Hortis v Manly Council

Land and Environment Court

of New South Wales

CITATION:

Hortis v Manly Council & Anor [1999] NSWLEC 151

PARTIES

APPLICANT
Edison Hortis

FIRST RESPONDENT
Manly Council
SECOND RESPONDENT
Gregory R Mailman

NUMBER:

40188 of 1998

CORAM:

Sheahan J

KEY ISSUES:

Judicial Review :- bias, construction and interpretation, discretion, legitimate expectation, manifest unreasonableness, relevant/irrelevant considerations

LEGISLATION CITED:

Environmental Planning & Assessment Act 1979
Land & Environment Court Act 1979
Local Government Act 1993
Manly Local Environmental Plan 1988
Manly Development Control Plan for the Residential Zone 1986

DATES OF HEARING:

02/15/1999; 02/16/1999; 02/17/1999; 03/16/1999; 03/31/1999

DATE OF JUDGMENT DELIVERY:

07/02/1999

LEGAL REPRESENTATIVES:

APPLICANT
SOLICITORS
Mr N Hemmings QC of
Allen Allen & Hemsley
FIRST RESPONDENT
SOLICITORS
Mr P Jackson of Pike Pike &Fenwick
SECOND RESPONDENT
Mr A J J Thompson, Barrister
SOLICITORS
Mr J Doyle of Eakin McCaffery Cox

JUDGMENT:

Contents

HORTIS v MANLY COUNCIL & ANOR

Paragraphs

(1) The nature of these proceedings 1-9

(2) The parties and the subject site 10-13

(3) The development mailman is seeking 14-15

(4) The relief Hortis is seeking 16-18

(5) The Respondents’ position 19

(6) The relevant instruments 20

(7) Relevant provisions of the LEP 21-26

(8) Relevant provisions of the DCP 27-30

(9) Relevant conditions of approval 31

(10) What does Hortis allege? 32-35

(11) The challenges in detail

11.1 Challenge 1: Council’s administrative arrangements 36-39

11.2 Challenge 2: Lack of power to approve substantially the same development 40-60

11.3 Challenge 3: Earlier concerns not addressed 61-62

11.3.1 The Roseth judgment on Application 1 63-64

11.3.2 The Bull judgment on Application 2 65-76

11.3.3 Expert Opinion? 77-80

11.3.4 Hortis’s Contentions 81

11.3.5 Council’s Contentions 82-83

11.3.6 Mailman’s Contentions 84

11.3.7 Conclusion on Challenge 3 85-87

11.4 Challenge 4: Contraventions of the DCP 88-100

11.4.1 The sub-challenges in detail 100

11.4.2 Conclusion on Challenge 4 101-102

11.5 Challenge 5: Irrelevant matters considered 103-104

11.5.1 The sub-challenges in detail 104

11.5.2 Conclusion on Challenge 5 105

11.6 Challenge 6:

Inadequate consideration of relevant matters 106-109

11.6.1 The sub-challenges in detail 109

11.6.2 Conclusion on Challenge 6 110

11.7 Challenge 7: Deferment of Relevant Considerations 111-117

11.7.1 The sub-challenges in detail 117

11.7.2 Conclusion on Challenge 7 118

11.8 Challenge 8: Consideration of LEP Clauses 10 and 17 119-122

11.8.1 Currey’s case 123-147

11.8.2 Clifford’s case 148-153

11.8.3 Franklins’ case 154-160

11.8.4 The Relevant Question for the Court in this Challenge 161-163

11.8.5 Hortis’s submissions 164

11.8.6 Council’s submissions 165

11.8.7 Mailman’s position 166

11.8.8 Did Council consider the pre-conditions? 167-171

11.8.9 Conclusion on Challenge 8 172-173

11.9 Challenge 9: Unfairness 174-175

11.10 Challenge 10: Unreasonableness 176-179

(12) Should relief be granted - Discretion? 180-181

(13) Conclusion 182-183

(14) Orders 184

IN THE LAND AND Matter No: 40188 of 1998

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 2 July 1999

EDISON HORTIS

Applicant

MANLY COUNCIL

First Respondent

GREGORY R MAILMAN

Second Respondent

JUDGMENT

(1) The nature of these proceedings

1. In this case Mr Edison Hortis launched a multi-pronged attack on Manly Council’s decision to grant relevant consent(s) in regard to the property next-door to his in Balgowlah. The respondents are the Council and the representative of the owner of that next-door property, and they adduced evidence designed to convince the court that the Council “ knew what it was doing ” and acted appropriately in granting those consents.

2. The proceedings are Class 4 judicial review proceedings and not merit review proceedings in Class 1 of the court’s jurisdiction. They were commenced in October 1998 and were heard on 15, 16, 17 February and 16 & 31 March 1999.

3. It is often difficult in matters of this type to steer the debate towards the basic issues relevant to judicial review, and away from questions of merit. [See, eg, discussion by Pearlman J in Kolback Environmental Services Ltd v Auburn Council & Anor , (1997) 98 LGERA 367 at 369 - 370. See also the High Court’s decisions in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, especially per Mason CJ (with whom Brennan J agreed) at 355 - 6; and the NSW Court of Appeal’s decisions in Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457; Londish v Knox Grammar School & Ors (1997) 97 LGERA 1; and Mittagong Mushrooms Pty Ltd & Anor v Narrambulla Action Group Inc & Anor (1998) 97 LGERA 333].

4. In the factual situation in this matter, ULV Pty Ltd v Scott & Ors (1990) 69 LGERA 212 is of some relevance and guidance. Priestley JA, with whom Kirby P and Samuels JA agreed, cited with approval the oft quoted passages from the judgment of Mason J in Peko-Wallsend at 40 - 42), and discussed the difference between merit appeals and judicial review matters (see ULV at 221 - 230).

5. The decision in ULV calls for extreme caution in the admission of expert planning evidence when the court is, as here, considering the legality of a development consent. Priestley JA was firm in the view that the opinions of the planner, as to whether or not the consent should have been granted, are immaterial to the court’s consideration of the question of legality.

6. The Court of Appeal held that expert town planning evidence should not have been admitted and should not have been accepted as an opinion which could be adopted independently of the trial judge’s own opinion. Although the Council’s decision was one in regard to which reasonable minds might come to different conclusions, it had not been shown it was so unreasonable that no reasonable Council could have come to it, in the “Wednesbury” sense, (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Peko-Wallsend ).

7. In so far, if at all, as the Wednesbury test of administrative unreasonableness might have been stated differently elsewhere, ULV indicates that this Court should follow the reasoning in Peko-Wallsend .

8. In riding the fine line between merits and judicial review, the questions of admissibility of expert evidence, and the qualifications of a witness to be an expert, are both questions for determination by the trial judge. It is very difficult when an expert gives evidence “ as to what a Council acting reasonably ought to have done in the discharge of its functions ”. The High Court has held that the opinion of witnesses possessing particular skills or expertise is admissible wherever the subject matter of an inquiry is such that inexperienced persons are unlikely to be capable of forming a correct judgment without their assistance ( Clark v Ryan (1960) 103 CLR 486).

9. Before I deal with all the complexities that have arisen in this case, I will now set out the relevant background information.

(2) The parties and the subject site

10. The applicants to the proceedings, Edison Hortis, and his wife, Dionysia (“Hortis”), own the property known as No.23 Beatty Street, Balgowlah (“No.23”), a block of land which is relatively flat, on which they have erected a two-storey dwelling, approximately 2 metres from the boundary separating No.23 from No.21 Beatty Street (“No.21”).

11. The first respondent is Manly Council (“Council”), which has been, and remains, the relevant consent authority for the purpose of these proceedings.

12. The second respondent represents the owner (“Mailman”) of No.21, which is the block immediately south of, but “ uphill ” from, No.23. Within the boundary of No.21, adjacent to its boundary with No.23, there is “ a steeply sloping vegetated rock outcrop ”, which Mr Ingham observes is “ the only part of the site still in its natural state ”, and which Council acknowledges is a very “ sensitive ” part of the property.

13. The photographic evidence relevantly indicates that the rocky outcrop between the two residences is, in fact, visible from the public domain and possibly also from the nearest waterway.

(3) The development mailman is seeking

14. Mailman has been striving for some time to obtain development consent for the construction of a swimming pool and related recreation and entertainment facilities, somewhat “ suspended ” over the rocky outcrop.

15. He has made four relevant “ Applications ” to Council:

(i) “ Application 1 ” (DA 400/95 plus BA 450/95) was lodged on 31 October 1995 , and refused by Council in May 1996.

An appeal to this court against the refusal was dismissed by Assessor Roseth on 17 October 1996. (See Exhibit C8 and plan GA 01B, Exhibit C1 ).
Key extracts from Dr Roseth’s judgment are set out below (see par 63-64).

(ii) “ Application 2 ” (DA 499/96 plus BA 621/96) was lodged on 24 December 1996 , and refused in February 1997.

An appeal to this court against the refusal was dismissed by Assessor Bull on 19 May 1997 (see Exhibit C9 , and plan GA 01E, Exhibit C2 ).
Key extracts from Dr Bull’s judgment are set out below (see par 65-76).

(iii) “ Application 3 ” (DA 72/98 plus BA 90/98) was lodged on 13 March 1998 , and Hortis was notified on 8 April 1998.

Allen Allen & Hemsley submitted objections on Hortis’ behalf on 21 April 1998. Inspections, etc. were carried out by Council in June 1998, and the Council then approved the application (see Exhibits C3 and C10 , including plan GA 01G) on 29 June 1998, on certain conditions (some of which are set out below in par 31 below).

(iv) “ Application 4 ” (DA 0014/99) sought a modification of the consent given to DA 72/98. It was lodged on 4 August 1998 , and notified to Hortis on 13 August 1998. Submissions were made on Hortis’ behalf by an architect, Bird, on 26 August 1998. The modification was approved on 21 September 1998 (see Exhibits C5 & C7 , and plan GA 01H). It nullified the impact of a condition which had been imposed on DA 72/98, requiring a 4 metre setback. The approval of the modification has reduced that “ stepping back ” to a minimum of 2.6 metres.

(4) The Relief Hortis is seeking

16. The relief sought by Hortis in his Class 4 application dated 29 September, 1998 is as follows:

1. A declaration that the Development Consent issued on 2 July 1998 by the First Respondent to the Second Respondent is void and of no effect.
2. A declaration that the Building Approval issued on 2 July 1998 by the First Respondent to the Second Respondent is void and of no effect.
3. A declaration that the modification proposed by way of Section 102 of the Environmental Planning and Assessment Act 1979 issued on 2 July 1998 is void and of no effect.
4. Costs

17. (In respect of prayer 3, the relevant date would appear to be 21 September 1998, and not 2 July 1998).

