JPR Legal Pty Ltd v Marrickville Council

[2009] NSWLEC 156

Land and Environment Court

of New South Wales

CITATION:	JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 156
PARTIES:	APPELLANT JPR Legal Pty Ltd RESPONDENT Marrickville Council
FILE NUMBER(S):	10459 of 2008
CORAM:	Pain J
KEY ISSUES:	APPEAL :- section 56A appeal from decision of commissioner refusing development consent for hotel - whether grounds of appeal raised question of law - whether delay in written reasons being delivered - whether inadequate consideration of appellant's parking evidence in written reasons - whether inadequate consideration of appellant's social impacts evidence in written reasons - whether consideration of social impact assessment beyond scope of s 79C - appeal dismissed
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C Land and Environment Court Act 1979 s 56A Liquor Act 2007
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Beale v GIO of NSW (1997) 48 NSWLR 430 Botany Bay Council v Farnworth Holdings Pty Limited [2004] NSWCA 157 CSR Limited v Della Maddalena (2006) 80 ALJR 458 Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407 Cross v Queensland Newspapers Limited [2008] NSWCA 80 Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FCR 17 Fabcot v Hawkesbury City Council (1997) 93 LGERA 373 Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275 Hadid v Redpath [2001] NSWCA 416 JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 1216 Mifsud v Campbell (1991) 21 NSWLR 725 Pollard v RR Corporation Pty Limited [2009] NSWCA 110 R v Maxwell (1998) 217 ALR 452 Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 Segal v Waverley Council (2005) 64 NSWLR 177 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Waugh Hotel Management Pty Limited v Marrickville Council (2007) NSWLEC 775
DATES OF HEARING:	7 September 2009
DATE OF JUDGMENT:	10 September 2009
LEGAL REPRESENTATIVES:	APPELLANT Mr T Hale SC with Ms V Culkoff SOLICITORS JPR Legal RESPONDENT Mr M Wright SOLICITORS Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 September 2009

10459 of 2008 JPR Legal Pty Ltd v Marrickville Council

JUDGMENT

1 Her Honour: JPR Legal Pty Ltd applied to Marrickville Council for consent to develop the premises known as 252-254 Illawarra Road, Marrickville, for the purposes of a hotel. The premises are in the Marrickville Shopping Centre. Following a deemed refusal by the Council Class 1 proceedings were commenced and heard by Murrell C. This is an appeal under s 56A of the Land and Environment Court Act 1979 in relation to the decision of the Commissioner in JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 1216 to dismiss the Class 1 appeal.

2 In November 2007 Jagot J and Hoffman C refused a similar development on the same site (Waugh Hotel Management Pty Limited v Marrickville Council (2007) NSWLEC 775). The Marrickville RSL Club closed on 31 December 2007 and the Appellant lodged a new development application for the same development in view of that changed circumstance. The Class 1 appeal proceedings were heard on 15 and 16 December 2008. Evidence on parking was provided by a single expert, Mr McLaren, who considered the reports of two traffic engineers which were provided in the original Class 1 appeal before Jagot J and Hoffman C. On social impacts, the Council relied on a report of a consultant social planner, Dr Stubbs and the Appellant relied on a report of a consultant social planner, Ms George. By 13 March 2009 a further change in circumstance occurred with the imminent sale and closure of the ANZAC Memorial Club in the locality. For this reason the Applicant sought and obtained leave to reopen its case to establish the relevance of this change. This was considered on 13 March 2009 and 1 April 2009 and fresh evidence was tendered. Judgment was delivered on 31 July 2009.

3 The statement of appeal grounds of this s 56A appeal are

PARKING

SOCIAL IMPACT

4. The Commissioner erred:
(a) In taking into consideration an irrelevant matter namely that a hotel(or other liquor outlet) should not be permitted in the locality of the subject site because the locality was “within a socially disadvantaged catchment area” and because of the proximity of the subject site to “a rate of crime density as shown if figure 5 for non domestic alcohol related assaults”.
(b) In admitting into evidence the Statement of Evidence of Judith Stubbs: exhibit 5.

DELAY

7. Having delayed giving judgment for 71/2 months the Commissioner erred in failing to give a sufficiently comprehensive statement of her reasons as would manifest that the delay had not altered her decision and consideration of the evidence and submissions.

4 The grounds as articulated by the Appellant in oral submissions were in somewhat different terms to the grounds of appeal filed. As drafted not all the grounds disclose an error of law, which is required for a s 56A appeal.

