) the only way an incorrect finding of fact could result in a reviewable error would be if it was manifestly unreasonable and it was an integral part of the reasoning process leading to the ultimate decision to grant consent, with the consequence that the ultimate decision becomes manifestly unreasonable;
- (k) what is clear is that there was an evidentiary foundation for a primary finding of fact that the development would not have a significant impact on traffic safety, or any of the other matters alleged by the applicant. No doubt, there was also an evidentiary foundation for a contrary opinion if the council had wished to so conclude. But this simply means that different findings were reasonably available to the council. The choice of one of the available findings cannot be manifestly unreasonable;
- (l) it can readily be assumed that the documentary record does not represent the totality of the council’s actual or constructive consideration of the relevant matters. Councils do not make decisions in a vacuum. They have local knowledge and general knowledge which is available to inform them on issues which they have to consider; and
- (m) the council conducted one of its meetings on site. They saw the road and the location of the proposed driveway and were able to consider for themselves the evidence in relation to traffic safety.
24. If it ultimately transpires that the development cannot be carried out in the manner or in the location contemplated by the approved application and the conditions of consent, then the first respondent says that it will be necessary for the second respondent to make an application under s 96 of the EP&A Act to modify the consent before proceeding with the development. In the meantime, the second respondent, as the holder of the development consent, will be required to construct a building precisely in the location shown in the architectural drawings. In construing the consent as it stands it is not permissible to refer to extraneous documents and evidence upon which the applicant relies for his contention that the development cannot be constructed in the manner or location indicated in the architectural drawings lodged in support of the development application.
25. The failure to comply with the 1997 council policy is not, according to the council, itself a relevant matter as the details referred to in the policy were not relevant matters at law which the council was bound to take into account. Furthermore, the council was free at any time to determine to change or abandon the policy generally or to leave the policy standing but to depart from it or not as it saw fit in each particular case. In this case, the council did not require strict compliance with the policy. Instead, the council resolved at its site meeting on 21 March 2001 that the applicant submit hydrological and geotechnical reports to be assessed by its Technical Services Division. In any event, the obligations imposed by the policy, if it applied, were on the applicant and not the council.
26. In lodging a geotechnical assessment by a practicing and qualified engineer, even though not at the time the development application was lodged, the applicant did substantially comply with the requirements of the policy. The council contends that condition 50 is merely a requirement designed to achieve the purpose of specifying performance standards. In those circumstances there has been no failure by the council to consider relevant matters in relation to the policy of the council.
28. Finally, on this point Mr Preston SC submits, on behalf of the council, that having regard to:-27. In so far as it is alleged that the council had a policy or that the Mayor had a belief that a development application should be refused if there was less than a 50 per cent chance of upholding that decision in this Court, the council says that the fact of the existence of such a policy has not been established. Even if the Mayor did hold such a belief, the applicant has not established that any other councillor shared that belief. Moreover, the council submits that the applicant has not established that even the Mayor still maintained that belief (which he expressed on 12 March 2001) when the final determination was made on 12 June 2001. Accordingly, the council says there is no evidentiary basis for the Court to find that the Mayor still had the belief on 12 June 2001 or that he took into account that belief at all or, if so, the belief was a material factor in his voting. Furthermore, the decision of the collegiate body cannot be invalidated by showing only that an individual councillor took into account an irrelevant matter ( Parramatta v Hale ).
(a) the objects of the Act in s. 5 and the breadth of matters able to be considered under s. 79C of the Act;
(b) the faculty for an applicant for development consent to appeal on the merits to the Land and Environment Court from a decision of the Council to refuse consent;
(b) the width of the powers and functions of the Court on hearing and disposing of such an appeal;
(e) the possibility of an adverse cost order if the Council is unsuccessful on the appeal,(d) the substantial costs to councils involved with contesting appeals in the Court (necessarily funded by public money); and
- it cannot be said the belief of the Mayor was a matter which he was bound by law to ignore. The decision by this Court in Noroton Holdings is distinguished by Mr Preston on the basis that the earlier case involved a conflict of interest arising out of the council’s differing roles of consent authority under the EP&A Act and as a party to a private contract.
