K Richardson and Associates Pty Ltd v Yarrowlumla Shire Council

[2002] NSWLEC 87

Reported Decision: 122 LGERA 189

Land and Environment Court

of New South Wales

CITATION:	K Richardson & Associates Pty Ltd v Yarrowlumla Shire Council [2002] NSWLEC 87
PARTIES:	APPLICANT: K Richardson & Associates Pty Ltd RESPONDENT: Yarrowlumla Shire Council
FILE NUMBER(S):	10824 of 2000 and 11061 of 2000
CORAM:	Lloyd J
KEY ISSUES:	Appeal :- lack of or erroneous understanding - disproportionate or erroneous weight - reasons - adequacy of - manifest unreasonableness - no error of law
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 94 Environmental Planning and Assessment Regulation 2000 cl 27(1)(g) Land and Environment Court Act s 56A
CASES CITED:	Athens & Anor v Randwick City Council [2002] NSWCA 83; Attorney-General (New South Wales) v Quin (1990) 170 CLR 1; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472; Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Coles v Woollahra Municipal Council (1986) 59 LGRA 133; Hadid v Redpath [2001] NSWCA 416; Khan v Minister for Immigration and Ethnic Affairs (1994) 14 ALD 291; Lek v Minister for Immigration, Local Government and Ethnic Affairs [No. 2] (1993) 45 FCR 118; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611; Mifsud v Campbell (1990) 21 NSWLR 725; North Sydney Council v Ligon No. 302 Pty Ltd [No. 2] (1996) 93 LGERA 23; Parramatta City Council v Hale (1982) 47 LGRA 319; Pettitt v Dunkey [1971] 1 NSWLR 376; Randwick Municipal Council v Crawley (1986) 60 LGRA 277; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180; Weal v Bathurst City Council (2000) 111 LGERA 181; Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) LGERA 373
DATES OF HEARING:	16/05/2002
DATE OF JUDGMENT:	06/04/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr C J Stevens QC with Mr P R Clay (barrister) SOLICITORS: McIntosh McPhillamy & Co RESPONDENT: Mr P J McEwen SC SOLICITORS: Minter Ellison

JUDGMENT:

20

IN THE LAND AND Matter No.: 10824 & 11061 of 2000

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 4 June 2002

K Richardson & Associates Pty Ltd

Applicant

v

Yarrowlumla Shire Council

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal by the respondent, Yarrowlumla Shire Council (“the council”) pursuant to s 56A of the Land and Environment Court Act 1979 (“the Court Act”) against a decision of Commissioner Brown. The Commissioner upheld two appeals by the applicant against conditions of approval for the subdivision of two parcels of land. The conditions in question required the payment of monetary contributions pursuant to s 94 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) towards the provision and use of access roads leading to the development.

2. As noted above, there were two appeals before the Commissioner:

In proceeding No. 10824 of 2000 the council approved a development application for a seven lot subdivision. In this the council had imposed a condition of consent requiring a monetary contribution under s 94 of the EP&A Act of $84,330, being $14,055 for each of the six new lots. The Commissioner reduced the contribution rate per lot to $1,632 per lot and further allowed a credit for three existing lots, resulting in a total contribution of $6,528.
In proceeding No. 11061 of 2000 the council approved a development application for a six lot subdivision, which created five new lots. In this the council had imposed a condition of consent requiring a monetary contribution under s 94 of the EP&A Act of $70,275, being $14,055 for each new lot. The Commissioner reduced the contribution to zero, on the ground that the development application was for the re-subdivision of existing lots and not for the creation of new lots, so that the subdivision created no new or increased traffic demand upon the access roads.

3. An appeal against a decision of a Commissioner under s 56A of the Court Act may only be brought by a party to proceedings on a question of law. The grounds upon which the council relies and which are said to amount to errors of law were re-formulated in its submissions as follows:

(a) The Commissioner failed to comprehend the way in which the council’s s 94 Contributions Plan (No. 2) for Provision of Access Road (“the Contributions Plan”) was designed to operate. The Commissioner’s findings not only show a lack of understanding of how the imposts raised by the Contributions Plan were fashioned to meet increased demand, but also were irreconcilable with a plain reading of the Contributions Plan, and were incompatible with it and contradictory of it. The Commissioner’s lack of understanding and erroneous understanding leads to a conclusion that no proper or due consideration had been given by him to the Contributions Plan.

(b) The Commissioner gave disproportionate and erroneous weight to a variety of factors.