18. The case has been considered on the basis of detailed amended points of claim (“POC”) to which lengthy references will be made later in this judgment.

(5) The respondents’ position

19. The respondents have filed points of defence (“POD”) denying the fundamental matters in the POC, and the second respondent asks the court to exercise its discretion not to make the orders sought, on the basis that before it considered applications 3 and 4, the Council (POD par 15) “ had obtained sufficient information and detail to allow:

(i) an adequate assessment of the issues raised in those applications; and/or

(ii) a lawful determination of those applications under the Environmental Planning & Assessment Act 1979 and the Local Government Act 1993.”

(6) The Relevant Instruments

20. Both properties are:

(a) within the “ Residential 2 ” zone under Manly Local Environmental Plan 1998 (“the LEP ”) ( Exhibit H1 );
(b) within the designated “ Foreshore Scenic Protection Area ” defined in the LEP; and
(c) affected by “ Manly Development Control Plan for the Residential Zone 1986 (Amendment 3) ” (“the DCP ”) ( Exhibit H2 ), under which they are within sub-zone 7, which is the area of lowest density envisaged by the DCP.

(7) Relevant provisions of the LEP

21. Clause 3 sets out the “ Aims and objectives ” of the plan.

22. Sub-clause 3(1) sets out the general aims and objectives of the plan, including the following:

…

(b) to give the council greater responsibility for environmental planning by creating only broad controls in this plan and leaving more detailed local environmental planning provisions in the development control plans provided by the council;

…

(g) to conserve and protect Aboriginal relics and items of the environmental heritage being buildings, works, relics or places of historic, scientific, cultural, social, archaeological, traditional, architectural, natural or aesthetic significance;

…

(i) to preserve and enhance the amenity of defined environmentally sensitive ares, public places and areas visible from public places or from navigable waters around the Manly Council area;

(j) to ensure that new development does not detract from the very special visual quality of the Manly Council area;

…

23. Sub-clause 3(2) provides for the following particular aims:

(a) to divide land into the zones referred to in Clause 9 and to achieve in each of those zones the objectives specified for the land in Clause 10; and
(b) to enable the council to make development control plans regulating the carrying out of development in any zone -

(i) by restricting the carrying out of that development to a specified area within the zone; or
(ii) by fixing standards or specifying requirements for that development.

24. Clause 4 sets out the “Policies and strategies” of the plan under seven relevant sub-groups. Those which appear relevant to this particular project include:

(a) in relation to residential and community life -
…
(v) to provide for a broad range of housing types to cater for all socio-economic groups without adverse effects on the character and amenity of the Manly Council area;
…
(viii) to encourage revitalisation, rehabilitation and redevelopment of residential areas while ensuring that dwelling form, including alterations and additions, does not degrade the amenity of surrounding residences or the aesthetic quality of the Manly Council area;
…
(d) in relation to open space and recreation -
(i) to enhance the range of open space types and recreational opportunities while increasing the total environmental quality of the Manly Council area;
…
(e) in relation to landscape -
(i) to protect and enhance the natural and cultural landscapes throughout the Manly Council area;
(ii) to preserve the natural landscape near the water’s edge while allowing recreational uses to continue; and
(iii) to upgrade the environment of the Manly Council area through the appropriate management, conservation and reinstatement of the existing pattern of vegetation;
(f) in relation to environmental heritage -
(i) to promote the Manly Council area’s environmental heritage and celebrate its diverse environment, including architecture, Aboriginal archaeology, industrial archaeology and landscape;
…

25. Clause 10 sets out the Zone objectives and development control table:

(1) The objectives of a zone are set out in the Table to this clause under the heading ‘Objectives of zone’ appearing in the matter relating to the zone.
(2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which -
(a) development may be carried out without development consent;
(b) development may be carried out only with development consent; and
(c) development is prohibited.
are specified under the headings ‘Without development consent’ , ‘Only with development consent’ and ‘Prohibited’ , respectively, appearing in the matter relating to the zone.
(3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

26. Clause 17 deals with the visual and aesthetic protection of certain land:

The council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area.

(8) Relevant provisions of the DCP

27. The DCP has the aims and objectives which are set out in Section E (pp 5-6) and the relevant “ specific aims and objectives ” for the purposes of this matter are as follows:

1. To provide development and performance standards to reduce the impact of new development on the privacy, sunlight and views of the adjoining residents.
2. To encourage innovative and attractive design, with privacy for future residents within the development and access to sunlight by setting appropriate development and performance standards.
…
4. To introduce height and density controls to encourage the provision of housing which is compatible with the existing character of the neighbourhood, while still providing opportunities for development which will meet the State Government requirements for urban containment .
5. To provide floor space ratio controls which will provide for flexibility of design within the parameters set by the other development standards of the development control plan.
6. To orientate residential buildings in a way that does not simply locate them in a linear configuration down the block.
7. To provide open space to each dwelling sufficient for recreational and landscaped open space.
8. To encourage new development to enhance the existing streetscape.
9. To provide for off-street parking relative to dwelling size and type.
…
11. To control height by relating it to the crown of the road and to control encroachments on local road widenings in specific parts of the Municipality.
12. To ensure protection of environmentally sensitive areas, including National Parks and certain open space areas.

28. The DCP has a comprehensive section on “ Design Guidelines ” with the theme “good design involves preserving and enhancing the best qualities of Manly and ensuring that the amenity of present and future residents is maintained and improved”. When siting and designing new buildings proponents are invited to look at “both the local streetscape as well as the specific site conditions to achieve an harmonious and well-mannered new building” . The Design Guidelines are set out in three broad groupings:

1. Streetscape and locality.
2. Sunlight, privacy and views.
3. Building design as to height, bulk, roofscape, materials, etc. “ in keeping with the topography, street and locality which it fits into ”.

29. There are specific clauses in the DCP (cl 3.3) for “ Steeply Sloping Sites ” and (cl 3.4) for “ Lower Density Areas ”.

30. Part 2 of the DCP deals with “ Standards ”, and the court’s attention was drawn specifically to cl 3 “ Floor Space Ratio ”, cl 5 “ Setback and Building Line ”, cl 6 “ Landscaped Open Space ”, and cl 7 “ Landscaping and Site Treatment ”.

(9) Relevant Conditions of Approval

31. The conditions attached to approval of Application 3, as modified by Council’s acceptance of the modification proposed by Application 4, relevantly included the following:

DA 72/98

· landscaping is to be carried out in accordance with the plan submitted in conjunction with the Building Application. All planting shall be maintained to the satisfaction of the Group Manager, Land Use Management. In this regard evidence by an agreement for the maintenance of all plants for a period of 12 months from the date of practical completion of the building is to be provided to the satisfaction of the Group Manager, Land Use Management (Condition 4);

· an effective visual screen of trees and shrubs indigenous to the area should be planted along the northern boundary of the land (Condition 5);

· no tree other than on land identified for the construction of buildings and works as shown on the building plan shall be felled, lopped, topped, ringbarked or otherwise wilfully destroyed or removed without the approval of Council (Condition 6);

· the front fence along the building alignment is not to exceed 1800mm above the existing finished ground level at any point (Condition 11);

· the pool viewing area being reduced in height by 300mm to Reduced levels (R.L’s) 44.86 with the plans being notated to the satisfaction of the Group Manager, Land Use Management prior to release of plans (Condition 12);

· details of the swimming pool fencing at pool deck level being submitted to Council prior to release of the building plans . Fencing in this area should be of an open nature to the satisfaction of the Group Manager, Land Use Management (Condition 13);

· the setback of the pool and pool surround from the northern boundary is to be 4 metres, with the plans to be notated prior to release (Condition 14);

· the structural adequacy of the existing retaining walls is to be certified by a structural engineer prior to the release of building plans (Condition 15).

BA 90/98

· all construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans (Condition 7);

· a certified copy of the Structural Engineer’s details in respect of all reinforced concrete, structural steel support construction and any proposed retaining walls shall be submitted to and approved by Council prior to any commencement of building works (Condition 8);

· all disturbed surfaces on the land resulting from the building works authorised by this approval shall be revegetated and stabilised to the satisfaction of the Group Manager, Land Use Management so as to prevent any erosion either on or adjacent to the land (Condition 13);

· the filter pump and motor shall be suitably housed and located as to reduce the possibility of noise nuisance to adjoining or nearby residents to the satisfaction of the Group Manager, Land Use Management (Condition 18);

· any exposed external face of the swimming pool walls shall be concealed by suitable backfilling and landscaping so as to conceal the pool structure and to create a ‘buffer zone’ between the proposed pool and neighbouring properties to the satisfaction of the Group Manager, Land Use Management (Condition 22);

· details of the proposed safety railing adjacent to the pool at pool deck level shall be submitted to Council for consideration prior to the commencement of works (Condition 25).

(10) What does Hortis allege?

32. Hortis does not deny Mailman’s right to have the facilities envisaged, but believes that they should be elsewhere on the site. He has put to Council, without success, alternative schemes for achieving Mailman’s objectives.

33. In his challenge to Council’s approval, however, Hortis, and Mr Hemmings on his behalf, have raised a great number of issues, many of them inter-related and cross-referenced, for the court’s consideration.

34. In essence, Hortis makes 10 major allegations/challenges or groups of allegations/challenges:

1. Council acted “ improperly ” in its management of the relevant approval process.
2. Council lacked power to approve Application 3 - and possibly Application 4 - because, it/they was/were for “ substantially the same ” development as had earlier been refused by:

(i) Council, and
(ii) the court

3. The earlier-expressed concerns about such a development were not addressed, either at all or adequately, in reaching the relevant decision(s) to grant approval(s).
4. The proposal, as finally approved and modified, breaches one or more requirements of the DCP.
5. Council took into account irrelevant considerations.
6. Council gave no, or no real, consideration to relevant matters.
7. Council deferred consideration of crucial matter(s).
8. Council failed to give proper consideration to the matters stipulated by cl 10 and/or cl 17 of the LEP.
9. Council’s decision was “ unfair ”.
10. Council’s decision was “ manifestly unreasonable ”.

35. Some of Hortis’s submissions may be dealt with summarily, but others are more complex and significant, requiring lengthy discussion. Given their complex inter-relationship all of them need to be considered. (References to passages of transcript will be shown as “T…L…”).