Appellant’s submissions
Delay

5 The principal ground of appeal is ground 7 dealing with the delay of seven and a half months between delivery of the judgment on 31 July 2009 and the matter being reserved on 16 December 2008. This has resulted in the Commissioner erring by failing to give a sufficiently comprehensive statement of reasons. There is “operative delay”, as referred to in Hadid v Redpath [2001] NSWCA 416 at [34] and this gives rise to the problems identified by the Full Federal Court in Expectation Pty Limited v PRD RealtyPty Limited (2004) 140 FCR 17 at [74]. Commissioners of the Court have the same duty to give reasons as judges, per Ipp JA in Botany Bay Council v Farnworth Holdings Pty Limited [2004] NSWCA 157 and Tobias JA in Segal v Waverley Council (2005) 64 NSWLR 177. This is particularly so in relation to expert evidence, per Cross v Queensland Newspapers Limited [2008] NSWCA 80, Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373, and Pollard v RR Corporation Pty Limited [2009] NSWCA 110. The delayed delivery of judgment suggested that the Commissioner had lost understanding of the issues. A failure to consider all relevant evidence is a breach of judicial duty; Beale v GIO of NSW (1997) 48 NSWLR 430.

6 While the mere passage of time is not sufficient on its own to found a ground of appeal, in the context of this case there was a concern that the Commissioner’s assessment of evidence at the hearing would be lost or dissipated. No transcript was before the Commissioner when she wrote her judgment. R v Maxwell (1998) 217 ALR 452, Hadid and Expectation all confirm that delay can give rise to consideration on appeal of the adequacy of reasons given due to the time since the hearing and the need to demonstrate that all relevant evidence has been considered.

7 Significant facts and arguments were ignored in the judgment, the most significant being the failure of the Commissioner to address the primary issues raised in relation to parking and social impact. The Commissioner has failed to provide adequate reasons and has not explained in her judgment why she rejected the evidence of one expert over another, as she is required to do; CSR Limited v Della Maddalena (2006) 80 ALJR 458 at [110].

Parking – grounds 1, 2 and 3

8 The Council contended in the Class 1 appeal that there was insufficient on-street parking in the locality to cater for the demand generated by the proposed development and this would adversely impact on the businesses and residents surrounding the site. Mr McLaren was engaged as the parties’ single expert on parking. Parking surveys were undertaken in 2008 by Mr Coady and these were referred to extensively in Mr McLaren’s evidence and in the hearing as identified in the unofficial transcript of the hearing prepared by the Appellant. Mr McLaren also visited the site on four occasions. His conclusion was:

…the proposed development is supportable on parking grounds, particularly in view of increased parking availability during weekday afternoon periods due to the closure of the Marrickville RSL Club.

9 The Commissioner concluded at [88] that in her assessment the site was not suitable for the proposed hotel because of the inability to provide any patron parking on site. This conclusion is unsound because the Commissioner does not address Mr McLaren’s conclusion that the additional parking demand would only be three cars, based on Mr Hallam’s assessment in the busiest period of weekday afternoons, and that this extra demand could be accommodated with minimal impact. Mr Coady’s figures concerning peak demand which were referred to by Mr Hallam did not show any increase in demand and this conclusion was not addressed by the Commissioner. There are no reasons given for rejecting the conclusions of Mr McLaren which are set out in the judgment at [26]. The Commissioner also incorrectly states there were no new parking surveys since the closure of the Marrickville RSL Club on 31 December 2007 at [73], [75] and [77]. Mr McLaren had considered the 2008 parking surveys in his conclusions and had made observations on four separate occasions. The Commissioner also rejected the conclusion that no on-site parking was justified and the Applicant submits that this conclusion was irrelevant because the issue was only whether car parking in the shopping centre would be available. Finally the Commissioner was diverted from the relevant issue by seeking to assess the increased availability of car parking in Marrickville as a result the closure of the Marrickville RSL Club which was not a relevant issue. The relevant question was what impact the hotel would have on public parking on weekday afternoons.

Social impact - grounds 4, 5 and 6

10 Three errors of law were identified in oral submissions in relation to the consideration of social impact assessment in the Commissioner’s decision. These do not overlap entirely with the grounds of appeal. First (issue 1), the Commissioner took into account an irrelevant consideration in considering all the evidence of the Council’s expert Dr Stubbs as that included evidence concerning the general impact of alcohol related problems. Dr Stubbs did not identify any likely impacts from this hotel proposal in this locality. This fell outside the scope of s 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (also ground of appeal 4). The Appellant’s expert Ms George gave evidence which was within the scope of s 79C(1)(b) but this was not referred to in any way. Ms George identified the use of a plan of management as a means of dealing with social impact issues but there is no reference to that in the judgment. That the issues raised by Ms George’s evidence are central to the Appellant’s case before the Commissioner is clear from her report and from the transcript of counsel’s submissions before the Commissioner (to which I was taken in some detail in argument)

11 Dr Stubbs stated that the demographic of the area within 300m of the proposed hotel means that the people in that area are more vulnerable but the relevant question for consideration is what is the impact of the proposed hotel. Just because there is a particular demographic in that area does not mean that the impact of the development is not acceptable. The Commissioner ignores the Appellant’s argument in her judgment.