(c) The Commissioner gave no reasons, or insufficient reasons, in relation to a number of seminal issues.

(d) The Commissioner took into account irrelevant matters and erroneous considerations.

(e) There was manifest unreasonableness in the Commissioner’s decision.

4. Section 94 of the EP&A Act relevantly provides:

94 Payment towards provision or improvement of amenities or services

(1) Subject to subsection (2), if a consent authority is satisfied that a development, the subject of a development application or of an application for a complying development certificate, will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant consent to that application subject to a condition requiring:

(a) the dedication of land free of cost, or
(b) the payment of a monetary contribution,
or both.
(2) A condition referred to in subsection (1) is to be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services mentioned in that subsection.
…

…

5. Section 94B of the EP&A Act provides for the making of a contributions plan subject to and in accordance with the regulations. Pursuant to s 94B the council has made and approved the Contributions Plan for access roads serving new developments. The relevant details of the plan are discussed below under the various grounds of challenge to the Commissioner’s decision.

The Commissioner’s decision

6. The Commissioner has helpfully set out his reasons for decision under a number of headings. After the introduction and a description of the two development consents, the Commissioner has set out the relevant planning controls. Next, under the heading “The Issues” the Commissioner sets out the conditions which are the subject of the appeals. The next heading is “The Council’s Case – Section 94 Contribution”, under which the Commissioner notes that evidence for the council was given by Mr W Ellison, the council’s Director, Operations and Works and Mr D Rouse, the council’s Director, Environmental Development. The Commissioner notes that the Contributions Plan identifies three different situations that may occur with new subdivisions and with the traffic thereby generated:

Case 1 A new link road to join neighbouring subdivisions.
Case 2 A need for currently deficient roads to be upgraded to a higher standard, and
Case 3 A need to strengthen pavements to ensure the structural integrity of these roads into the future.
The Commissioner then notes that Mr Ellison indicated that the proposed subdivisions fell into Case 3. The Commissioner then quotes from the Contributions Plan the methodology for calculating the appropriate contribution based upon a mathematical formula. This in turn amounts to a contribution rate of $14,915 per lot as at July 2001.

7. Under the next heading, “The Applicant’s Case – Section 94 Contribution”, the Commissioner notes that evidence for the applicant was given by Mr W Swan, a consultant engineer and Mr K Richardson, a consultant town planner. The Commissioner sets out Mr Swan’s criticisms of the Contributions Plan which are said to support that witness’ opinion that the contributions sought are unreasonable. The Commissioner refers to a further statement by Mr Swan in which he recalculates the contributions and suggests that the appropriate contribution for the subdivisions is $1,623 per lot. Finally, under this heading the Commissioner notes that Mr Richardson’s evidence disputes the council’s evidence in relation to the potential lot yield within the catchment in which the subject land is situated.

8. The Commissioner then turns to his findings, which are also conveniently set out under a number of headings. Under the heading “Potential Lot Yield”, the Commissioner refers to the evidence of Mr Ellison, Mr Rouse, Mr Swan and Mr Richardson on this topic. Under the heading “Road Design Philosophy” the Commissioner notes the criticism by Mr Swan of the council’s design philosophy and notes Mr Ellison’s criticism of Mr Swan’s opinion. Under the heading “Catchment Choice” the Commissioner again notes the competing opinions of Mr Swan and Mr Ellison and the reasons each put forward in support of their opinions. Under the heading “Reconstruction or rehabilitation?” the Commissioner once again notes the competing opinions of Mr Swan and Mr Ellison. Under the heading “Timber Haulage Trucks” the Commissioner notes the evidence relating to the extent of the use of the roads by such trucks.

9. The Commissioner then sets out under the heading “Conclusions” his assessment of the evidence, the conclusions to which he has come and the reasons therefor.

10. I now turn to the grounds upon which the council says that the Commissioner has erred in law.

Lack of understanding / No proper or due consideration

11. Mr P J McEwen SC, appearing for the council, submits that the Commissioner’s decision demonstrates a lack of understanding and an erroneous understanding of the Contributions Plan leading in turn to the conclusion that no proper or due consideration was given to it (citing Parramatta City Council v Hale (1982) 47 LGRA 319 at 339). He further submits that the errors committed by the Commissioner show that he had not given “proper, genuine and realistic consideration” to the Contributions Plan (citing Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184; North Sydney Council v Ligon No. 302 Pty Ltd [No. 2] (1996) 93 LGRA 23 at 28; and Lek v Minister for Immigration, Local Government and Ethnic Affairs [No. 2] (1993) 45 FCR 118. Mr McEwen expanded on these submissions as follows.