Whether the actions of the council in determining the development application were manifestly unreasonable
29. The primary difficulty faced by the applicant is that there was in fact material before the council in the form of reports, submissions and comments that addressed the hydrological and geotechnical issues. The absence of direct evidence of analysis of the material in a critical way does not necessarily lead to the conclusion that the council did not appreciate the real impacts of the proposal. The fact that no council officer attempted to reconcile the expert material submitted by the applicant in these proceedings with the material submitted on behalf of the second respondent does not bring about an adverse result so far as the council’s consideration of the proposal is concerned. The fact that the council accepts one view or other over another, even if it is shown ultimately that it was incorrect to do so, does not lead to the conclusion that the decision was manifestly unreasonable in a legal sense. Moreover, the submission by the applicant that neither the council nor its own officers had any expertise in respect of hydrological or geotechnical issues does not thereby deprive it of the capacity to prefer the opinion of one expert over the other. It is not for the Court to re-examine this material upon judicial review and to form its own opinion as to the correctness of the decision made. This is, in effect, what the applicant is asking the Court to do. In other words, the applicant’s submission, if accepted, would have the Court re-determine the application on the basis of the material before the council. In order for the Court to determine that the decision of the council was manifestly unreasonable by preferring the opinion of the second respondent’s experts to the opinion of the applicant’s experts clearly amounts to re-determination.
30. The same position enures in relation to the traffic issue, more or less to the same extent as the issues relating to hydrological and geotechnical matters. The council had before it material supporting the approval of the proposal notwithstanding the alleged adverse traffic impacts identified by the applicant’s expert, Christopher Hallam, its own traffic planner, its own Manager, Infrastructure and the local traffic committee. Even if the Court accepts that the circumstances were not ideal, and there was evidence before it to that effect, it was nevertheless open for the council to rely on the material in support of the application and to approve it. Furthermore, the evidence shows that the councillors visited the site and the Court is entitled to assume that they had a rudimentary understanding of the features of the local area and the characteristics of the location from their own local knowledge. The Court does not accept Mr Craig’s submission that the “absurdity” and “irrationality” of the decision to approve the proposal is exemplified by the failure of the council to impose any conditions addressing traffic safety. There is no evidence to show that the council determined that the development would have such a significant impact on traffic safety or indeed the others matters alleged. In the absence of evidence supporting such a finding the applicant has a difficult task to show that the unreasonableness of the decision is manifest. There was material before it that entitled the council to reach a conclusion favourable to the second respondents.
31. Mr Preston is right to say, as a matter of general principle, that if the conditions of approval are such that the position of the building must be moved or that development comprising the building will take place outside the designated boundaries of the excised lot then that difficultly must be addressed either by way of an application to modify the proposal or by a new development application or even by abandoning the proposal altogether.
32. Nevertheless, it is appropriate for the Court to construe the consent as a whole to determine whether the combined effect of conditions 66 and 58 will be as Mr Craig contends.
33. Condition 1 requires that the development must be carried out in accordance with approved architectural plans “except where amended by the following conditions” .
34. Inter alia, condition 58 provides that excavation be undertaken in accordance with “Outline of Excavation Procedure” prepared by Tony Phillips Consulting Pty Ltd, dated 19 April 2001.
35. The report of 19 April 2001 refers to an earlier report of 29 March 2001 for technical details. Condition 66 requires that permanent sub-soil drainage be constructed in accordance with that earlier report.
36. Anthony Colenbrander is a Principal Geotechnical Engineer with GHD–Longmac Pty Ltd, consulting engineers. He has given evidence on behalf of the applicant that, in his opinion, as the temporary works design in the earlier Phillips report shows a temporary retaining wall located 1.2 metres behind the outer wall of the proposed permanent structure then (because the approved architectural plan shows only a 450 millimetre separation between the proposed structure and the southern boundary) it would be necessary to move the building approximately 750 millimetres to the north. The later Phillips report merely states that the house will be constructed leaving a “slot” between it and the face of the excavation so that waterproofing can be applied to the outside of its underground wall. The Court is not satisfied notwithstanding the evidence of Mr Colenbrander that the consequence of complying with conditions 66 and 58 will necessarily require the building to be re-located. The conditions require only that the works be carried out “in accordance with” the Phillips report and outline of procedure. After all, the Court is dealing with, in this case, the application of conditions of development consent. The conditions incorporate a report and outline, neither of which are in strict terms in the sense that they can be applied to the letter. In the circumstances and in context it is appropriate to regard the obligations created by the two conditions to require that the excavation and drainage work be undertaken in substantial accordance or generally in accordance with the Phillips specification rather than strictly in accordance with the documents referred to.