12 Second (issue 2), the Commissioner failed to refer to the Appellant’s argument that the evidence of Dr Stubbs raised matters that did not come within s 79C(1)(b) at all in her judgment. She therefore fails to refer to an important issue before her and given the delay in the delivery of judgment there is a greater need to provide reasons as to why she did not.

13 Third (issue 3), the Commissioner’s approach and acceptance of Dr Stubbs’s evidence is not in accordance with the requirement to assess social impacts pursuant to s 79C(1)(b). Section 79C(1)(b) requires an assessment of the likely impacts of the proposed development on the locality which requires an identification of the particular features or characteristics of the development under consideration and the likely impacts this might have in the locality. This is because s 79C is concerned with impacts concerning planning or environmental considerations, per Fabcot v Hawkesbury City Council (1997) 93 LGERA 373 and Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407. As identified in those cases in relation to assessment of economic impacts there are limits on the extent of that assessment. There should also be limits on social impact assessment required under s 79C(1)(b). The evidence of Dr Stubbs addressed matters at a level of generality higher than that of planning and environmental considerations, whereas Ms George’s evidence did not. The broader issue of the social impacts of alcohol referred to by Dr Stubbs are to be considered under the Liquor Act 2007 rather than the EP&A Act.

14 Grounds 5 and 6 of the appeal refer to the failure of the Commissioner to refer to the evidence of Ms George adequately and, further, why that evidence was not accepted by the Commissioner.

Council’s submissions

15 An almost identical application was determined by Jagot J and Hoffman C in Waugh Hotel Management with refusal of the application. The issues raised in this Class 1 appeal by the Council were parking and alcohol related social impact. The only material change between these proceedings and the first appeal was the closure of the Marrickville RSL Club and subsequently the Anzac Memorial Club (the subject of the application to reopen by the Appellant). No question of law was raised before the hearing concerning the scope of operations of the Liquor Act in so far as the assessment of alcohol related social impacts was concerned, as there was in the first appeal.

16 Appeals under s 56A are related to questions of law only, not merit. A finding of fact cannot be considered in a s 56A appeal. Nor is a fine tooth comb approach to the Commissioner’s decision appropriate. Grounds 1, 2, 4 and 5 invite the Court to embark on an impermissible merits review of the Commissioner’s decision.

Delay

17 There has not been a delay of seven and a half months given the Appellant’s application to reopen its case which resulted in a final day of hearing in April 2009. In R v Maxwell the Court of Criminal Appeal held at 462 that delay alone is not a ground of appeal. Heydon JA did not adopt the words “operative delay” in Hadid, rather he was summarising the appellant’s submissions. His Honour did not decide the issue of delay in that matter. The Appellant’s argument in this case appears to be that delay required the Commissioner to give more detailed reasons and that failure to do so gives rise to a miscarriage of justice. That assumes the Commissioner’s reasons are otherwise inadequate but they are not.

Failure to give adequate reasons - parking

18 The question whether the Commissioner failed to give adequate reasons will be dealt with under each issue below. However, it is necessary to first identify the principles to be applied in determining what constitutes the content of an adequate statement of reasons where there is only an appeal on a question of law. The Council relied on McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 to the effect that the failure to state a finding of fact is not an error of law unless it is a breach of the principle that justice must be seen to be done.

19 The Commissioner considered parking as the Council’s contention required as identified in the judgment at [13]. The issue was failure to accommodate on-site the parking demand from the proposed development. The Commissioner referred extensively to Mr McLaren’s evidence. She also refers extensively to the material prepared by Mr Coady for the Appellant and to the material prepared by Mr Hallam as the parties’ single expert in Waugh Hotel Management. The Appellant tendered Mr Hallam’s report from the first appeal (exhibit H). In making her findings the Commissioner discusses Mr McLaren’s evidence in detail. The Commissioner did not accept Mr McLaren’s opinion and explained her reasons for not doing so. She refers, accurately, to the oral evidence given by Mr McLaren in explaining why she did not accept his evidence.