12. The Commissioner found that the Contributions Plan “does not reflect the additional demands for public amenities, and public services, or in this case road works, brought about by the proposed development” (par [45] of the Commissioner’s decision). In so finding the Commissioner said that the applicant’s case, put principally by Mr Swan, should be preferred over the council’s case because it establishes that fact. Mr McEwen submits, however, that neither the analysis by Mr Swan nor his conclusions expressed such an opinion. To the contrary, Mr McEwen submits that the Contributions Plan identifies with particularity the cost of a road being “used up” over its life, the need for pavement upgrading as a result of its use and apportioning the relevant cost attributable to increased traffic from the development of new lots.

13. The Commissioner found that the Program of Works in the Contributions Plan did not provide for “specific public amenities and services proposed to be provided”, contrary to the statutory requirement to do so in cl 27(1)(g) of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) (par [64] of the Commissioner’s decision). Mr McEwen submits, however, that the Contributions Plan did just that; it was limited to access roads and items of work that are associated with roads in the Yarrowlumla Shire; and the Contributions Plan specifically describes a works program and describes how collections of the present type will be pooled and expended upon the identified works.

14. In the case of the second subdivision (in proceeding No. 11061 of 2000) the Commissioner concluded that because the proposed development was a re-adjustment of boundaries of existing lots, it follows that “if no new lots are to be created then there can be no increased demand” (par [75] of the Commissioner’s decision). In Mr McEwen’s submission, such an approach by the Commissioner ignored the reality that the existing subdivision pattern did not lend itself to practical purposes for residential use on each separate parcel. The purpose of the development application was to provide a subdivision pattern which would provide a configuration of lots that would be attractive to the rural residential market. As the Contributions Plan itself expressly recognises, land for this market “has proven to be very popular”. According to the submission, there was a strong probability that the existing subdivision would not generate any additional demand upon roads, but after the subdivision thereof it would generate such a demand and the necessary nexus is thereby established. For the same reason the Commissioner’s decision in proceeding No. 10824 of 2000 to allow a credit for three existing lots on the land to be subdivided was also an error.

15. Mr C J Stevens QC (who with Mr P R Clay appears for the applicant) submits that each of the findings or conclusions of the Commissioner are findings of fact; they involve no error or misunderstanding that would lead to the conclusion that the Commissioner failed in his duty; and there was evidence upon which the Commissioner was entitled to make the findings which he did. In his submission, the conclusions of Mr Swan, whose evidence the Commissioner preferred to that of Mr Ellison, are conclusions which he was entitled to draw from the factual material that was before the Court.

16. I accept the fact that there was a duty on the part of the Commissioner to give proper, genuine and realistic consideration to the Contributions Plan. In Weal v Bathurst City Council (2000) 111 LGERA 181, Mason P said (at 185):

There is little point in searching for a definitive statement of what is involved in taking something into consideration. I am however, attracted to Gummow J’s formulation of “proper, genuine and realistic consideration upon the merits”. This was in the context of s 5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 ( Cth) (see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292). The formulation has been carried across to the proper consideration ground of review and now appears to have general acceptance in the Federal Court of Australia (see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64 where the authorities are collected by Merkel J).

17. In the same case, Giles JA said (at 201):

Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale (at 335-6, 339); King v Great Lakes Shire Council (at 384); Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5).

18. In Zhang v Canterbury City Council (2001) 51 NSWLR 589, Spigelman CJ said (at 601):

The test was whether the Commissioner had given “proper, genuine and realistic consideration to the provisions of the DCP [Development Control Plan] ”. This formulation is derived from the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 and see Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J. As indicated by this Court in North Sydney Council v Ligon (at 28), this formulation was in substance the equivalent of the test of “real consideration” applied to the predecessor section of s 79C of the Environmental Planning and Assessment Act in Parramatta City Council v Hale (1982) 47 LGRA 319 at 331 and 335-336 and 338-339: see also Bruce v Cole (1998) 45 NSWLR 163 at 185-186. A number of equivalent formulations appear in the case law: see M Aronson and B Dyer Judicial Review of Administrative Action, 2nd ed (2000) Sydney, LBC Information Services at 225). Care must be taken that this category of judicial review or appeal on question of law is not elided into a review on the merits or an appeal on the facts ( Bruce v Cole (at 186)).

