Jammal v Parramatta City Council
[2001] NSWLEC 7
•02/12/2001
Land and Environment Court
of New South Wales
CITATION: Jammal v Parramatta City Council [2001] NSWLEC 7 PARTIES: APPELLANT
RESPONDENT
Parramatta City Council
JammalFILE NUMBER(S): 10207 of 2000 CORAM: Cowdroy J KEY ISSUES: Section 56A Appeal :- appeal against council’s refusal to grant development consent - appeal conducted upon specific issues - Senior Commissioner allowing appeal but without providing reasons in respect of identified issues - whether finding of Senior Commissioner constituted an error of law - duty to provide reasons - appeal upheld LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 56A CASES CITED: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367;
Hope v Bathurst City Council (1980) 144 CLR 1;
Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639;
Misfud v Campbell (1990) 21 NSWLR 725;
Martin & Spork Pty Limited v South Sydney City Council (1999) 103 LGERA 213;
Randwick Municipal Council v Manousaki (1988) 66 LGERA 330;
Randwick Municipal Council v Crawley & Ors (1986) 60 LGERA 277;
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;
Westport Marina v Concord Council (2000) 109 LGERA 451;
Seaforth Services Pty Ltd v Byron Shire Council [No 2] (1991) 72 LGRA 44;
Saxer v North Sydney Municipal Council (1988) 64 LGRA 203DATES OF HEARING: 22/01/01 DATE OF JUDGMENT:
02/12/2001LEGAL REPRESENTATIVES:
APPELLANT
Mr A Galasso (Barrister)SOLICITORS
Harris & Company SolicitorsRESPONDENT
SOLICITOR
Mr P Tomasetti (Barrister)
Storey & Gough
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 10207 of 2000
CORAM: Cowdroy J
DECISION DATE: 12-02-2001
v
Parramatta City Council
Introduction
1. This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 by Parramatta City Council (“the appellant”) with respect to a decision made by Senior Commissioner Jensen on 8 August 2000 (“the judgment”). The judgment upheld an appeal by Jim Jammal (“the respondent”) in respect of the appellant’s rejection of a development application for the erection of seven three bedroom townhouses upon land known as 5/7 Baronbali Street, Dundas (“the site”).
2. The ground relied upon in support of the appeal is as follows:-
The Learned Commissioner erred in law in that he failed to deal with the substantial issues of overshadowing and insufficient courtyards and made his decision without having regard to the evidence and submissions relating to those issues.
3. The site is affected by the provisions of the Parramatta Planning Scheme Ordinance and by the Parramatta Local Environmental Plan No 174 (“LEP 174”). Pursuant to the provisions of LEP 174 medium density housing is permissible with the consent of the appellant council.
4. The aims and objectives of LEP 174 are stated in paragraph 2 as follows:-
2. This plan aims to provide for types of medium density housing which are in sympathy with conventional detached dwelling-houses while maintaining the existing character and amenity of residential neighbourhoods in order to enable population increase in certain neighbourhoods in the Granville and Parramatta Wards to promote better use of existing services and land resources.
5. The Parramatta City Development Control Plan for Villa Home and Townhouse Development In Parts of Parramatta and Granville Wards (“the DCP”) applies to the site and provides certain controls for development such as that proposed. For example, in respect of the design guidelines, paragraph 5 of the DCP requires particular attention to be given to a number of matters, including:-
The layout of developments incorporating townhouses to avoid overshadowing and overlooking of adjoining private courtyard areas and the rear yards of adjoining properties.
Paragraph 6 thereof deals with landscaping and provides, inter alia:-
Total site landscaping is to be provided at the rate of 70 square metres per dwelling unit. Landscaped areas are to be provided in the form of private areas for each dwelling, such as courtyard area and as common open space. Each dwelling shall be provided with adequate private landscaping area.
…
Existing trees are, where possible and appropriate, to be retained and incorporated into the on-site landscaping.Paragraph 10 of the DCP provides:-
Dwellings should be oriented or designed to minimise exposure to summer heat but to obtain adequate winter sun. Living areas should be positioned on the northern side of the dwelling where possible.