20 The Commissioner:

(i) Accepted that the closure of the Marrickville RSL Club and the ANZAC Memorial Club represented a changed circumstance but rejected the appeal on the merits;

(ii) Concluded correctly that no surveys were conducted for the Marrickville RSL Club itself;

(iii) Found that Mr McLaren’s conclusion that there was increased parking availability on weekday afternoons was not supported by the evidence. In making that finding the Commissioner refers expressly to documentary material in the evidence relating to parking from development approvals for the Marrickville RSL Club (exhibit 15);

(iv) Accepted that the rates in DCP 19 were excessive but otherwise had proper regard to the aims and objectives of the DCP;

(v) Expressly acknowledged the fact that Mr McLaren visited the area on a number of occasions but concluded correctly that his report did not contain a robust analysis or survey of the critical period between 2pm and 5pm when parking demand for shopping was at a peak;

(vi) Rejected Mr McLaren’s conclusion (based on Mr Coady’s 2008 surveys) that parking within a 400m radius of the site should be taken into account in determining available parking;

(vii) Quoted directly and rejected Mr McLaren’s central conclusion “that the proposed development is supportable on parking grounds, particularly in view of the increased parking availability during weekday afternoon periods due to the closure of the Marrickville RSL Club” and explains her reasons for that rejection;

(viii) Stated succinctly that she was not persuaded that Mr McLaren’s conclusion was supported by his limited analysis;

(ix) Concluded (by direct reference to the parking issue in the contentions) that she was not satisfied that the evidence provided to the Court justified the failure to provide parking on-site in the circumstances of the case and was antipathetic to the aims and objectives of the DCP.

21 These are pure findings of fact explained in detail in the judgment. The Commissioner’s reasons were clear on the parking issue. That Mr McLaren’s view was that only three parking spaces were required is not to the point. This was a pure question of fact and the Commissioner rejected Mr McLaren’s conclusion on the evidence. This cannot be reviewed in this s 56A appeal.

Failure to give adequate reasons – social impact

22 The documentary expert evidence before the Commissioner on this issue was extensive. The areas of agreement and disagreement between Dr Stubbs, for the Council, and Ms George, for the Appellant, were succinctly set out in their joint report (exhibit 6 in the proceedings before the Commissioner).

23 Critically, both experts agreed that the primary catchment within a 300m radius of the subject site is more important in an assessment of social impact than the secondary catchment within a 1km radius of the site. As with the parking issue, the Commissioner refers extensively to relevant evidence from both of these experts. Her reasons disclose a careful and balanced analysis of the expert evidence. The Commissioner’s analysis demonstrates that she understood the issue raised and the evidence given in relation to it.

24 The Commissioner’s reasons for preferring Dr Stubbs’s evidence over Ms George’s are plain from the judgment. It is not correct to say that she “rejected” Ms George’s evidence. In some respects she accepted Ms George’s opinion. Critically, Dr Stubbs gave a much more detailed assessment of the census data.

25 Having analysed the evidence, the Commissioner’s conclusion was that the proposed hotel did not satisfy the objectives of s 5(a)(i) and (ii) of the EP&A Act or the general objectives of the Marrickville LEP.

Section 79C(1)(b) of the EP&A Act

26 The principal attack on the Commissioner’s findings relates to the claimed irrelevance of Dr Stubbs’s evidence to a merits assessment under s 79C(1)(b) of the EP&A Act. If Dr Stubbs’s evidence was inadmissible on this ground so was Ms George’s. If the Appellant is correct on this basis then Jagot J’s judgment in Waugh Hotel Management is fundamentally flawed for the same reason.

27 The parties are bound by the way they conducted the hearing, and there was no objection at the hearing to that part of the evidence of Dr Stubbs the subject of criticism in these proceedings. Ground 4(b) raises the issue of admisibility into evidence of Dr Stubbs’s report but no objection was taken at the hearing. Limited objections were made to Dr Stubbs’s report at the time it was tendered. No objection was taken to Dr Stubbs’s report on the basis of relevance at the time the report was tendered. It was not open to the Appellant to object to the admission of that evidence on relevance at the conclusion of the hearing before the Commissioner, any more than it is open to the Appellant to raise the matter now on appeal.

28 The Appellant’s submission to the Commissioner and on this appeal confuses the economic impact of a development with its social impact. The evaluation of development applications would be seriously truncated if the assessment of social impact was to be limited in the manner suggested by the Appellant. There are strong suggestions in this submission of a policy complaint on behalf of a hotelier that councils (and the Court) are jurisdictionally excluded from any such assessment where alcohol is involved because of the operation of the Liquor Act. Legal questions of this nature were raised and rejected in Waugh Hotel Management. They were not raised before the Commissioner.

29 The Commissioner did not err in her merit assessment under s 79C any more than Jagot J did in the first appeal when her Honour concluded at [103]:

In consequence, the debate in this case about the risk of alcohol related harm by increasing the density of licensed premises in the centre of a particularly disadvantaged community weighed overwhelmingly in favour of the detailed analysis of Dr Stubbs. Accordingly, on the rather one sided evidence available in this case the risks of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community would be a further independent ground for refusal of this application.