19. The last sentence of the quote from the judgment of Spigelman CJ above is significant. On an appeal which is limited to a question of law, as in the present case, the Court must not trespass into the forbidden field of review on the merits (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391, per Mason CJ). The merits of the case, to the extent that they can be distinguished from the legality, are for the repository of the relevant power, in this case the Commissioner, and for him alone (Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 at 36 per Brennan J).

20. Moreover, there is no error of law simply in making a wrong finding of fact (although the making of findings and the drawing of inferences in the absence of evidence is an error of law): Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654, per Gummow J; Corporation of theCity of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154, per Gleeson CJ, Gummow, Kirby and Hayne JJ, and at 158, per Gaudron J.

21. Each of the findings and conclusions of the Commissioner which I have set out in pars [12], [13] and [14] above are findings of fact on the merits. No legal error is involved. There is also no suggestion that there was an absence of evidence upon which the Commissioner could not make such findings.

22. Neither does it appear that there was a lack of understanding or an erroneous understanding of the Contributions Plan by the Commissioner which could lead to a conclusion that the Commissioner failed to give proper, genuine and realistic consideration thereto. The particular matters which are identified by Mr McEwen as demonstrating this are those set out in pars [12], [13] and [14] above. The Commissioner gave reasons for each of those findings and conclusions. For example, the Commissioner found (par [45] of his decision) that the Contributions Plan does not reflect the additional demands for road works brought about by the proposed development. His reasons for so finding are then set out in the following paragraphs of the decision. These include the failure of the Contributions Plan to consider the full impact of logging trucks and heavy vehicles, hence resulting in an unsatisfactory conversion rate to the number of equivalent standard axles, thereby overstating the impact of the proposed development (pars [46] to [58] of the Commissioner’s decision); the unsatisfactory basis for the assumptions in the Contributions Plan of potential lot yield (pars [57] to [60] of the Commissioner’s decision); and the failure to clearly distinguish between s 94 funds and other sources of funding and a reasonable apportionment of cost based on the sources of traffic generation. Mr McEwen submits that the Commissioner was in error in concluding that the Contributions Plan fails to distinguish between s 94 funds and other funds: the Contributions Plan does so. But it seems to me that it was open to the Commissioner to find, in this context, that the Contributions Plan does not reasonably apportion costs on the basis of the source of traffic generation, such as through traffic.

23. Next, as noted in par [13] above the Commissioner found that the Program of Works identified in the Contributions Plan does not clearly distinguish between maintenance and reconstruction and thus does not specify “the specific public amenities and services proposed to be provided by the council” as required by cl 27(1)(g) of the Regulation. A reading of the Contributions Plan shows that the terms “road maintenance” and “pavement upgrading” are separately defined. The contributions are sought from developers in the particular catchment in the present case (catchment 4) for “pavement upgrading”, that is, reconstruction. In this respect it seems that the Commissioner may have been in error in finding that the Contributions Plan does not clearly distinguish between maintenance and reconstruction; but this is an error of fact which is not reviewable on an appeal limited to a question of law. In any event, the Commissioner goes on to state that the additional traffic generated by rural residential subdivisions since the commencement of the Contributions Plan would not cause such damage as to warrant the reconstruction of any roads in the catchment and it would be difficult to attribute the present state of the roads to such traffic (par [65] of the Commissioner’s decision). This is again a finding of fact, so that this finding would nevertheless be determinative against the council.

24. Next, as noted in par [14] above the Commissioner allowed the applicant credit for the number of existing lots and held that if no new (that is, additional) lots are to be created then there can be no increased demand (pars [69] to [76] of the Commissioner’s decision). In proceeding No. 10824 of 2000 the council approved a subdivision of three existing lots into seven, thereby creating an additional four lots. In proceeding No. 11061 of 2000 the council approved a subdivision of six existing lots to create six different lots, so that there was the same number of lots as before. I have referred to Mr McEwen’s submission on the finding of the Commissioner on this point (in par [14] above). I have not, however, been referred to any evidence to support Mr McEwen’s submission. The existing lots prior to subdivision were all capable of being sold separately without reference to the council. The question of whether the new configuration of lots following the subdivision would lead to any increased demand upon the road system was solely a question of fact for determination by the Commissioner. Any such determination does not give rise to any question of law.