The Hearing
6. The hearing before Senior Commissioner Jensen occurred over three days in August 2000 and the challenged judgment was delivered ex tempore on the final day of the hearing. During the course of the hearing extensive evidence was led by both parties upon matters raised in the statement of issues.
7. Such issues related inter alia to the internal amenity of the proposed development, including the loss of privacy resulting from one townhouse overlooking another, solar access to the courtyards of various townhouses, and whether the objectives of LEP 174 would be satisfied. Detailed evidence was led on on each issue. Other issues related to the alleged overdevelopment of the site, which in turn raised issues concerning design guidelines and landscaping.
The judgment
8. The judgment of the learned Senior Commissioner consists of 23 paragraphs. The first ten paragraphs deal with matters of a general nature and paragraphs 11 to 16 inclusive relate to the matters detailed in evidence.
9. Paragraph 11 to 16 provides as follows:-
11. In my opinion, having looked at the development as it has finally finished up before the Court, I am quite satisfied that a satisfactory relationship to the surroundings has been achieved and one could say with a reasonable degree of conviction that what has been achieved is a sympathetic proposal in the light of the surroundings.
12. In that context I am quite satisfied that the development application will not adversely impact on the existing residential character and the housing as it is to be seen in this area will remain exuding the same character as is presently the case.
13. It is perhaps appropriate to mention that the late inclusion of some trees in the central courtyard is seen as a subtle but important change and certainly helps to soften the relationship of the development to its surroundings. However, as the end point and notwithstanding resident antipathy and the council’s efforts to characterise the development application as inconsistent with LEP 174, I am not satisfied that this is indeed the case.
14. I should say that in particular the three dimensional form of this development and the setbacks, not only at the ground floor but at the upper floor, seem to invoke the notion of three large related houses on the land which is in my opinion entirely the correct sort of character to be achieving.
15. It is appropriate to note that the total land area is substantial and in other parts of Sydney and might well be seen as able to accommodate four large houses and again that seems to me to be a relevant consideration in an area which in the longer term is very likely to change.
16. As the existing one storey houses in Dundas are expanded or rebuilt or demolished and converted into two storey accommodation, it is clear that not only will there be the sympathy which I have already defined but there may, at a later time, be a degree of similarity with what is developing in that part of Sydney.
The appellant council’s submissions
10. The appellant submits that the Senior Commissioner failed to provide adequate reasons on substantive issues, namely on overshadowing, lack of solar access and insufficient courtyards for the proposed townhouses and that no reasons were given by the learned Senior Commissioner in support of the finding that the open space was adequate. It submits that each of these failures is an error of law requiring referral of these specific issues to the Senior Commissioner since they were identified as matters for determination, were the subject of detailed evidence and submissions.
The respondent’s submissions
11. The respondent acknowledges that the issue of courtyard sizes and solar access were issues for determination by the Senior Commissioner, but submits that the judgment adequately deals with those issues. The issue of solar access and amenity was not, the respondent submits, issues which were ‘critical’ in the course of the hearing and accordingly it was not necessary for the learned Senior Commissioner to provide fully detailed reasons (see Martin & Spork Pty Limited v South Sydney City Council (1999) 103 LGERA 213 per Pearlman CJ at 216 and Westport Marina v Concord Council (2000) 109 LGERA 451). The respondent maintains that the hearing was conducted with greater emphasis directed to compatibility of the development with the aims of the planning instruments and impact of the proposal upon the streetscape.
12. The respondent submits that the appeal cannot succeed without evidence that the adjudicator has ‘misdirected himself’’, that is ‘has defined other than in accordance with the law the question of fact which he has to answer’ (see Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Randwick Municipal Council v Manousaki (1988) 66 LGERA 330 at 333). The Senior Commissioner has, it is submitted, answered the various questions and resolved the divergent opinions according to the law, and no error of law arises. The ‘fine comb’ approach is unwarranted (see Randwick Municipal Council v Crawley & Ors (1986) 60 LGERA 277 at 284). The respondent says that there is no need for commissioners’ decisions to be read ‘as if they were written by a lawyer’ see Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 per Kirby P at 368.