30 The expert social planning evidence in this appeal was not as one-sided as it was in the first appeal. Dr Stubbs’s analysis was similarly detailed in these proceedings. The closure of the Marrickville RSL Club and the ANZAC Memorial Club did not dispel her concerns about the clustering of hotels in the primary catchment within 300m of the subject site. The Commissioner carefully assessed the expert evidence of both witnesses and concluded that she preferred the evidence of Dr Stubbs and that the development application should be refused. This was a finding of fact disclosing no legal error.

Finding

31 Grounds of appeal may only raise errors of law. Erroneous findings of fact or inappropriate or illogical inferences do not constitute an error of law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139). In her lengthy judgment the Commissioner describes the site and proposed development at [1]-[7], identifies the issues raised by the parties in the statement of contentions at [13], sets out the evidence of resident objectors at [22]-[24], sets out the evidence of the single expert appointed for the traffic and parking issues at [26] and [40]-[41], sets out the contents of the Statement of Environmental Effects prepared on behalf of the Appellant by Mr Coady at [27]-[29] and the evidence of Mr Hallam at [33]-[37]. The parties’ respective submissions on the expert evidence are set out at [38] and [42]-[45]. In terms of social impact the Commissioner sets out the evidence of the Appellant’s expert at [46]-[52], the Council’s expert at [53]-[63] and the contents of the joint statement and points of difference at [64]-[67]. The Commissioner’s findings commence at [68]. She deals with the parking issue at [70]-[79] and the issue of social impact at [82]-[93]. Six figures are annexed to the judgment showing the locality and relevant dimensions of the social planning evidence.

Delay

32 The Appellant relied on Hadid, Maxwell (a criminal case) and Expectation to argue that there had been delay in the delivery of judgment. The facts in those cases are quite different to the facts in this matter involving substantial delay in the delivery of judgment. In Maxwell (1998) a judgment convicting the appellant on a charge of murder was delivered by the trial judge ten months after the trial had concluded. The appellant appealed his conviction to the Court of Criminal Appeal on several grounds including that the trail miscarried by reason of the delay between hearing and verdict and that there was inadequate consideration of evidence and submissions. In considering whether the delay in delivering judgment amounted to the trial being miscarried, the judgment of Spigelman CJ, Sperling and Hidden JJ stated at 462:

Delay is not, however, of itself, a ground of appeal. Nor does the delay in and of itself indicate that the trial miscarried or that the verdict is in any manner unsafe. Nevertheless, a comparison between the judgment and the issues in the trial may indicate that the effect of delay has been such as to constitute a miscarriage of justice.

33 The court emphasised at 463 that delay creates an additional onus on the judicial officer to provide reasons:

…a delay of the order of 10 months is, of itself, such as to require a more comprehensive statement of the relevant evidence than would normally be required, in order to manifest, for the parties and the public, that the delay has not affected the decision. For the reasons we will give below, his Honour’s judgment is unsatisfactory in this regard. His Honour failed to give reasons of a character which the law required him to give in all the circumstances of the case, including the circumstance of the delay between the trial and delivery of judgment.

34 In Hadid a first instance judgment on a claim in negligence in relation to a motor accident was delivered approximately 12 months after the conclusion of the hearing. The judgment was delivered orally rather than handed down in writing. The appellant appealed to the Court of Appeal on the finding of liability. The appellant submitted that there was an “operative delay” which meant the trial judge was required to put beyond question any suggestion that he or she had lost an understanding of the issues and was obliged to demonstrate that all the facts had been carefully assessed. While an appealable error in the judgment was identified, Heydon JA (Stein JA and Grove J concurring) concluded that it was not necessary to decide whether the point on which the appeal succeeded was the result of delay as the error could have occurred regardless of when judgment was delivered.

35 In Expectation the first instance judgment was delivered 21 months after trial. The appellant appealed to the Full Federal Court on the ground that the reasons for the decision were inadequate given the delay. The judgment of Carr, Emmett and Gyles JJ accepted at [76] the term “operative delay”, which was raised in Hadid by the appellant, as being useful to describe delay where it “is incumbent upon the trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected…[and] to say why he or she prefers the evidence of one witness over the evidence of other witnesses” (at [69]). The Court considered the reasons for this requirement at [74]:

The problem is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure — whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction. As was recently said by the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149, in the course of a valuable review of the significance of delay in the delivery of judgments:
… a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues.

A new trial was ordered on the grounds that the primary judge ought to have carried out a more comprehensive statement of the evidence. It could not be assumed that the mere failure to refer to the evidence did not mean that it had been overlooked.