25. It seems to me that none of the matters raised by Mr McEwen under this ground of appeal disclose any error of law. Neither can it be said that the Commissioner failed to give proper, genuine and realistic consideration to the Contributions Plan. The Commissioner found, as a fact, that the Contributions Plan was deficient in a number of respects. Its provisions, as applied to the proposed subdivisions in the present case, were unreasonable. He was thus entitled pursuant to s 94(12) of the EP&A Act to disallow or amend the conditions imposed by the council. But that does not mean that he did not give proper, genuine and realistic consideration to the Contributions Plan. It follows that this ground of appeal fails.

Disproportionate and erroneous weight

26. Mr McEwen submits that the Commissioner gave disproportionate weight to a number of factors and thus arrived at erroneous conclusions. He submits that the Commissioner has made findings of fact in relation to the evidence which demonstrates the contrary; and that the Commissioner’s ultimate findings demonstrate either an erroneous understanding of the statutory task required by s 94 of the EP&A Act, or otherwise demonstrate a perverse and unreasonable application of the requirements of s 94 to the facts found. (He referred to Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 150, 156 and 157). Mr McEwen identified, in particular, the Commissioner’s findings on the use of the roads by logging trucks as compared to other vehicles, the potential lot yield, the likely lot production per year, and the part funding for Captains Flat Road by the Roads and Traffic Authority.

27. The reference by Mr McEwen to Azzopardi (at 150) is a reference to the judgment of Kirby P, who said that it was an error of law if the court or tribunal treats as having occurred what in truth is not shown by the evidence to have occurred, or where “everything pointed the other way”. Kirby P was, however, dissenting from the judgments of the majority in that case. The reference to the same judgment (at 156 and 157) is to the judgment of Glass JA, who held that a finding of fact may nevertheless reveal an error of law where it appears that the court or tribunal has misdirected itself, that is, has defined otherwise than in accordance with law the question of fact which has to be answered.

28. The reference to the judgment of Kirby P in Azzopardi does not, as Mr Stevens QC points out, fully state the law. Kirby P sets out (at 151) under the heading “The proper test:” the law relating to a challenge to the process of fact finding:

The court is limited, relevantly, to points of law. The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge’s fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. … Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence. Where the evidence points only in one direction, and, as in Poricanin [ Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 447] the trial judge nonetheless states that he disbelieves it, the onus being upon that person, the court, on appeal, may not intervene.

29. The reference by Kirby P to the weight of the evidence has also been referred to in other cases. For example, in Coles v Woollahra Municipal Council (1986) 59 LGRA 133, which was an appeal under s 56A of the Court Act, Stein J held that a misattribution of weight in respect of evidence is not an error of law. In Randwick Municipal Council v Manousaki (1988) 66 LGRA 330, Clarke JA (Hope and McHugh JJA agreeing) held that questions of the weight or relative significance to be accorded to particular facts are themselves questions of fact. More recently, in Minister for Immigration and Multicultural Affairs v Eshetu, the High Court reaffirmed (at 627 and 669) the principle that the weight to be accorded to a relevant consideration by an administrative decision-maker is generally a question for the decision-maker and not the court. There is, of course, the well-known statement by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (at 42):

… 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 it exceed its supervisory role by reviewing the decision on its merits.

30. Finally on this aspect, in Azzopardi Glass JA (Samuels JA agreeing) said (at 155-156):

To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways.

31. Glass JA went on to say that such a finding will be a question of fact and “discloses no error of law and will not constitute a valid ground of appeal”. Glass JA also said (at 156):

It is also pointless to submit that the reasoning by which the court arrives at a finding of fact was demonstrably unsound as this would not amount to an error of law.

32. Each of the conclusions of the Commissioner identified by Mr McEwen is a conclusion of fact based upon the evidence that was before him. There was evidence upon which the Commissioner could draw the conclusions of fact that he did on each of those matters. Those conclusions may or may not be wrong. If they are wrong then they do not amount to errors of law. Similarly, if there has been misattribution of weight accorded to particular evidence, then as noted (in par [29]) above this does not amount to an error of law. Accordingly this ground of appeal fails.

No reasons / Insufficient reasons

33. Mr McEwen SC made the following submissions:

(a) The Commissioner found that the Contributions Plan “does not reflect the additional demands for public amenities, and public services, or in this case road works, brought about by the proposed development” (par [45] of the Commissioner’s decision); and that the works schedule did not specify the public amenities and services proposed to be provided (par [64] of the Commissioner’s decision). The Contributions Plan did, however, address both these topics. Yet, in the face of the evidence to the contrary, the Commissioner gave no explanation as to why he reached these conclusions.