(11) The Challenges in detail

11.1 Challenge 1: Council’s administrative arrangements

36. Hortis views with suspicion the Council’s handling of Applications 3 and 4. In particular, he is concerned that the Council, in arranging the processing of Applications 3 and 4, assigned a “ new ” assessing officer (instead of Mr Rod Moore, who was involved in assessing Applications 1 and 2, and gave key evidence in the two appeals).

37. Mr Paul McCarthy was placed in charge of assessing Application 3, rather than Mr Moore, and Mr Hemmings seemed to submit that there was something sinister in that, seeing that Moore was a senior and experienced person who was “ replaced by a rookie ”. The evidence reveals that McCarthy commenced with Council only on 22 January 1998, but he and Moore were, in fact, of equal ranking. They were two of the three team leaders who are “ on the same level ” (T188Ll.27), within the Council’s Land Use Management Group, within which work is distributed by Ruth Holten, as the Group Leader responsible to a Divisional Manager, who in turn reports to the General Manager. The General Manager, Mr Wayne Collins, denied any role in the choice of team leader for any assessment process during oral evidence.

38. McCarthy conceded in cross-examination that he was “ surprised ” that Application 3 was assigned to him rather than to Moore, but that is as far as the evidence takes it.

39. I, therefore, cannot uphold challenge 1.

11.2 Challenge 2: Lack of power to approve substantially the same development

40. Hortis alleges that Applications 1, 2, 3 and 4 are all for substantially the same development.

41. All 4 applications include:

1. Some structure on the street level - originally a garage, now deleted in favour of a wall.
2. A pool with surrounding terrace viewing area.
3. Some poolside/recreational/entertainment amenities.

42. In the early applications it was thought that the amenities “ block ” proposed may have been capable of conversion for residential purposes, but that objection appears to have been resolved by the latest proposal, which comprises:

1. a masonry wall to enclose a children’s play area. The wall will be constructed along the street alignment and part of the northern boundary, and the applicant says it will be higher, wider and longer than the garage proposed in applications 1 and 2.
2. a pool and elevated wall, in generally the same location, orientation and size envisaged by Applications 1 and 2. (Assessor Bull had suggested that the pool be reoriented).
3. an elevated deck with an amenities building, in the north-western corner, being of similar floor area to the earlier proposals, but with a gazebo deleted.

43. The circumstances in which Application 3 was considered by the Council were altered only in so far as, following the unsuccessful appeal regarding Application 2, some Cypress Leighton Green pine trees were planted on No. 23, adjacent to its boundary with No.21 (Dr Bull was concerned about the difficulty of screening any development).

44. Hortis contends that Council made an error of law (see POC 23 ) in that the elements of the development in each of Applications 3 and 4 and (as I will later consider) its alleged contraventions of the LEP and DCP, were substantially the same as those (two) developments which were considered and rejected by this court.

45. Mr Hemmings submits that the modification decision (Application 4) took the proposal back to what Assessor Roseth had rejected (Application 1). However, because of the deletion of potential residential facilities, the Council rejects the suggestion that this amounts to such a reversion.

46. Hortis points out that McCarthy conceded, when assessing Application 3, that it was “ similar ”, and Council’s landscape architect said it was “ not substantially different ”. Mr Ingham in his expert evidence says that all four development concepts “ relate to substantially the same development ” and will cause substantially the same impacts upon No.23.

47. I do not see how any “ substantial sameness ” is, of itself, a ground for challenging the consent. It is a test applied in reviewing modification applications pursuant to s 102 of the Environmental Planning & Assessment Act 1979 (“EP&A Act”), and is, therefore, relevant to any examination of Application 4 in the context of Application 3. However, what Hortis is really arguing in the factual context of this matter is that:

(a) because the applications are similar, all the concerns which led to earlier refusals have not been adequately addressed in the approval; and
(b) that if the use of s 102 to approve Application 4 is found to be valid in any event, the effect of such modification is to increase the project’s similarity to those earlier refused.

48. The evidence establishes substantial similarities among the 4 applications, but not that the approval of Application 3, and its modification under Application 4, are “ substantially the same ” development as that proposed in Applications 1 and 2. The test laid down is important to s 102 cases such as Vacik Pty Ltd v Penrith City Council (Stein J, 24 February 1992, 10242 of 1991) and requires a close examination of the differences between old and new proposals to evaluate their significance. (The Court of Appeal has expressed its support for the principles espoused in Vacik - see North Sydney Council v Michael Standley & Associates Pty Ltd , CA40887/97, 12 May 1998).

49. There is no doubt that Mailman kept modifying his proposal until it received the Council’s approval. The differences he made have been shortly summarised in par 82 below. Their significance or otherwise is not, however, relevant to the validity of any consent.

50. The precise details of the proposal now enjoying consent will be analysed in more detail when I come to deal later in this judgment with the more specific attacks Hortis has made on the approval. Although Application 4 increased the degree of similarity between the proposal effectively/ultimately approved by the Council, and those it had earlier refused, I do NOT conclude, from the evidence, that the modified proposal emerging from Council’s approval of Application 4, and now enjoying consent, is/was beyond Council’s power.

51. Mr Hemmings also submits that consent authorities must uphold “ final ” decisions of the court, and so must not entertain “ repeat applications ”. In this regard he relies upon Turier v Nipote Pty Ltd & Anor (1983) 48 LGRA 20.

52. Turier dealt with the question of the relevance to a consent authority of any findings made by the court on “ substantially the same development ”, and stated that it is in the public interest that a consent authority should uphold a decision of the court, which is expressed in the Land & Environment Court Act 1979 (“the Court Act”) to be final for the purposes of that Act, or any other Act or instrument.

53. McClelland J observed in Turier that s 90 included a requirement to take into consideration “ the circumstances of the case and the public interest ”. The “ circumstances of the case ”, he said, included the court having upheld the decision of the Council to refuse consent. He referred to s 39 and s 56 of the Court Act and then commented (at 34) that it was:

… in the public interest that a consent authority should uphold a decision of this Court which is expressed in the … Court Act to be final for the purposes of that Act or any other Act or instrument.

54. Mr Hemmings submits that the evidence before the court in this matter does not disclose that there was any consideration by the Council of this principle, nor that Council acted accordingly.

55. Neither of the respondents addressed in their written submissions these alleged questions of principle arising from Turier . Mr Thompson, Counsel for Mailman, observed, in opening his oral submissions, that in Turier the applicant had re-submitted the same application but that in this case his client had submitted a different application.

56. Following the presentation of submissions by Mr Hemmings and Mr Jackson, and the opening of submissions by Mr Thompson, the case was adjourned for two weeks, after which Mr Thompson completed his submissions, with no further reference to Turier , and Mr Hemmings replied.

57. I think it is fair to infer from the way in which the case was argued on Hortis’ behalf, that Mr Hemmings did not strongly press his Turier point. In any event, I do not find the relevant degree of congruence between proposals upon which to invoke the Turier principles.

58. I should add, with great respect to McClelland J, that I have trouble accepting as a planning principle the basic premise of his decision in Turier . In the context of an argument on the principles of res judicata I said in Russo v Kogarah Municipal Council (10774 of 1997, 14 August 1998, at 30):

A person may legally and properly continue to make identical development applications to a Council, and the Council may consider them individually as if they were completely novel, but the Court does not and should not determine the same legal questions and issues over and over again.

59. I also respectfully adopt what was said on this subject by Bignold J in Miller v Sutherland Shire Council (10243/20126 of 1993, 8 July 1993 especially at 3 - 8), and I find no absence of power in the Council to consider and approve Application 3 or 4.

60. Challenge 2 must, therefore, fail.

11.3 Challenge 3: Earlier concerns not addressed

61. Hortis contends that the proposal as now approved by Council fails to address the “ failings ” identified in the earlier proposals, especially those dealt with in the judgments of Assessors Roseth and Bull.

62. It is appropriate, therefore, to set out at this point in this judgment relevant extracts from those judgments (being documents 12 and 19 respectively in Exhibit C4 ).

11.3.1 The Roseth judgment on Application 1

63. Mr Hortis was the sole objector to the first proposal , concerned particularly with the impact of the proposal on his property, especially on the outlook from his windows to the south from which he would expect to see mainly the underside of the proposed extensions which were to come within 1 metre of the common boundary. Dr Roseth granted leave for Mr Hemmings to make a submission on behalf of Mr Hortis at the conclusion of the evidence.

64. In his section “ Findings and Conclusions ” (at 4 - 6 of his judgment delivered 17 October 1996) Assessor Roseth included the following comments:

This is a case in which the applicant proposes to extend an existing house in a way which breaches most of the development standards of the current DCP. The applicant’s case is that the DCP is so restrictive that it fails to relate to existing development in the locality. Moreover, the fact that the standards are in a DCP means that they should be given less weight than standards in a local environmental plan. The council’s case is that the intention of the DCP is to reduce the scale of recently occurring development in the locality which it considers excessive.

I cannot disregard DCP simply because it does not allow the scale of development which was permitted under previous planning regimes. The fact that the development standards are in a DCP rather than in the LEP makes little difference to the need for the applicant to justify why those standards should be varied.

The three major development standards which this proposal breaches are the FSR, the proportion of landscaped area and the setbacks from boundaries. As regards the exceedence of the permissible FSR, I note that the existing dwelling without any extensions considerably exceeds it. Mr Moore’s evidence was that he would accept further increase in the FSR as long as it could be achieved with less adverse impact. The breach of the FSR provision, per se, does not therefore justify refusal of this application.

The breach of the other two standards is, however, more problematic. The proposed extensions are over the only part of the site which is still in its natural state. To cover it with elevated structures on tall columns seems to me to go directly against the purpose of imposing a 70% minimum landscaped area requirement. A full reading of the DCP suggests that it accepts that on sloping sites use will be made of elevated terraces. However, the DCP requires that such terraces be integrated with the open space system on the site (p 41). The proposal does not meet this qualitative requirement and the applicant provided no justification for varying this development standard.

As concerns the setback provisions, the proposed garage on the street alignment will breach the DCP’s requirement for a 7.5m building line. Its effect will be to extend the built form along the entire frontage of the site. In my view, this is not a desirable outcome, though, in the context of a highly built up streetscape, this negative feature, by itself, does not constitute sufficient reason for refusal. The proposal also breaches the setback requirement from the rear boundary where the existing dwelling is in breach of it. In my opinion this breach is also justifiable as the properties adjoining the rear boundary are elevated above the site, so that being close to the boundary does not lead to adverse impact.