36 In relation to the circumstances of this matter, there has not been a delay of seven and a half months in the delivery of judgment and the submissions made to that effect are quite misleading. The Appellant sought to reopen its case following closure of the Anzac Memorial Club in the period after judgment was reserved on 16 December 2008. It was granted leave to do so and provided additional submissions and evidence on 13 March and 10 April 2009. There was no delay in giving judgment on 31 July 2009 in these circumstances such as to warrant any concern about “operative delay”. It follows that the particular concerns about the adequacy of reasons referred to in Maxwell, Expectation and Hadid do not arise here. The findings in Maxwell and Expectation as to the necessary approach of an appellate court to the giving of reasons where there has been delay do not apply in this matter.

37 Given that delay with a consequent requirement for more detailed reasons was a central plank of the Appellant’s grounds of appeal and has now fallen away, this finding impacts on most of the other arguments made by the Appellant, particularly in relation to the adequacy of reasons.

Adequacy of reasons

38 The Appellant’s submissions on the adequacy of reasons were focussed on the need to provide more extensive reasons because of the excessive delay, which ground I have rejected. I will deal briefly with the other submissions made on adequacy of reasons. The Appellant identified that commissioners of this Court have a duty to provide adequate reasons as identified in, inter alia, Segal v Waverley Council. The Appellant focussed on the particular need in this Class 1 appeal to consider expert evidence, referring to cases such as Cross, Flannery and Pollard. Cross provides little assistance as it deals with the proof of matters of truth in defamation proceedings and is entirely different from this matter. In Pollard the Court of Appeal was considering whether a trial judge had provided adequate reasons in an ex tempore judgment because he failed to refer to evidence that was critical to the issues in the case. McColl JA (Ipp JA and Bryson AJA concurring) referred to Samuels J in Mifsud v Campbell (1991) 21 NSWLR 725 and to Beale per Meagher JA where their Honours stated that a judge should refer to evidence which is important or critical to the determination of a matter. McColl JA also referred to Soulemezis per McHugh JA at [59] where he stated that it is necessary to enable the parties to identify the basis of the judge’s decision. At [58] McColl JA confirmed that the extent and content of reasons will depend on the particular case under consideration and the matters in issue citing, inter alia, Samuels JA in Mifsud (at 728). Similarly in Flannery the United Kingdom’s Court of Appeal stated that a judge must enter into the issues canvassed and explain why one case is preferred over another.

39 In light of the statutory context in a s 56A appeal, the Council relied on Soulemezis per McHugh JA at 281 where his Honour stated:

In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. 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.

40 While accepting that commissioners have a duty to give adequate reasons it is also important to be aware that commissioners are generally not legally trained and they cannot be expected to articulate reasons in the same manner or with the same content as judges. I have summarised above in par 31 the principal parts of the Commissioner’s judgment, which is lengthy and clearly set out. The Council submitted this was not an unusual matter and proceeded as such appeals usually do, except that the Appellant sought to reopen its case after the hearing and also provided lengthy written submissions at the hearing. The judgment suggests that is the case. One of the concerns raised by the Appellant was that the Commissioner did not have a transcript of the hearing when she wrote her judgment. As submitted by the Council, the Commissioner had the reports and joint reports of the experts before her and detailed written submissions from the Appellant and presumably her notes of the proceedings. I do not consider that concerns about lack of recollection by the Commissioner of important matters are warranted. As identified in the extract from Soulemezis in par 39 even if there is a failure to identify a crucial finding of fact (on the assumption that has occurred, about which I say more below) there will only be an error of law if there is a failure to accord justice to the parties. With these general principles in mind I will consider the particular grounds of appeal, whether written or oral.

Parking

41 At [13] the Commissioner set out the Council’s contentions on parking as:

1. The proposed development fails to provide sufficient on site car parking to cater for the demand that it will generate and as such will adversely impact on the limited available parking in the locality

42 The Commissioner addressed parking in her judgment on the basis of the Council’s contention set out above. The ground of appeal articulated in 1(a) incorrectly states that the parking issue which the Commissioner considered was not raised in the appeal. The Council’s contention clearly identified the parking issue was the inability to provide parking on site. It follows that the Commissioner could not have been in error as identified on this ground.

43 Ground of appeal 1(b) says the Commissioner erred in not considering particular evidence and findings of Mr McLaren in certain respects. That ground is not raising an error of law but appears to be criticising findings of fact made by the Commissioner in her judgment. That cannot be considered in this appeal.