(b) The Commissioner found that the council “has failed to adequately consider the impact of logging trucks within the s 94 Plan…” (par [50] of the Commissioner’s decision). According to the submission, however, the impact of logging trucks had been taken into account in the calculation of the contributions; the Commissioner ignored the apportionment of costs and the mechanisms in the Contributions Plan and erroneously compared past impact (from logging trucks) instead of impact from existing usage, when the question for determination is an assessment of the impact from future use. The council’s case was supported by an analysis provided by Mr Ellison, but his explanation was rejected by the Commissioner in terms that do not allow for any understanding as to why such analysis was unacceptable.

(c) The Commissioner found that the Program of Works “confuses the issue of whether the identified works are maintenance or reconstruction” (par [65] of the Commissioner’s decision) but did not explain where he found the confusion.

(d) The Commissioner found that the Contributions Plan “does not provide a reasonable means of apportioning costs between existing and new lots” (par [65] of the Commissioner’s decision), but this is precisely what the Contributions Plan did.

(e) The Commissioner found in proceeding No. 11061 of 2000 that no new lots are to be created; and in proceeding No. 10824 of 2000 only four new lots are to be created, on the basis that credit was to be given for all existing lots. According to the submission, the logic which finds the giving of credit for existing lots requires explanation. In the present case the configuration of the original lots was such that the probability of them being used for residential development was, for practical purposes, non-existent. Apart from stating that there would be no increase in demand in respect of the existing lots, the Commissioner provided no rationale as to why that was so.

(f) The Commissioner provided no analysis as to why he chose a contribution of $1,632 per allotment other than to state that he preferred the evidence of Mr Swan to that of Mr Ellison, this being a critical finding.

34. Mr Stevens QC answers each of the above submissions by saying that there was evidence before the Court upon which the Commissioner could rely in coming to the various conclusions and that a sufficient explanation was given in each case.

35. It is well settled that a failure to give reasons is an error of law (Pettitt v Dunkey [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The duty extends to findings on any issue which is critical to the case (Mifsud v Campbell (1990) 21 NSWLR 725). Moreover, it is not a sufficient reason to say that the evidence of a particular witness is “preferred” over the evidence of another: reasons must be given for a conclusion of preference (Hadid v Redpath [2001] NSWCA 416 at par [53]). In other words, it is necessary to state why the evidence of one witness is “preferred” to that of another.

36. The requirement to give reasons does not require a tedious examination of the detailed evidence or a minute explanation of every step in the reasoning process that leads to the conclusion (Soulemezis at 219). In Athens v Randwick City Council [2002] NSWCA 83, Giles JA (Handley and Beazley JJA agreeing) said at par [16]:

What is sufficient to fulfil the duty, however, depends on the circumstances. The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning:…

37. It follows that the reasons need not be lengthy or elaborate (Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443). It has also been long settled that a “fine-tooth comb” approach should not be employed when examining decisions of technical commissioners for errors of law (Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138, Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 283, Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368).

38. In Brimbella, Kirby P (with whom McHugh JA agreed) said (at 368):

Secondly, I believe that it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved. …

Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this Court to examine their decisions as if they were written by a lawyer. I am not, by these comments, suggesting double standards; simply that the Court should take into proper account the composition of the tribunal, as it has been created by the parliament.

39. In applying the above-mentioned principles to the complaints identified by Mr McEwen (in par [33] above) I have come to the following conclusions.

(a) It is said that the Commissioner gave no explanation for his finding that the Contributions Plan “does not reflect the additional demands for public amenities, and public services, or in this case road works, brought about by the proposed development” notwithstanding the fact that the Contributions Plan did address these topics. A reading of the Commissioner’s decision discloses, however, that contrary to Mr McEwen’s submission he did give reasons. Immediately following the finding to which the council takes exception, the Commissioner states: “the Council’s approach falls short of what could be expected to establish a reasonable contribution for a number of important reasons”. Those reasons are then set out in the following paragraphs of the decision. In pars [46] to [56] the Commissioner describes the failure of the council to adequately consider the impact of logging trucks within the Contributions Plan; in pars [57] to [60] the Commissioner criticises the assessment of lot yield; in par [63], in the context of the apportionment of costs between the council and the Roads and Traffic Authority, the Commissioner criticises the absence of a reasonable apportionment of costs based on the sources of traffic generation; in pars [64] and [65] the Commissioner makes a finding that the Contributions Plan does not provide a reasonable means of apportioning costs between existing and new lots; and in pars [66] and [67] the Commissioner describes the shortcomings in the road design philosophy advocated by the Contributions Plan. This is not a case of failure to give an explanation or failure to give reasons.