It is on the northern boundary that the breach of the setback requirement is unreasonable and causes unacceptable impact for the adjoining property. The extensions come to within 900mm of the common boundary. As the edge of the extensions is not parallel to the boundary, the setback increases in places to 3.2m, but the average setback, according to Mr Smyth, is only about 2m. Mr Moore and Mr Smyth disagreed whether the setback was adequate for effective landscaping. Neither side relied on expert evidence from a landscape architect or horticulturalist. In the absence of advice from an expert I accept Mr Moore’s view that the area between the proposed extension and the common boundary is unlikely to allow the growth of effective landscaping.

I now turn to the proposal’s impact on its northern neighbour, 23 Beatty Street. In essence the issue can be reduced to a balancing of the interests of the applicant against those of the owner of No 23. What the applicant wishes to do is clearly desirable from its own point of view. The question is, however, whether it is also acceptable in its impact on its neighbour?

The proposal’s main impact on No.23 is the destruction of the existing outlook to the south and its replacement by an elevated structure supported by tall columns. I agree with Mr Moore’s evidence that the change of outlook is so dramatic and so adverse as to render it unacceptable. In reaching this conclusion, I note that the building at No 23 itself comes close to the boundary and No 23’s enjoyment of a pleasant outlook is by the grace of the unbuilt-on side yard of the subject site. I accept that there is no obligation on the applicant to forgo its development rights on its property in order to continue to provide amenity to No 23. However, this does not justify a development which totally destroys the neighbour’s amenity.

I have taken into consideration the fact that eight people support this application and only one person objects to it. However, the single objection comes from the only property on which the proposal will have an impact. In this case it is appropriate to give more weight to a single objection than to the eight expressions of support.

I have also considered, as the applicant urged me to do, that there are many recently completed developments in the area which are much more intensive and dominant than what would be allowed by the current DCP. However, I do not think this is relevant. I am required to take into consideration the DCP as it is and to apply or vary its requirements as it appears appropriate in the particular case. The applicant has not persuaded me that the variation of the DCP’s standards in this case is justified.
For the above reasons the appeal is dismissed.

11.3.2 The Bull judgment on Application 2

65. Assessor Bull considered the appeal against the refusal of the second application in a three day hearing in May 1997. In her judgment she made reference to various provisions of the LEP and DCP, she set out in detail what was proposed, and then she observed (at 5):

This is the second development application for this part of the site to be refused by council and to come to appeal. The first which was essentially the same layout but extending and more expansive in area to the north and west went in part entirely to the northern boundary. It also included a ridge height to the pavilion complex about 400mm higher than what is proposed here and the pool was set higher and not excavated into the rock surface.

66. After setting out some of the significant features of Assessor Roseth’s judgment, she observed that ten people were notified of the second application, that seven letters of support were received, and that, again, the only objection came from Mr & Mrs Hortis. “ This objection went to the overbearing scale of the proposal (29m long and up to 9.5m high to the eaves height) on the adjacent dwelling ”.

67. Before Assessor Bull evidence was given by Council’s team leader, Mr Moore, Council’s landscape architect, Mr Johnson, and the two experts engaged by Hortis, namely a consulting architect, Mr Bird, and a consulting landscape architect, Mr Taylor.

68. In her section entitled “ Discussions and Conclusions ” Assessor Bull dealt in detail with the challenges by the applicant to the three relevant planning standards, namely, floor space ratio, landscaped area and setbacks. The Assessor commented “ even numerical compliance with those standards does not automatically justify consent ” (at 8) because the “ spatial dimension, that is, the locational aspects of where development is relative to features on-and off-site cannot be dealt with by numerical standards alone ”.

69. She observed that the applicant’s contention was “ that by providing complying and planted setbacks in some areas that he considers the critical ones, the non compliance in other areas such as floor space ratio and a landscaped area are adequately overcome ”.

70. The proposed landscaping arrangements were relied on heavily to minimise or eliminate the amenity impacts on the neighbours and the broader landscape. Assessor Bull was critical in the sense that the landscape plan was really a planting layout for a confined area of the site (at 9):

“ with little resolution as put by Mr Johnson of the grading and retaining implications which are substantial here given the topography and the scale of the construction proposed. The species selection was also questionable according to both Mr Taylor and Mr Johnson, both of whom questioned the compatibility of the species selected and the over-confident expectation of performance of those species over time, in this combination, this location and, in such limited numbers. They did not consider them sufficient to ameliorate the impact of a construction of this scale and expected that the key species would be removed as they developed because of the confined space available ”.

71. Assessor Bull went on to summarise her response on the technical resolution of the landscape issue as follows (at 10):

At a technical level, even if the areas available for planting were adequate, I cannot accept the applicant’s contention that reliance on the schematic and essentially unresolved planting and landscape construction layout to ameliorate a development of this scale is warranted in these circumstances - where topography plays such a dominant role; the development standards in terms of FSR and landscaped area are challenged to this degree; and, the potential effects of the elevated built form are so dramatic. It is more than likely as put by Mr Johnson that in order to support what is proposed by way of planting, even more walling would be necessary and that that would be of a substantial scale to the lower slopes. Yet this is not anticipated sufficiently as would be the case in an adequately resolved proposal which could be properly assessed under s90(1).

72. Assessor Bull then continued with an assessment of the other issues (at 11):

… the current, second proposal does not follow the topography to any great degree and would have a dramatic effect on its neighbour. The modifications over the previous schemes in Mr Moore’s and Mr Johnson’s view are minor and do not address the initial concerns. Most importantly the underlying purpose of the standards would not seem to have been substantially addressed. The applicant and his consultant planner Mr Smyth restricting their justification of the proposal to the fact that there is already development on site and nearby that does not comply with current standards .

73. Assessor Bull considered that in her argument regarding bulk or scale and external appearance in relation to the dwelling and the general streetscape, Mr Smyth was arguing (at 11):

…that the horse has bolted in this area in terms of these standards and that the proposed development would simply be consistent with what exists now and should exist nearby in the future, irrespective.
This was precisely what Council said the reduction in the FSR under Amendment 3 sought to address since it had been concerned of (sic) the trend towards over-development in the area given its foreshore location and had sought to maintain a balance between open space and building mass generally .

74. Mr Smyth appears to have testified that “ the open space to the north of the site is ‘ valuable land which would otherwise be wasted’” (at 11) and the Assessor commented that he placed “ no value on that land as open space for broader scenic or landscape purposes ” and “ that its loss would have no impact on the future of (sic) amenity of the area generally ” (at 11 - 12).

75. Assessor Bull summarised Mr Smyth’s evidence by saying (at 12) that he:

considered that the planting of the setbacks to the north and west (assuming them to be successful) would be more than adequate to fulfil and prevent concerns relating to that northern property and that anything more in the circumstances would in his view be unfair and unreasonable given the surrounding developments .
….
… that the planning standards for floor space ratio and landscaped area do not relate solely to the relationship to the neighbouring dwelling … but go to the location of the site within the Foreshore Scenic Protection Area and Subzone 7 under the DCP where greater emphasis is now placed in the planning framework on landscape and building quantity and quality, and protection of the environment through a limitation on overall building mass.
Nor have I been persuaded simply by the opinion advanced that the Subzone description in the development control plan is so removed from the reality of the area and its standard of development that it warrants the divergence from the standards proposed. While there may be non compliances with particular standards evident nearby, these do not dominate the precinct which remains generally consistent with the Subzone description .

76. Assessor Bull concluded (at 13 - 14):

As Assessor Roseth said in his judgment on the previous proposal ‘… to cover [the only part of the site which is in its natural state] with elevated structures on tall columns seems to me to go directly against the purpose of imposing a 70% minimum landscaped area’ , noting as I do here that the applicant provides no real justification for varying this development standard to this degree.

The development still substantially exceeds the standards; is located so as to have maximum impact on the existing undisturbed landscaped features; including the rock outcrops, topography and vegetation; and, has the greatest impact on the neighbours who have a reasonable right to expect a degree of conformity with the standards which now apply.

In summary, both the additional floor space and the pool construction which I separate in terms of their relationship to FSR and the landscaped area standard, are expansive to both the north and west and reduce the landscaped area in the part of the site where it has the most value both to the broader landscape because of its features and where it acts as a buffer between the neighbours. The floor space and the pool and the surrounds by virtue of their elevation also have a maximum impact on that neighbouring property, an impact that would not be ameliorated by the planting treatment proposed by Ms Sonter or even one that I could conclude would be successful in the same restricted space and location.

I accept the evidence of the experts for council that what is proposed by way of planting and setback is inadequate to the north and west and cannot be relied upon either to screen the development or to establish an open space complement to the building to fulfil the requirement of the LEP and the DCP which is to ‘maintain the lower density landscape character of the locality with larger spaces around buildings’.

There would simply not be with all the development on the site which pushes out to the three boundaries and towards the street, any large spaces around the building.

Like Assessor Roseth and indeed council’s planner Mr Moore, I cannot consider with the variety and the topography and building form inherent in this location that all standards must be applied at all times. I do, however, consider that any variation must adequately address the purpose of the standards and respond to the challenges they present. Such site by site application may well explain the divergences that Mr Mailman appears to consider so important in the surroundings.

In this instance I cannot conclude that given their underlying purpose it is in the public interest to vary the standards to the degree proposed. There are, as put by experts for the council, other options available to the applicant to achieve a pool recreation area and a third garage in a more compact and space effective way with less impacts on the broader landscape and land form and on the neighbouring properties. This could well involve less enclosed or roofed space, a re-oriented pool, more sensitively allocated surrounding levels and a revised location and arrangement for some or all of the components relative to the existing dwelling, the site and the adjacent public and private areas. Most obviously it would appear to involve the removal of the elevated floor space to the north-west where it has such a dramatic impact.

While some of these options have been canvassed by council it would appear that they have not yet been seriously considered, perhaps because of an unwillingness on behalf of the applicant to confront and accept the controls that now exist in this locality and their underlying purpose.
Suffice it to say that the key challenge referred to in the subzone description in the DCP has not been met by the level of design response to the planning imperatives that exist here.

11.3.3 Expert Opinion?

77. Mr Ingham, an expert town planner who is well known to this court, gave evidence that the “objective of retaining landscape character of the locality, particularly in terms of retaining natural ridges such as rock outcrops have not been addressed” . Hortis contends that the development’s impacts on streetscape, foreshore scenic protection area and sub-zone 7, as identified in earlier assessments and appeals, were not addressed or resolved by Applications 3 and 4.