Findings
13. In reading his judgment it is apparent that the Senior Commissioner was convinced, at least in the relationship to the surrounding development, that the development proposal was acceptable and would not adversely impact upon the existing residential character of the area. However there is an absence of reasons concerning other specific issues. Whilst the respondent submits that such issues were not critical to the determination they were clearly identified in the statement of issues and were fully argued. As such they required adjudication through the exposition of relevant reasons (Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639; Misfud v Campbell (1990) 21 NSWLR 725).
14. In Kiama Constructions Pty Ltd v Davey the two competing principles relevant to this appeal were examined by the New South Wales Court of Appeal. The first principle was explained by Mahoney P at 642 as follows:-
…it must be borne in mind that the judgment of a court -more accurately, the document in which it sets out its reasons for its orders- is essentially a professional working document. In the ordinary case, it is not written to record the history of the proceeding or of what happened between the parties. It will be seldom, I think, that those who have been concerned in the case will be in real doubt as to why the judge decided as he did ’
That is, that the judgment should not be examined for the exposition of every possible reason for the ultimate decision.
15. The second principle was noted earlier in the decision of Mahoney P in Kiama Constructions where at 640 His Honour said:-
The general principles are clear. A judge of a superior court and a court where decisions are subject to appeal or review ordinarily should give reasons for the orders he makes…Where reasons are to be given, it is necessary for the court to determine what is a sufficient statement of the reasons why its orders were made. What will be sufficient reasons will depend, of course, upon the reason why it is necessary to detail them and the circumstances of the particular case…the court must have regard to the need of the parties to know what will affect their rights of appeal or review, the natural desire of parties to know why they have won or lost, and in some cases why the particular orders that were made were made.
That is, despite the principle that the judgment need not lay down every possible reason for the order given, the parties to the adjudication are entitled to sufficient reasons for the orders that are given.
16. These two competing principles are regulated by the overriding concern expressed by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 wherein His Honour said:-
If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done ’ (emphasis added).
That is, the sufficiency of reasoning will depend on the reasons needed for justice to be seen to be done. Reasons for the determination of critical issues raised in the dispute are obviously required ( Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451), as are sufficient reasons to enable the parties to ascertain their rights of appeal ( Soulemezis v Dudley (Holdings) Pty Ltd ). Further parties are also entitled to sufficient reasons for any order made by the Court so that, as noted by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd , litigants can be certain that the dispute has been decided in accordance with the rules of law and that the appropriate rules or principles have been applied by the adjudicator which is demonstrated through the exposition of his or her reasons. His Honour said at 278:-
To give effect to these assumptions a judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles. A decision which is made arbitrarily can not be a judicial decision; for the hallmark of a judicial decision is the quality of rationality: cf Lord Denning, Freedom Under the Law (149) at 91. However, without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
Thus while it is important to acknowledge that a decision of a lay commissioner should not be read with a ‘ fine tooth comb ’ ( Randwick Municipal Council v Crawley at 283) the duty to give reasons complements the function of adjudication. In Saxer v North Sydney Municipal Council (1988) 64 LGRA 203 Bignold J held that the principles expanded in Soulemezis are applicable to the commissioners of this Court when exercising the judicial functions delegated to them. In Seaforth Services Pty Ltd v Byron Shire Council [No 2] (1991) 72 LGRA 44 at 47 Hemmings J said.
The assessor was under no obligation to make explicit findings on all disputed evidence or issues. However, there is an inherent duty in any judicial process to give adequate reasons, particularly in the exercise of a discretion in appellate review such as this which is final: Soulemezis v Dudley (Holdings) Pty Ltd …Whilst conciseness is always to be encouraged, the reasons must make it clear that the assessor had the relevant evidence in mind and identify the grounds for the determination.
17. In this case, where the Senior Commissioner allowed the appeal from a decision of the Court the council was entitled to have reasons for the reversal of its decision to enable it to comprehend the judgment and to be satisfied that justice was done. Accordingly, the appeal is upheld and the proceedings will be remitted to the learned Senior Commissioner.
Orders
18. The Court orders:-
1. The appeal be upheld.
2. The judgment of Senior Commissioner Jensen dated 8 August 2000 be set aside.
3. The proceedings be remitted to Senior Commissioner Jensen.
4. Costs reserved.
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