(b) The complaint in relation to the Commissioner’s findings on the impact of logging trucks appears to be another attempt to criticise the merits of the decision. In par [52] of the decision the Commissioner clearly rejects Mr Ellison’s assertion that the logging trucks do not significantly impact on the local roads, noting that “the degree of damage caused to roads by trucks, when compared to cars, is enormous”. The Commissioner then proceeds to give full reasons in the following pars [53] to [56]. The stated reasons include the fact that one truck movement does approximately the same damage as 10,000 car movements; that a fully laden truck does 3,260 times more damage than an empty light truck; the finding that “[t]he s 94 Plan assumption that each residential lot will generate equivalent of 1 ESA [Equivalent Standard Axle] per week must be doubtful”, followed by details for so reasoning; and the reasoning (by reference to the number of vehicle movements of both trucks and cars) that “the damage to local roads from rural residential developments is almost insignificant”. This is not the case of a commissioner simply rejecting the evidence of an expert without giving reasons. Consistent with the duty to give reasons for preferring the evidence of one witness over another (as explained in Hadid v Redpath), the Commissioner gave full and complete reasons for rejecting the evidence and opinions of Mr Ellison.

(c) The next complaint is in relation to the Commissioner’s finding that the Program of Works “confuses the issue of whether the identified works are maintenance or reconstruction”. It is submitted that the Commissioner did not explain where he found the confusion. However, such an explanation is found in the last part of par [65] of the Commissioner’s decision. After making the finding which is criticised, the Commissioner goes on to explain the nature of the confusion.

(d) The criticism of the Commissioner’s finding that the Contributions Plan “does not provide a reasonable means of apportioning costs between existing and new lots”, is to take issue with a finding of fact. That finding appears at the end of a paragraph in which the Commissioner sets out the basis for the finding. The key word in the finding is the word “reasonable”, it being a requirement of s 94(2) of the EP&A Act that any contribution under the section be a reasonable one.

(e) The next criticism was in relation to the Commissioner’s finding that credit should be given for existing lots, or as was said by the Commissioner, “if no new lots are to be created then there can be no increased demand”. It is submitted that the logic which finds the giving of credit for existing lots requires explanation. I am inclined to the view that the explanation is self-evident. In any event, the Commissioner’s finding immediately follows a reference to s 94(2) being the requirement that any contribution be reasonable. In the light of that requirement the Commissioner’s conclusion becomes even more self-evident. It is nevertheless submitted that the configuration of the existing lots did not lend itself to the development of rural residential dwellings thereon. I was not referred to any evidence, however, which demonstrates that fact.

(f) It is submitted that the Commissioner provides no analysis or otherwise for his adoption of Mr Swan’s contribution rate of $1,632 per allotment, other than to state that he preferred the evidence of Mr Swan to that of Mr Ellison. I have noted above that the Commissioner gave reasons for preferring the expert evidence of Mr Swan to that of Mr Ellison. Having rejected, for reasons given, the basis for Mr Ellison’s figure, the only remaining evidence of any other contribution rate was that of Mr Swan. This conclusion discloses no error of law.

Irrelevant matters and erroneous considerations

40. Mr McEwen submits that the Commissioner took into consideration damage to roads attributable to traffic before the Contributions Plan came into force. The particular passage in the decision that is criticised is: “[o]n the view, the Court was taken over the roads the subject of the s 94 Plan and shown instances where pavements had failed and required intervention. Based on the likely levels of traffic from rural residential lots created since the s 94 Plan was in force, it would be difficult to attribute the damage to this traffic” (par [65] of the Commissioner’s decision). As I understand the submission, it is that the Contributions Plan is designed to assess contributions for prospective works and to reflect the demand for additional works generated by additional development, and that damage attributable to traffic which has occurred before the commencement of the Contributions Plan is not relevant.

41. I confess to having difficulty in appreciating the force of the submission. It seems to me that there is much force in Mr Stevens’ submission that the passage in question is a rejection of the proposition being advanced by the council that additional traffic generated by rural residential subdivisions warranted the reconstruction of any roads in the catchment within which the land is situated. If so, then I do not see how the Commissioner’s observation can be described as being irrelevant.