44 In relation to the failure to consider in ground 2, as submitted by the Council the grounds of appeal in relation to parking relate to findings of fact by the Commissioner which cannot be the subject of a s 56A appeal. As identified in the Council’s submissions, there were a number of key findings on parking made by the Commissioner as set out in some detail in par 20 above. The Appellant’s counsel took some time in his oral submissions to identify errors in the Commissioner’s consideration of Mr McLaren’s evidence, particularly her apparent failure to refer to additional parking surveys of Mr Coady in 2008 by reference to Mr McLaren’s report and references in the transcript. Those submissions are also summarised above in par 9. Given that a great deal of time was spent at the hearing on this issue of adequacy of parking and that there is extensive reference to Mr Coady’s survey work throughout Mr McLaren’s written report and in his oral evidence before the Commissioner, it is inherently unlikely that the Commissioner would overlook such evidence if it was fundamental to her considerations. The failure to specifically refer to that evidence does not undermine that assumption.

45 In relation to ground 3 concerning the failure to give reasons, it is not required of the Commissioner that she refer to every part of the evidence she has been referred to during a hearing. Her reasons in the judgment canvass the evidence of Mr McLaren and she considers his conclusions in her assessment of the issues. In light of the statement of McHugh J in Soulemezis as set out in par 40, I do not consider there has been an omission of a finding of fact giving rise to a miscarriage of justice. I agree with the Council’s submission that the Appellant seeks to reargue impermissibly the case on parking on its merits. These grounds of appeal must fail.

Social impact

46 The parties’ social planning experts prepared separate reports (exhibit 5, Dr Stubbs, and exhibit F, Ms George, in the proceedings before the Commissioner) and then conferred and produced a joint report (exhibit 6). Dr Stubbs and Ms George both gave oral evidence. As identified by the Appellant Dr Stubbs’s evidence was that:

· Significant adverse impacts on the amenity of the Immediate Locality (300 metre radius), including adverse impacts on tangible and less tangible experiences of existing residents regarding the quality of life in their neighbourhood, and the reasonableness and factual basis of resident concerns about the proposed hotel in this locality;

· Likely exacerbation of existing social problems in the Immediate and Secondary Locality (one-kilometre radius) of the proposed hotel, including increased crime, family violence, and personal and family stress, which will be more acutely experienced by the high proportion of vulnerable residents in the locality.

47 The matters in the first bullet point were accepted by the Appellant as coming within s 79C(1)(b) but not those in the second bullet point. That section states:

(1) Matters for consideration—general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
…
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality

48 Issue 1 raised by the Appellant (par 10, also ground of appeal 4) is that the Commissioner took into account irrelevant evidence being the general evidence of Dr Stubbs concerning the impact of alcohol related social problems. As I hold below that such evidence can be considered under s 79C(1)(b) that contention falls away. The further complaint is that Ms George’s evidence concerning the particular impact of this hotel and the use of a plan of management to deal with any impacts was not referred to in the Commissioner’s judgment. Consideration of the judgment suggests that the Commissioner was aware of the social impact issues raised by the Council’s contention and determined the matter on the basis of the issues identified by the experts. That she did not do so on the basis the Appellant argues she should have is not a ground of appeal as it raises merit arguments. I also refer to the failure to refer to Ms George’s evidence below as it is raised in grounds 5 and 6.

49 Issue 2 (par 12) is whether the Commissioner failed to refer to the issue raised by the Appellant at the hearing that the evidence of Dr Stubbs was not able to be considered in the assessment under s 79C(1)(b). I was informed by the Council’s counsel that this issue was not raised in the hearing until the Appellant’s counsel’s final submissions before the Commissioner, after the evidence of Dr Stubbs had been given and considered in the proceedings. That was arguably too late to raise the legal question of the construction of s 79C(1)(b) for the first time. It should at the very least have been raised in opening submissions and, preferably, identified as a question of law well before the hearing so that a judge could have been assigned to the case, as occurred in Waugh Hotel Management. Given that this part of the evidence of Dr Stubbs was not objected to and was given before the Commissioner and the Appellant is bound by the conduct of the hearing, On one view that the Appellant is not able to raise the substantive issue in this appeal as it does in issue 3. I do not consider there has been a failure on the Commissioner’s part in not referring to that argument in the judgment given the circumstances. Even if there was a failure to refer to that argument, it has to be material and I do not consider that it was; Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275 at 280. I will consider the argument whether such evidence can be considered under s 79C(1)(b) in any event, being issue 3.