78. Assessor Bull noted that questions regarding retaining walls on No.21 needed to be resolved, particularly to cope with necessary screening trees. The question of the retaining walls has been deferred for further consideration, pursuant to condition 15 imposed on the consent, and Hortis contends that this is the deferment of an essential matter.

79. The DCP appears to accept that on sloping sites use will be made of elevated terraces, and requires that such terraces be integrated with the open space system on the site. It is suggested that the platform or terrace area in this development will be up to approximately 11 metres above the ground level on Hortis’ land. Assessor Roseth commented, and Mr Ingham has reinforced the reservation, that this proposal does not meet the “ qualitative requirement ” of the DCP regarding “ integration ”, and no justification had been advanced for varying such a development standard.

80. The earlier proposals included columns, but they appear to have been replaced in the latest proposal by a recessed blank wall, the nature and dimensions of which are unclear on (or from) the plans. According to Mr Ingham, the terraced area is, therefore, not to be “ integrated with open space ” as required by the DCP.

11.3.4 Hortis’s Contentions

81. On Hortis’s behalf Mr Hemmings submits that the statements in the Council report as to the proposal having addressed the matters raised in the previous judgments were “ not only erroneous and misleading but diverted the consent authority from the discharge of its duties under the LEP ” (his emphasis - see par 73 of his written submissions).

11.3.5 Council’s Contentions

82. The Council maintains that the Mailman proposal, as now approved, is responsive to the matters set out in the decisions of Roseth and Bull. Council drew attention to the following amendments to Application(s) 1 and/or 2, incorporated into the drawings for Application(s) 3 and/or 4, having regard to the merit issues:

83. Hence the Council states that ameliorative measures were incorporated into Applications 3 and 4.

11.3.6 Mailman’s Contentions

84. Mr Thompson points to the fact that McCarthy was aware of the two previous applications. McCarthy, in addition to referring to both judgments in his affidavit of 23 November 1998, gave oral evidence that he had read the judgment of Assessor Bull (T177L40). Mr Thompson also points out that the court is entitled to infer from McCarthy’s report of 29 June 1998, and his oral evidence, that he was aware of the contents of the two Assessors’ judgments and is also entitled to infer from the inspection by the Council itself on 29 June that it had the report of McCarthy and was aware of the two prior decisions. Indeed, the report of 29 June 1998 makes specific reference to the fact that “ This proposal was considered having ... due regard to previous judgments of the Land and Environment Court ” (at 33 of Annexure E to the affidavit of Paul McCarthy dated 23 November 1998).

11.3.7 Conclusion on Challenge 3

85. I have concluded that Challenge 3 must fail.

86. On its own, a challenge that earlier-expressed reservations about the essential proposal were not addressed cannot be sustained, unless it can be shown that the Council’s processes of consideration infringed the relevant legal principles.

87. Those relevant legal principles were specifically pleaded, and alleged breaches particularised and relied upon by Hortis, in specific sections of the POC to which I will now turn my attention.

11.4 Challenge 4: Contraventions of the DCP

88. Hortis asserts the following contraventions of the DCP (POC 19):

(a) the destruction of natural features of the site having regard to the location of building, driveway or other structures on the site. Natural features include rock outcrops, slope of the allotment or other topographic features (Cl.7.4);
(b) the maximum Floor Space Ration ( FSR ) (Cl.3.2) (0.4:1);
(c) the minimum area of the site area to be landscaped open space (Cl.6.2) (70%);
(d) the amount of the landscaped open space capable of growing substantial trees and which could be planted with an appropriate large tree species when the site is landscaped (Cl.6.2);
(e) the setback of new buildings having regard to allotment dimensions, the character of the street and the setback of the buildings in the street (Cl.5.2);
(f) the distance between any part of the building and the side boundaries of the site (Cl.5.3);
(g) the distance between any part of the building and the rear boundary (8 metres);
(h) the adjoining properties will be adversely affected;
(i) the failure to meet the relevant setback and building line objectives ie:
(1) to preserve and enhance the existing landscape;
(2) to provide privacy;
(3) to provide equitable access to light and sunshine;
(4) to promote flexibility in the siting of buildings; and
(5) to minimise adverse impact on adjacent and adjoining properties (Cl.5.1).

89. Council has a duty pursuant to s90 of the EP&A Act to “ take into consideration ” such of the matters specified therein as are relevant to the subject development. Subsection (1)(a)(iv) provides that such a matter to be taken into consideration is “ any development control plan in force under section 51A or 72 ”.

90. There has been no dispute between the parties, at least during the hearing of the proceedings, as to the validity of the DCP. Accordingly, it is common ground that the Council, when determining Application 3, was obliged to take into consideration the provisions of the DCP.

91. Once the Council takes the DCP into consideration it has satisfied s90(1)(a)(iv), notwithstanding that the development may or may not have strictly complied with the provisions of its DCP. It is relevant to note at this stage that a development control plan is not an environment planning instrument as defined by s 4 of the EP&A Act.

92. In Wise & Ors v South Sydney City Council & Ors (40002 of 1996, Talbot J, 2 February 1996) His Honour made clear (at 11) that Council “ was not obliged to enforce strict compliance with all the requirements of the DCP ” .

93. In Kimber & Ors v Ku-Ring-Gai Municipal Council & Ors (40057 of 1990, 5 December 1990) Cripps J said:

The circumstance that the parking proposed to be provided does not come up to the standard in Council’s Code (if that be the fact) is barely relevant to the issue before the Court. Council is not bound to apply the provisions of its codes.

94. See also Binnijig Pty Ltd v Manly Council (10733 of 1996, Lloyd J, 18 April 1997) and Crone & Associates Pty Limited v Sydney City Council [1999] NSWLEC 115.

95. Kimber also relevantly describes the Court’s role, when reviewing decisions of a collegiate body (such as the Council), in this way:

Generally speaking, it can be said, I think, that the Court is not entitled to have regard to what was in aldermen’s minds when they vote on a proposal. It is the collective decision of the Council that determines the development application.

96. Thus the task that Mr Hortis embarked upon in these proceedings is an onerous one. He must show what was, or was not, in the mind of the Council, as a collegiate body, when it was determining the development application.

97. The dichotomy between judicial review of an administrative action and the review of an administrative discretion is consequently of great importance to this challenge (see pars 2-8 above).

98. In Houlton & Ors v Woollahra Municipal Council & Ors (40274-5 of 1997, 17 August 1998) Lloyd J stated (pars 17 and 22):

… it is not necessary for a Council to set out in writing every matter which it has taken into account. Moreover, the Council and its officers do not come to a development application such as the present one devoid of any knowledge of the subject matter. They would generally be aware of the setback controls and other controls in the DCP as a result of their consideration of other development applications…. Mr Craig referred to evidence which showed that six of the seven councillors who comprised the members of the Development Control Committee which determined the development application under delegated authority had attended on an inspection of the subject site and of the neighbouring properties. They were, accordingly, well aware of what was proposed and the impact which the proposed development would have upon those neighbouring properties. Mr Craig referred to the various written objections made by the present applicants to the first respondent in the course of the consideration of the development application including the references therein to the retaining wall and its height and proximity to the property boundaries…. It could not be said, in Mr Craig’s submission, that the applicants have discharged the onus of positively establishing that proper consideration was not given to the matters now complained of.
…
Moreover, I do not doubt that the members of the first respondent who comprise the Development Control Committee were well aware of the aims of the Policy from their own general knowledge and experience.

99. Kimber is also relevant on this point, with Cripps J stating:

But whatever the explanation for the matter not being referred to in the written material, I am not prepared to assume that the Council, when it made its decision, was ignorant of its own plan and that No 3 Arnold Street was an ‘heritage item’ .

100. I have considered each of the alleged contraventions of the DCP and found that none of the allegations made in POC 19 are substantiated. The broad principle upon which I have relied upon throughout the consideration of this challenge is the test of whether Council considered the provisions of the DCP, as required by s90(1)(a)(iv). None of the evidence establishes that the Council failed to consider any relevant provisions of the DCP as alleged in POC 19. Therefore, within the Court’s task of judicial review, I find that the sub-challenges have no substance. My reasons in regard to each claim follow:

11.4.1 The sub-challenges in detail

(a) The destruction of natural features

Clause 7.4 of the DCP states that “Natural features of the site should not be destroyed in the location of building, driveway or other structures on the site. Natural features include rock outcrops, slope of allotment or other topographic features. ” Hortis alleges that this has not been complied with, as the proposal includes the destruction of a rock outcrop.

Council inspected the site on the morning of 29 June 1998, before determining to grant consent later that day. In line with Houlton and Kimber , I believe that Council was aware of the provisions of cl 7.4 of its own DCP. It was also aware, as a result of the site inspection on 29 June 1998, of the circumstances of the site with respect to its natural features.
I conclude that the Council has satisfied the requirements of s90(1)(a)(iv) of the EP&A Act.

(b) Exceedence of FSR maximum

A maximum floor space ratio (“FSR”) of 0.4:1 is applicable to the land, as set out in cl 3.2 of the DCP.

McCarthy’s report of 29 June 1998 (Annexure E to his affidavit dated 23 November 1998) acknowledged that the proposal does not comply with this numerical standard, stating that the proposed FSR is 0.51:1 (as compared with the existing FSR of 0.49:1). McCarthy (at folio 35 of Annexure E) stated that:

It is noted from the numerical assessment that the existing dwelling on the site does not comply with the (sic) minimum floor space ratio (FSR) requirements of the Residential Development Control Plan (DCP). The proposed additional floorspace is considered minor and does not result in an undue adverse impact on the streetscape or amenity of neighbouring properties .

McCarthy’s report was before Council when it determined Application 3. Council was, therefore, aware of the non-compliance of the proposal with the FSR standards set out in cl 3.2 of the DCP.

(c) Minimum 70 per cent landscaped open space area

The proposed development provides for 63 per cent landscaped open space (the existing landscaped open space is 65 per cent). Hortis states that this does not meet the qualitative requirements of the DCP - it is below the minimum of 70 per cent, as provided in cl 6.2 of the DCP - and also that the applicant for consent provided no justification for varying the development standard.

The Council again relies on the McCarthy report of 29 June 1998, which was before the Council when it determined to grant approval. The report conceded, in terms, that the proposal did not comply with the landscaped open space minimum requirement (folio 33 of Annexure E to the McCarthy affidavit dated 23 November 1998).