42. Mr McEwen next submits that the Commissioner, in reaching his conclusion that “the s 94 Plan does not provide a reasonable means of apportioning costs between existing and new lots” (par [65] of the Commissioner’s decision) relied upon a conclusion “that the Program of Works also shows only the expenditure of whatever funds are currently available from s 94 together with whatever funds are available to the Council from grants or other sources” (par [65] of the Commissioner’s decision). It is submitted that this was an entirely erroneous basis upon which to find the conclusion; Mr Ellison’s evidence shows how apportionment of the cost of upgrading was to be shared between new development and the existing users; on the basis therein set out, it was both fair and reasonable.

43. Again, I am in difficulty in appreciating the force of the submission. It is apparent from a reading of the Program of Works in the Contributions Plan that the costs are to be met only by s 94 contributions and grants from other sources. The statement made by the Commissioner which is criticised is thus a correct statement of fact. That is, the alleged irrelevant consideration records what is fact. The finding of fact then leads to the conclusion which is criticised, but which is nevertheless reasonably open to the Commissioner. Importantly, the key word used by the Commissioner in expressing his conclusion is the word “reasonable”. I cannot see any consideration of an irrelevant or erroneous matter.

44. Mr McEwen next criticises the Commissioner’s selection of a contribution rate of $1,632 per allotment. The Commissioner chose this figure “as the evidence did not allow a new figure to be recalculated and the evidence of Mr Swan was generally accepted above that of Mr Ellison’s” (par [78] of the Commissioner’s decision). It is submitted that if additional evidence was required to enable a proper contribution to be imposed the Commissioner was obliged to seek that evidence and should not have simply adopted a figure that was offered by the applicant and without reference to the calculation required by the Contributions Plan.

45. I cannot agree with the submission for two reasons. Firstly, there was no obligation on the Commissioner to call for more evidence. He was entitled to make a finding on the basis of the evidence before him. The Commissioner had rejected the basis for the calculation propounded by Mr Ellison. Mr Swan’s figure was the only evidence left and the Commissioner had made it plain that he accepted the approach of Mr Swan. Secondly, the contribution could not be recalculated in accordance with the Contributions Plan because the Commissioner had found that the basis of the Contribution Plan was unsound. (For example, the Commissioner found that “the damage to local roads from rural residential developments is almost insignificant” and that the Contributions Plan did not reasonably apportion damage to roads caused by heavy trucks as compared to damage caused by traffic generated by rural residential development).

Manifest unreasonableness

46. Mr McEwen’s final submission is that the combined grounds of challenge reveal that the Commissioner’s ultimate conclusion, in the context of what the Contributions Plan calls for, demonstrates manifest unreasonableness of the Wednesbury type.

47. In Weal v Bathurst City Council (2000) 111 LGERA 181, Mason P referred to a challenge based on Wednesbury unreasonableness in the following terms (at 188):

The test is stringent. When , “the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another a court should proceed with caution... lest it exceed its supervisory role by reviewing the decision on its merits” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 per Gleeson CJ and McHugh J, quoting Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42) . The decision must amount to an abuse of power (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290). See also Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31.

48. In the present case it could not be said that the determination by the Commissioner amounts to either an abuse of power or is so devoid of plausible justification that no reasonable person could have taken that course. In Minister for Immigration and Multicultural Affairs v Eshetu, Gummow J observed (at 153) that an allegation of unreasonableness may often prove to be no more than an impermissible attack on the merits of the decision. It seems to me that that is what is being attempted here.

Conclusion

49. The authorities to which I have earlier referred show that it is not appropriate to adopt a “fine-tooth comb” approach to decisions of lay commissioners in appeals that are limited to questions of law and it is undesirable that a commissioner’s words should be examined too narrowly. Yet that is precisely what the council has done in this appeal. Almost every phrase and almost every word has been closely examined, scrutinised and analysed in an attempt to find some error on the part of the Commissioner. The impression I have is that the council has attempted to elevate determinations of fact and merit to questions of law. Some of the Commissioner’s findings of fact may or may not have been wrong. It is not strictly necessary for me to decide whether they are right or wrong. None of them demonstrate any error of law.

Orders

50. I make the following orders:

(1) The appeal is dismissed.
(2) The appellant, Yarrowlumla Shire Council, must pay the applicant’s costs.

I hereby certify that the preceding 50 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated: 4 June 2002