37. By contrast, the imperative nature of condition 1 is emphasised by use of the word “must” . Moreover, condition 66 reflects a consideration of the potential for external impact of the proposed development in terms of drainage whereby it is required that all run-off from the site, seepage water and stormwater run-off must drain to the council’s in-ground drainage network.
38. There is no evidence to demonstrate that any councillor, other than the Mayor, has ever alluded to the so-called policy regarding an approval in the event that the council forms the view that there is a likelihood of success on an appeal. On one view, it could be arguable that, such an approach indicates that the council carried out an evaluation of the proposal to the extent necessary for it to formulate an expectation that the applicant for development consent will be successful on appeal in this Court. In the circumstances of this case, however, there is no evidence that there was such a policy, apart from the remarks made by the Mayor. In any event, the remarks were made at a time significantly before the actual decision was made. There was no contemporaneous evidence that the Mayor maintained the approach expressed in March when the application was determined in June.
40. Condition 50 is a self-executing provision whereby the development cannot proceed unless issues relating to the integrity of adjoining structures and the hydrogeology on the site are resolved to the satisfaction of the council. If the geotechnical engineers report does not demonstrate that:-39. The remaining issue is whether or not the imposition of condition 50 recognised the failure of the council to have regard to the potential off-side impacts and geotechnical matters, they being matters that it had on other occasions indicated were relevant and fundamental to a determination to a development consent involving excavation. The applicant submits that these considerations were clearly relevant to the council in the light of cl 18 of the WLEP, the history of a prior landslip at the site, council’s own policy and the provisions of s 79C(1)(b) and (c) of the EP&A Act
- …excavation, backfilling and construction, including temporary works during construction, will not affect the structural integrity of neighbouring buildings or the structural stability of neighbouring public land, property, or services…
- then no construction certificate will be forthcoming. Likewise, in the absence of a demonstration by an appropriately qualified and practicing geotechnical/hydrological engineer that “the development will not adversely affect the natural environments and that adequate levels of health and amenity to the occupants of neighbouring buildings and the locality will be maintained” a construction certificate will not be issued.
42. Mason J explained the limited role of the Court on a judicial review in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1985-1986] 162 CLR 24 at 40 - 41 as follows:-
41. Condition 50 shows that the council specifically took into account the prospect of off-site impacts and geotechnical matters and took appropriate steps to ensure they would not occur. It is not necessary for the detail to be addressed at the point of determination of the application if a condition can be drafted to effectively deal with the issues that might arise.
- The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own discretion for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.
- The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.
- A normal prerequisite to taking a matter into consideration is that the members of the council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics that they are required to take into consideration.
45. Einfeld J also dealt with the issues that arise in this case when he stated in Mendoza v Minister for Immigration, Local Government and Ethnic Affairs and Others (1991) 31 FCR 405 at 420 as follows:-
- The concept is that all relevant matters must be taken into consideration in a real and conscientious way. Moreover, in
Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184, Toohey J, when a member of this Court, said:
- “In many cases it will be clear whether or not the decision-maker has taken a relevant consideration into account. That is not to say that the mere assertion by a decision-maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense…”
- Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale (at 335-336, 339); King v Great Lakes Shire Council (at 384); Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-375).
47. After anxious consideration the Court is not prepared to draw an inference that the council failed to consider relevant factors as alleged by the applicant. The material before the council in respect of the traffic safety issue and the imposition of conditions together with the material before the council in respect of other matters satisfies the Court that there was proper, genuine and realistic consideration of the matters that it was required to take into account.
48. The decision made by the council was clearly open to it and cannot be said to fall into the category of being so unreasonable that it should never have reached the conclusion it did. The determination fell within the bounds of the discretion entrusted to it as the decision- maker.
49. The applicant’s claim fails in all respects.
50. Although the Court, in such a case as the present, might reasonably exercise its discretion in relation to costs in favour of the successful party there has been no formal argument on this issue. It is appropriate, therefore, that the question of cost be reserved.
51. The formal orders of the Court are as follows:-Orders
- (1) Application dismissed.
- (2) Costs reserved.
- (3) The exhibits may be returned.
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