50 Issue 3 as raised by the Appellant (par 13) is that the scope of the assessment of social issues under s 79C(1)(b) is limited and does not include the social impacts identified by Dr Stubbs concerning alcohol use in disadvantaged communities (the second bullet point, par 46). This submission is contrary to the findings of Jagot J in Waugh Hotel Management at [75] and [79] that evidence of the kind presented by Dr Stubbs in these proceedings is relevant to the assessment required under s 79C. Her Honour was considering an argument that the provisions of the Liquor Act excluded that kind of assessment of social impact under the EP&A Act, which she rejected. The Appellant is effectively arguing similarly here, although says that it is not. It argues the two Class 1 appeals are distinguishable because of their different facts. While the evidence of the Appellant in this matter is different compared with the earlier Class 1 appeal before Jagot J, there is no factual difference between that appeal and this one which suggests that Jagot J’s legal conclusions concerning the construction of the EP&A Act and the Liquor Act in relation to the assessment of social impacts should not apply in this matter also. No argument presented suggests that her Honour’s reasoning on this legal issue of construction was wrong and in the interests of judicial comity I should adopt it.

51 I will nevertheless comment on the Appellant’s submissions. The Appellant sought to draw an analogy with the reasoning of this Court and the Court of Appeal on the extent of economic impact assessment identified in cases such as Fabcot, Cartier Holdings and Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119. In Fabcot, a class 1 appeal from refusal of development consent by the council, Lloyd J considered the social and economic effect of the development of a supermarket pursuant to the now repealed s 90(1)(d) of the EP&A Act. His Honour considered at 378 that economic competition that would emerge between individual trade competitors was not an economic effect properly considered as an environmental and planning consideration but, at 383, community detriment related to that competition was a relevant social and economic impact.

52 In Cartier Holdings v Newcastle City Council a declaration was sought that council’s grant of development consent was invalid. The applicant claimed that the council had made an error of law in assessing the economic impacts of the development pursuant to s 79C(1)(b) of the EP&A Act. Referring to Fabcot, Pearlman J held at [34] that the section did not require “the consideration of economic impact on individual competitors, except to the extent that any impact upon individual competitors, or competition generally, demonstrates economic impact in the locality as an environmental or planning matter.”

53 Interestingly in Randall Basten JA (Giles JA and Santow JA agreeing) stated that the limitation on considering economic impacts in an environmental and planning respect had been recognised in other cases as a consequence of statutory context rather than an explicit statutory requirement. In holding that there was no legal error in a commissioner’s consideration of economic impacts, Basten JA stated at [35]:

the suggested limitation of s 79C(1)(b) to only those economic impacts which can be described as “an environmental or planning matter” is unclear both as to the extent and the justification for the limitation. Leaving aside the question of “environmental”, which is not relied upon by the Claimant in the present circumstances, the concept of a “planning matter” is largely meaningless as an implied constraint. The EP&A Act may reasonably be described as “planning legislation”: those factors which it prescribes as mandatory or discretionary considerations may therefore be described as “planning matters”. There is no independent point of reference to avoid circularity. In my view, it is neither necessary nor appropriate to impose such a gloss on the language of para (b) of s 79C(1).

54 The Appellant’s counsel argued that by analogy there had to be a demarcation around the types of matters which could be considered in the assessment of social impact under s 79C and that Dr Stubbs’s evidence in the second bullet point was outside that which could be considered. Apart from a desire on the Appellant’s part to place a limit on the assessment of social impacts under s 79C(1)(b) it is not clear to me how such a limit, if there is to be one, means that the second bullet point in Dr Stubbs’s evidence should be excluded. That also arguably comes within a consideration of environmental and planning matters to which the EP&A Act and s 79C in particular is directed. Section 79C(1)(b) imposes a requirement to assess the social impact in the locality of the proposed development. Dr Stubbs’s evidence in the second bullet point does that at a broader level but nevertheless in a way that comes within s 79C(1)(b). I therefore agree with and adopt the findings of Jagot J in Waugh Hotel Management identified above in par 50.

55 The Appellant’s counsel stated several times that the impact of the proposed hotel, including with implementation of the proposed plan of management in the local area had to be considered by the Commissioner in order to comply with the mandatory considerations within s 79C and this had not been done. As the Council’s counsel argued, that was not the question raised in the evidence of the social planners. Rather the issue was what was the appropriate density of licensed facilities in a 300m radius of the site. That is the question the Commissioner addressed. The Commissioner does not have to refer to all the evidence in her written reasons. There is no failure to consider relevant evidence of Ms George, contrary to ground 5. Further, the Commissioner gives reasons as to why she accepts evidence of Dr Stubbs and Ms George, as she does in relation to Ms George on some matters. There is no demonstrated failure to give reasons. No error of law as referred to in the grounds of appeal (assuming these all identify errors of law) and in oral submissions on the issue of social impact assessment is demonstrated in the Commissioner’s judgment.

56 The Appellant has not established any of the grounds of appeal. The appeal should be dismissed. I have not heard any submissions on costs.

Orders

57 The Court makes the following orders:

1. The s 56A appeal is dismissed.
2. Costs are reserved.