I conclude from this that the Council took into consideration cl 6.2 of the DCP (and Application 3’s non-compliance) when determining to grant approval at its meeting on 29 June 1998.

(d) The amount of landscaped open space capable of growing substantial trees

Clause 6.2 of the DCP provides:

At least 30% of the landscaped open space should be capable of growing substantial trees and should be planted with an appropriate large tree species when the site is landscaped.

Once again [see Houlton ], the Council was aware of the provisions of its own DCP. The evidence of the site inspection of 29 June 1998 also indicates that the Council was aware of the particular conditions, constraints and topography of the site. There is no evidence to suggest that the Council did not take into account cl 6.2 of the DCP. The evidence, in fact, points to the contrary, in that landscaping was dealt with specifically in the report of McCarthy (Folio 35 of Annexure E to the McCarthy affidavit dated 23 November 1998).

(e) Front building setbacks

Clause 5.2 of the DCP provides:

New buildings will have a setback determined by the allotment dimensions, the character of the street and the setback of buildings on the street. Where fixed building lines have previously been set, these will continue to apply (refer to the Health and Building Department). Generally buildings should be setback 6 metres from the front street alignment. Under all circumstances the objectives of this clause must be met and this must be demonstrated to Council.

The objectives of cl 5 of the DCP are listed in cl 5.1 to be:

1. To preserve and enhance the existing streetscape.

2. To provide privacy.

3. To provide equitable access to light and sunshine.

4. To promote flexibility in the siting of buildings.

5. To (sic) minimize adverse impact on adjacent and adjoining properties.

front

Sommerville v Dalby

Parramatta City Council v Hale

It has been long established that that onus of proof of invalidity rests on the challenger ( Hale at 335). None of the evidence presented during the proceedings shows that the Council failed to consider cl 5.2 of the DCP.

(f) Side boundary setbacks

containing windows

Exhibits C3

C10

Exhibit PMc3

without

I find that sub-challenge (f) is unfounded.

(g) Rear setback

Clause 5.4 provides that the distance between any part of the building and the rear boundary shall be 8 metres. The rear setback proposed in the application is 0.9 metres.

This non-compliance is raised at Folio 33, and is discussed in greater detail at Folio 36 of McCarthy’s report (Annexure E to his affidavit dated 23 November 1998). It was, therefore, before Council when it considered and determined Application 3.

(h) The adjoining properties would be adversely affected

This allegation borders on the line between merit and judicial review. As I have detailed earlier in the judgment, these proceedings are concerned only with judicial review and not the merits of the Council’s decision to grant approval to the development application.

took into account

(i) Failure to meet relevant setback and building line objectives

The fact that the Council failed to apply the relevant setback and building objectives is a question of merit and, therefore, not within these proceedings.

As such, the Court’s function with respect to this particular point is merely to satisfy itself that the Council took into consideration the provisions of cl 5.1 of the DCP.

As stated previously, the onus is upon Mr Hortis to show that the Council failed to consider the relevant setback and building line objectives. There is no evidence supporting this allegation and I, therefore, cannot uphold this sub-challenge.

11.4.2 Conclusion on Challenge 4

101. As noted at the beginning of par 100 above, I do not uphold any of the claims in Challenge 4.

102. I have not dealt with the question of manifest unreasonableness (in the Wednesbury sense) with respect to compliance with the DCP. This will be covered when I deal with Challenge 10.

11.5 Challenge 5: Irrelevant matters considered

103. It has long been established as a principle of administrative law that a consent authority must not take into account irrelevant considerations in exercising its discretionary powers, and Hortis alleges that the Council took into account the following irrelevant matters (POC 24):

(a) past costs incurred by the First Respondent successfully defending the First Appeal and the Second Appeal as referred to in paras 9 and 14;
(b) the likely future costs of successfully defending a third appeal to the Land and Environment Court if the First Respondent refused Application No. 3 or Modified Application No. 3;
(c) advice that the application adequately addressed all of the matters raised in the said judgments which it knew or should have known was erroneous.
(d) plans which it knew or should have known were erroneous in a number of significant areas;
(e) stated existing ground levels which it knew or should have known were erroneous.
(f) the screening effect of non permanent non indigenous trees; and
(g) the cost to the Second Respondent to carry out the development.

104. I have concluded that none of these claims has been proved. My reasons in relation to each individual claim are given below:

11.5.1 The sub-challenges in detail

(a) Past costs

Both Mr Hortis (affidavit 3 February 1999) and Mrs Hortis (affidavit 4 November 1998) allege that Mr Wayne Collins, General Manager of Manly Council, stated that the Council approved Application 3 as a result of excessive legal fees incurred in (successfully) defending the refusals of Applications 1 and 2.

Collins, in his affidavit dated 24 November 1998, and in his oral evidence, denies this allegation.

More relevantly, both Mr Jackson for the Council and Mr Thompson for Mailman point out, correctly, that even if Collins made the statement alleged (which was not admitted and has not been proven), there is no evidence that the Council took this into account as a collegiate body when determining to approve the development application.
Consequently, it has not been proved that the Council took into account the irrelevant consideration of past costs.

(b) The likely future costs

There is likewise no evidence that the Council took into account the likely future cost of successfully defending a third appeal.

(c) Matters raised in the Assessors’ judgments

Council was obliged, under s90(1)(q) (as it then was) of the EP&A Act, to take into account the “ circumstances of the case ” when determining the development application. The circumstances of this case include, inter alia, the previous decisions of Assessors Roseth and Bull concerning Applications 1 and 2 respectively. Accordingly, the Assessors’ decisions are relevant considerations to be taken into account when determining the development application.

In accordance with Houlton and Kimber, I conclude that the Assessors’ decisions were within the full knowledge of the Council as a collegiate body. Indeed, there is no evidence to suggest to the contrary.

Additionally, there is no evidence to show that McCarthy’s advice to Council (that the application adequately addressed all of the matters raised in the decisions of Assessors Roseth and Bull) was erroneous.

I, therefore, conclude that this claim is not substantiated.

(d) Erroneous plans

This claim rests on Hortis showing that Council knew or should have known that the plans were erroneous. This argument is based upon allegations that:

- the plans were diagrammatic only;
- the height of No. 23, natural ground levels, reduced levels of buildings, height of walls and setback from the northern boundary as shown on the plans were erroneous;
- the plans did not show columns;
- the report to Council was erroneous with respect to the suspended nature of the terraces;
- section BB suggests that the terrace area is 8 metres back from the boundary where, in fact, it is only 2 or 3 metres from the boundary;
- section AA was eliminated whereas in all previous applications it demonstrated how the north west terrace was to be erected over and above the natural features and rock outcrops; and
- the support wall was a “ recent invention ” by McCarthy.

While McCarthy concedes that the plans were diagrammatic (at page 8 of his affidavit dated 23 November 1998), Council’s consideration of such diagrammatic plans does not constitute an error of law on its part.

Further evidence from McCarthy establishes to the Court’s satisfaction that the drawings clearly represent the proposal in a manner from which the decision maker can properly assess impacts. Although some of the heights as depicted by the plans were inaccurate, McCarthy’s oral evidence was that he was able to assess, and report on, the proposal in a proper way, relying on his inspections of the site and reference to the McNiff survey ( Exhibit C6 ) (T171L15 and T172L5).

Section BB could, and should, not be relied upon to suggest the distance between the boundary and the terrace area, as it is diagrammatic only. On Council’s behalf McCarthy made an independent assessment.

I also accept McCarthy’s evidence that he realised that columns did not form part of Application 3. This is clear (despite the removal of Section AA from the plans) as the columns do not appear in any of the other drawings (T185L10). I also accept McCarthy’s evidence that he was aware that the terrace area is to be supported by a wall instead.
The mere fact that the plans before Council contained inaccuracies does not constitute some error of law. In Weal v Bathurst City Council [1999] NSWLEC 132, Bignold J, when dealing with a similar problem, said (par 88-89):

…I do not think that that apparent error produces the factual or legal result that the noise impact of the proposed development was not properly considered by the Council.
The legal requirement that a decision-maker properly consider a relevant matter does not mean that the consideration must be based upon a perfect understanding or presentation of the matter, free of factual error. Of course, some errors (either of law or fact or both) may be vitiating, but I do not think that the apparent error made in plotting the Applicant’s residence in the Benbow Noise Assessment is such an error or produces such a legal consequence.

I am faced here with an analogous situation. Whilst there may have been some errors of fact, these errors were taken into account by both the Council Officer when preparing his report, and by the Council when determining the application.
I, therefore, resolve this point of claim in favour of the respondents.

(e) Erroneous ground levels

It is clear from the evidence that this allegation is also analogous to the situation in Weal .

McCarthy was aware of the existing ground levels from his inspections of the site (T172L5) and from reference to the McNiff survey ( Exhibit C6 ). The Council was also aware of the existing ground levels as a result of the site inspection on the morning of 29 June 1998.
Clearly the Council was aware of the development it was considering and did not rely solely on the diagrammatic plans to assess and determine the proposal.

(f) The screening effect of non permanent non indigenous trees

Subsection 90(1)(h) of the EP&A Act provides that the consent authority must take into consideration “ the relationship of that development to development on adjoining land or on other land in the locality ”.

The screening effect of trees affects the relationship between the proposed development and the outlook from Hortis’s property. It was, therefore, a relevant matter to be taken into consideration by the council when determining the development application.

The fact that the trees may or may not have been permanent or indigenous does not affect this conclusion.

(g) Mailman’s cost to carry out the development

Hortis relies on the fact that Council took into account an irrelevant matter, being the additional cost incurred by Mailman in complying with the condition requiring a 4m setback.

I can find no evidence that shows that this was taken into account by the Council in determining the modification application. Mr Hortis must, therefore, fail in this claim.

11.5.2 Conclusion on Challenge 5

105. As noted above (at the beginning of par 104) Challenge 5 fails.

11.6 Challenge 6: Inadequate consideration of relevant matters

106. It is procedural ultra vires if Council fails to take into consideration a relevant matter when determining a development consent. The list of relevant matters is contained in s90(1) of the EP&A Act.

107. Hortis alleges (POC 25) that the Council failed to consider, or alternatively gave no real consideration to, the following relevant matters :

147. His Honour inferred that the Council had failed to address the pre-condition in cl 19(5). Accordingly, the prohibition operated and the development was prohibited under s 91(2) of the Act. “ The Council simply adopted the officer’s recommendation which did not frame the question necessary to be addressed .”

11.8.2 Clifford’s case

148. Clifford was a judgment of Stein J while he was a (first instance) judge of this Court. As noted above he applied it in giving the Court of Appeal’s judgment in Currey .

149. Clause 10 of the Wyong LEP required the Council, before granting consent, to form the opinion that the carrying out of the development was consistent with the objectives of the zone. Clause 14 imposed a height restriction which could only be waived if the Council were satisfied of certain specified matters.

150. The Council granted consent to itself for the erection of a substantial hotel and associated facilities at The Entrance. The applicants owned a neighbouring block of apartments and they challenged the consent on the basis that a consultant to the Council had been “ generous ” in assessment of the proposal and “ non-analytic ” in its approach to environmental impacts.

151. Stein J held that the granting of consent was manifestly unreasonable, and that the consent was, therefore, invalid. He surveyed the objectives and other provisions in the planning instruments, the consultant’s report and the grounds of challenge and then went on to say (at 249):

It is accepted that in taking the decision the Council had before it all the relevant documents, including the consultant’s report. In addition, it is proper to assume that the individual councillors possessed local knowledge and acted as a collegiate body… it adopted the recommendation of its consultant in the report referred to above.
It is clear from the development application that it was in breach of cl 14(1) of the local environmental plan in that its height exceeded that permitted by the building height map. This specified a maximum of 4 storeys whereas the proposal was for 10 storeys. Unless the discretion arising under cl 14(3) could be exercised the application must fail. It is also obvious that the proposal was in breach of the development principles for the subject land spelt out in the Development Control Plan No 11 (cl 5 and fig 1). Therefore, in order that the development become permissible (as opposed to prohibited) the Council had to be satisfied as to each subparagraph of cl 14(3). These embrace the aims of the local environmental plan in cl 2 and, by reason of cl 10(3), the objectives of the 2(g) zone. It was necessary that the Council address itself to each of these matters (in so far as relevant) in order to form the requisite opinion and satisfaction. This, it must be stressed, is a separate consideration from the s 90 merit matters because cl 14(3) concerns the permissibility of the proposal.

152. After considering Council’s decision-making process in accordance with cl 14(3), His Honour continued (at 250):

The Council was therefore potentially misled by the bland statement that the ‘shadow effect on residential properties … is not considered significant’ . This statement was unadorned by any real analysis of overshadowing, privacy or views, although the latter were touched upon in the s 90 considerations. Again, it must be emphasised that cl 14(3) requires separate consideration and satisfaction from the merit considerations, which only come into play if cl 14(3) is satisfied.
These then were the matters with which the Council was required to be satisfied (in a cumulative fashion) before it could approve a building which exceeded the maximum height specified in the Plan.

153. Stein J formed the opinion that the Council could not be satisfied in relation to several elements in cl 14(3), but, even if he could have formed the required opinion “ it still needed to form the opinion that the development was consistent with the zone objectives ”. His Honour came to the view that, on the material before the Council at the relevant time, it could not reasonably conclude that the development was “ compatible in scale and function to other residential development in the locality ” as required by the objective.

11.8.3 Franklins’ case

154. Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Limited (CA 40115 of 1997, 13 May 1999) is a recent decision of the Court of Appeal, on appeal from Bignold J. Mr Hemmings brought this case to the attention of the court and the other parties while this judgment was reserved.

155. Penrith City Council was the owner of land that Campbells sought to acquire. The Council sought to rezone the land and sent a draft LEP to the Department of Planning in May 1993 seeking the issue of a s 65 certificate. This was rejected by the Department in June 1993, and a new draft LEP was forwarded to the Department on 25 October 1993. A s 65 certificate was granted to the second draft, allowing it to be exhibited in December 1993 and January 1994.

156. On 4 February 1994 Parliamentary Counsel approved the making of the LEP but in an amended form. Relevantly, cl 32 was redrafted so that it included the following sub-clause:

(2) Despite any other provisions of this Order, a person may, with the consent of the Council, carry out development for the purposes of a wholesale and retail warehouse on land to which this clause applies, but only if the Council is satisfied that not less than 60% of the goods sold from the land will be resold by retail after being removed from the land . [Emphasis added]

157. Penrith Local Environment Plan No. 231 was gazetted on 6 May 1994, containing cl 32(2) in its altered form. On 12 December 1994 Council granted approval to Campbells for a “ new warehouse, car parking areas and associated services” .

158. The appellant claimed, inter alia, that in granting this consent the Council failed to consider the requirement of cl 32(2) of the LEP that it be satisfied that not less than 60% of the goods sold from the premises would be resold by retail after removal from the premises. The trial judge found that the documentary evidence did not support the inference that the Council did not consider the pre-condition in cl 32(2). His Honour also relied on the presumption of regularity as supporting the inference that the relevant matter was considered by the Council.

159. In overruling the trial judge on this point, Stein JA (with whom Powell and Giles JJA agreed) remarked (at par 27) that the circumstances of the case bore an extraordinary parallel with that of Currey . Relevantly, Stein JA said (at par 18):

[Clause 32(2)] acknowledges that a wholesale and retail warehouse is prohibited on the subject land, but says that the prohibition may be relaxed if the Council forms a positive opinion that the ratio of wholesale to retail sales from the premises meets the requirement in the clause. The key words in the sub-clause are ‘but only if the Council is satisfied that’. It is clear that the Council had to be so satisfied prior to the granting of consent to Campbells. It had to be satisfied, as a pre-condition to approval, that Campbells’ operations from the premises comprised a wholesale component of not less than 60%. Council had to address itself to this criterion in order to form the requisite opinion and before embarking on a consideration of the ‘merits’ under s 90 of the Environmental Planning and Assessment Act 1979, see Clifford… and Currey .

160. His Honour further stated (at par 21):

It is the appellant’s submission that the ... Council failed to appreciate that it had a mandatory obligation to consider and be satisfied of compliance with the 60% requirement prior to granting consent. According to the appellant, there is no reference in the documentary evidence to Council’s consideration of anything concerning the 60% requirement in cl 32(2).

There is no reference, according to the appellant, in the officers’ planning report to Council recommending that it endorse the draft LEP amended by the Parliamentary Counsel; in Campbells’ development application; in the officers’ planning report to Council for its consideration of the development application; in the minutes of Council of 5 December 1994; or in the consent itself.

It must be remembered that the importance of the requirement in cl 32(2) is that the development is prohibited unless the Council forms the opinion. Put shortly, the appellant submits that there was nothing in the documents before the Council to alert it to the need to be satisfied of the 60% requirement.

11.8.4 The Relevant Question for the Court in this Challenge

161. Before framing the relevant question to be answered by the court, I think it is necessary to repeat the content of cl 10 and cl 17 [emphasis added]:

10: Zone objectives and development control table
(1) The objectives of a zone are set out in the Table to this clause under the heading ‘ Objectives of zone’ appearing in the matter relating to the zone.
(2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which -
(a) development may be carried out without development consent;
(b) development may be carried out only with development consent; and
(c) development is prohibited.
are specified under the headings ‘ Without development consent’ , ‘ Only with development consent’ and ‘ Prohibited ’, respectively, appearing in the matter relating to the zone.
(3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.
17. Visual and aesthetic protection of certain land
The council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area.

162. It is clear from reading these two clauses that they both contain pre-conditions that the Council must form an opinion (cl 10) and satisfy itself (cl 17) in order for the development to be permissible (that is, not prohibited). This must occur before consideration of matters under s 90 of the EP&A Act. Thus the relevant question is whether, in the absence of any other evidence, the Court should draw the inference that the Council failed to address its mind to cl 10 and cl 17 of the LEP.

163. In order to address this question, a thorough examination of the evidence is required.

11.8.5 Hortis’s submissions

164. Counsel for Hortis makes the following points:

- Clauses 10 and 17 of the LEP are “ pre-conditions ”.
- Council was unaware of its obligations when determining to grant consent.
- The site the subject of the proposed development comes within Zone No. 2 - Residential Zone, of the Development Control Table contained within the LEP (Part L, Clause 1).
- The evidence of Mr Ingham and, in particular, Exhibit H4 clearly show that the site is not only within a Foreshore Scenic Protection Area but is visible from the public domain and the water.
- Neither clause was referred to in any of the documents accompanying the development application, nor in McCarthy’s report.
- The Council did not address matters which were essential to enable Council to discharge its statutory duties.
- Due to the inadequacy of the information provided to it, Council was unable to, and did not, form the required opinion.
- As a matter of fact and law the Council failed to take into consideration LEP cl 10 and cl 17 ( Clifford at 248-249). That is, the Council failed to address the prohibitions by simply adopting the officer’s recommendation, which did not frame adequately the question necessary for the Council to address ( Currey at 15).
- McCarthy diverted council from discharging its duty under cl 10 and cl 17 because he never informed them of its duty and never gave them the material necessary to discharge their duty. A failure by Council to form the opinion (under cl 10) and be satisfied under cl 17 invalidates any determination of the merits (T9, T13L10, T14L50, T15L25, Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294.).

11.8.6 Council’s submissions

165. Council’s position is as follows:

- The LEP contains only one residential zone (T37L5) which is referred to in both McCarthy’s report (Annexure E to his affidavit dated 23 November 1998) and Smyth’s Statement of Environmental Effects (folio 72 of Exhibit C4 ).
- The Court is entitled to assume Councillors were aware of their Council’s own instruments and have knowledge of their local area (T18L15).
- Assessor Bull’s decision made specific reference to the zone objectives in the LEP, and the Court is entitled to assume that the Councillors were aware of the past decisions of the Court (T18L15). Assessor Bull’s decision was also referred to in McCarthy’s report.
- McCarthy’s report referred in detail to the residential DCP.
- There is only one residential DCP for the Manly area, and this was referred to in McCarthy’s report. The Court is entitled to assume that the Councillors were aware of the DCP ( Houlton ).
- The site is not one of the sensitive sites referred to in the DCP as being on the escarpment of Middle Harbour (T19L45).
- The DCP sets out the aims and objectives of the LEP (cl 5).
- The reasons for refusal of Applications 1 and 2 were based on, inter alia, non-compliance with the aims and objectives of the LEP (folio 18 and 19 of McCarthy’s affidavit).
- There are no statutory requirements concerning preparation of officers’ reports.
- McCarthy’s report need not be a legal document setting out in detail each aim and objective and references to all clauses in the planning instrument or the DCP (T38L5).
- McCarthy referred to s90 and that refers to LEPs (T19).
- The Court can assume that each of the Councillors was aware of the residential zoning and the relevant zone objectives.
- The applicant should have subpoenaed each of the Councillors who was present at the meeting on the evening of 29 June 1998 and established, by cross examination, that the collegiate body was not aware of its own zoning objectives.

11.8.7 Mailman’s position

166. Mailman’s position is that:

- McCarthy’s report concluded that the proposal had been considered having regard to s 90 of the EP&A Act, s 12 of the Local Government (Approvals) Regulation , the LEP, the DCP and also to the previous judgments of this court.
- McCarthy’s report included assessment of the proposal’s non-compliances with the DCP for FSR and setback.
- McCarthy assessed landscaped open space in his report.
- Other non-compliances with the DCP were included in the report.
- The Court is entitled to draw the inference that McCarthy, when he carried out his assessment ,was well aware of, and satisfied himself, as to the objectives of the residential zone for the LEP (T50L45).

11.8.8 Did Council consider the pre-conditions?

167. Both respondents have relied on the Court presuming regularity in the Council’s determination.

168. Stein JA in Franklins addressed this point specifically (at par 28):

Before coming to the often difficult issue of whether the inference of failure to consider or form the requisite opinion should be drawn, it is convenient to deal with the question of the relevance of the presumption of regularity. As mentioned earlier, Bignold J thought it appropriate to apply the presumption and not to draw the inference urged by the appellant. In my opinion, the presumption of regularity has no place in a case such as this. What is here involved is a question of power. If the pre-condition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an ‘essential condition’ or preliminary to the exercise of the power ... Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. The presumption of regularity has no part to play in this consideration.

169. The submission of the respondents also concentrated on the general or local knowledge of the Councillors. This included submissions as to the lack of complexity of the planning instruments. However, this was deemed to be irrelevant by Stein JA. He states at par 26 of his judgment in Franklins : “ Here local knowledge is irrelevant. What is needed is actual knowledge of the pre-condition of satisfaction to be held by Council .”

170. Mr Thompson’s submissions relied on the evidence from McCarthy’s report. Whilst I accept this evidence, it does not go so far as to show that the Council satisfied itself that the pre-conditions contained in cl 10 and cl 17 had been met.

171. Thus I conclude that there is no real evidence that the Council did, in determining to grant its approval, satisfy itself of the pre-conditions contained in cl 10 and cl 17 of the LEP. Neither clause was identified by McCarthy’s report, as an issue requiring the Council’s attention, and there is no evidence (from the minutes of Council’s meeting of 29 June 1998) that either pre-condition was satisfied, as required by the planning instrument.

11.8.9 Conclusion on Challenge 8

172. Following Franklins and Currey , the court must draw from the evidence in this case the inference that the Council failed to address its mind to cl 10 and cl 17 of the LEP, and in doing so committed an error of law. The consent granted is, therefore, invalid, in accordance with s 91(2) of the EP&A Act.

173. I refrain from making any comment as to whether the application would be permitted if it were duly considered by the Council pursuant to cl 10 and cl 17 of the LEP. This merits question is not within the Court’s limited role of judicial review.

11.9 Challenge 9: Unfairness

174. It is alleged by Hortis (POC 27) that the Council’s decisions were unfair in that:

(a) it predetermined approval of application 3.
(b) it was biased.
(c) it proceeded to determine the application knowing it could not properly consider the application and modification because it knew, or should have known, that the plans submitted in support thereof, and the Council reports thereon, contained “ numerous significant errors and inaccuracies ” including:
(i) inaccurate representation of the height of the development with respect to both No 21 and 23 Beatty Street;
(ii) inaccurate elevations;
(iii) inaccurate representation of the existing ground levels;
(iv) erroneous and inaccurate estimates of heights, FSR and landscaping and of structures elevated above the pool deck;
(v) inaccurate representation of tree screening;
(vi) insufficient information to determine whether the proposed tree screening and landscaping was safe or could be carried out and maintained;
(d) it knew, or should have known, that the changes in application 3 did not address all the matters in the judgments of the Court on earlier appeals.
(e) it denied the legitimate expectation of Mr & Mrs Hortis as objectors and adjoining landowners to be given the right to be heard and respond to technical and other material supplied to Council by or on behalf of the second respondent in support of applications 3 and 4.

175. The evidence presented to the court does not support this Challenge. My reasons follow:

(a) the Council pre-determined to approve Application 3

No evidence was adduced to substantiate this claim.

(b) the Council was biased

No evidence was adduced to substantiate this claim.

(c) the Council knew it could not properly consider the application

This claim is very similar to that which has already been addressed and dismissed in Challenge 5 (see particularly (d), (e) and (f)).

The evidence before the Court is that both the Council and McCarthy were well aware of the site from recent site inspections. Accordingly, any inaccuracies in the plans did not prevent them from properly assessing the site or the development.

(d) the Council knew that the changes in Application 3 did not address all the matters in the judgments of the Court in earlier appeals

I refer to my comments in Challenge 3 above and find that this claim is not proved.

(e) legitimate expectation to be heard on Mailman’s further submissions

Hortis claims that:
- in respect to Applications 1 and 2, as objectors and adjoining landowners, they were given the opportunity to see all matters accompanying the application, including expert reports, and given the opportunity to provide Council with expert information on it
- submissions (including technical material) were supplied to the Council by or on behalf of Mailman;
- they were not made aware of, nor given the opportunity to make a reply to, those submissions after the applications were initially made available to them for inspection and comment;
- they had a legitimate expectation of being given the opportunity to respond to Mailman’s submissions; and
- this opportunity was, in breach of procedural fairness, not granted by the Council.

Mr Hemmings relied chiefly on the decision of Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88. With respect, I do not think that this case assists his submissions. I refer specifically to the following passage from the judgment of Stein J (at 94):

From an examination of the legislative framework, it seems to me that the legislature has effectively precluded any room for implication of the requirement of the giving of notice and the right to be heard in applications such as the present one. Nor do I think that such an implication arises from the common law, particularly in the light of the administrative practice of council. Therefore, whilst consent of the council is required, in my opinion it is under no obligation to give notice or grant a right to be heard.

Mr Jackson for the Council reminded the Court that there is no statutory or other requirement binding Council to provide objectors with supplementary reports. Mr Jackson also points out that there is no evidence before the Court of any such practice that would give rise to such a legitimate expectation.

Mr Thompson for Mailman points out that Mr and Mrs Hortis had made their objections very clear, and there is no evidence before the Court that the Council had adopted a policy of providing objectors the opportunity to respond to any submission made “ in reply ” by the applicants for consent.

In my judgment, Hortis cannot have had such a legitimate expectation. I can find no evidence to support a finding of a reasonable expectation to be heard.
It follows that the rules of procedural fairness have not been breached and, consequently, this challenge must fail.

11.10 Challenge 10: Unreasonableness

176. Hortis also asserted (POC 28) that the Council’s decision was for all of the above reasons “manifestly unreasonable” .

177. It is well established that the consent of manifest unreasonableness in administrative law is extremely confined ( Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 36). It is also recognised that “ a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest is exceed its supervisory role by reviewing the decision on its merits ” ( Peko-Wallsend at 42 per Mason J).

178. Hortis alleges manifest unreasonableness, based on the following facts and submissions:

- the combined effect of the LEP and the DCP may result in the prohibition of the development;
- it was not open to the Council, on the material available, to determine the application otherwise than by its rejection;
- the McCarthy report was misleading, erroneous and omitted relevant accompanying material;
- Moore, the assessing officer for Applications 1 and 2, and Johnson, Council’s landscape architect, supported Council refusal in the previous appeals and were not called upon to participate in the processing of Applications 3 and 4, nor in this hearing;
- the issue of soil depths was not dealt with;
- the need for new retaining walls was not assessed, despite the criticisms of Moore, Johnson and Assessor Bull, and Council’s engineers were not requested to assess the adequacy of the existing retaining walls; and
- Council was diverted from asking itself the relevant questions posed by the LEP.

179. This comprehensive list of complaints, even if justified, does not, in my opinion, establish unreasonableness to the level required for the grounds of “manifest unreasonableness” to be made out. In forming my opinion, I have had close regard to the quite stern warnings given by Mason J in Peko-Wallsend , and it follows that this point of claim must also fail.

(12) Should relief be granted - Discretion?

180. I conclude that the Council failed in its statutory duty to form the opinions required by cl 10 and cl 17 of the LEP, in breach of s 91(2) of the EP&A Act. It follows that the consent granted to DA 72/98 (Application 3) is invalid.

181. Mr Hemmings made submissions that the court should not rely on its discretion to deny Hortis relief. He asserts that there can be no balance of convenience in favour of the respondents in this case, and that in the event that Council is found to be in breach of its statutory duty in the determination of the development applications, the Court should make the declarations sought. Council can then proceed to determine the application according to law. There is, therefore, clear utility in the court’s making the first declaration sought.

(13) Conclusion

182. As the “ underpinning ” development consent is to be declared void, it must follow that the building approval and approved modification, which both depend upon it, also fail. The Council must then make relevant decisions regarding the Mailman project, according to law.

183. I will, therefore, make the three appropriate declarations. Clearly Hortis is prima facie also entitled to have an order for costs , but I will formally reserve the question in case the parties cannot agree upon the matter. In case some additional orders might be thought appropriate I will also grant the parties liberty to apply.

(14) Orders

184. Accordingly, the orders of the Court will be:

CITATION:	Hortis v Manly Council & Anor [1999] NSWLEC 151
PARTIES	APPLICANT Edison Hortis
FIRST RESPONDENT Manly Council SECOND RESPONDENT Gregory R Mailman
NUMBER:	40188 of 1998
CORAM:	Sheahan J
KEY ISSUES:	Judicial Review :- bias, construction and interpretation, discretion, legitimate expectation, manifest unreasonableness, relevant/irrelevant considerations
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Land & Environment Court Act 1979 Local Government Act 1993 Manly Local Environmental Plan 1988 Manly Development Control Plan for the Residential Zone 1986
DATES OF HEARING:	02/15/1999; 02/16/1999; 02/17/1999; 03/16/1999; 03/31/1999
DATE OF JUDGMENT DELIVERY:	07/02/1999
LEGAL REPRESENTATIVES:	APPLICANT SOLICITORS Mr N Hemmings QC of Allen Allen & Hemsley FIRST RESPONDENT SOLICITORS Mr P Jackson of Pike Pike &Fenwick SECOND RESPONDENT Mr A J J Thompson, Barrister SOLICITORS Mr J Doyle of Eakin McCaffery Cox

[1999] NSWLEC 151

02/07/1999