Ku-ring-gai Council v Pathways Property Group Pty Ltd

[2018] NSWLEC 73

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73
Hearing dates:	2 May 2018
Date of orders:	21 May 2018
Decision date:	21 May 2018
Jurisdiction:	Class 1
Before:	Moore J
Decision:	1   The appeal is dismissed; and 2   The Appellant is to pay the Respondent’s costs as agreed or assessed.
Catchwords:	APPEAL - proposed additions and alterations to an aged care facility - application reliant on State Environmental Planning Policy (Housing for seniors and people with a disability) 2004 - s 56A appeal against decision of Commissioner to approve development - four grounds of appeal - Ground 1 alleges proposed development prohibited on the basis that State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 was not available to approve proposed development - Ground 1 not raised before the Commissioner - whether jurisdiction to raise on appeal - within jurisdiction - merit - Ground 1 not established - however, if Ground 1 established, proper course to remit the matter to a Commissioner as Ground 1 not necessarily a complete bar to the proposed development - Grounds 2 to 4 pleaded defects in Commissioner’s reasoning to approve proposed development - no defects in Commissioner’s approach - appeal dismissed COSTS - no reason why costs should not follow the event - Appellant ordered to pay Respondent’s costs as agreed or assessed
Legislation Cited:	Civil Procedure Act 2005, s 98 Consumer, Trader and Tenancy Tribunal Act 2001, s 67(1) Ku-ring-gai Local Environmental Plan 2015, cll 2.3 and 4.6 Land and Environment Court Act 1979, s 56A Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy No 1 -Development Standards State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 2, 3, 5, 15 and 40 Uniform Civil Procedure Rules 2005, Pt 36 r 17
Cases Cited:	Anderson v Director General of the Department of Environmental and Climate Change & Anor (2008) 163 LGERA 400; [2008] NSWCA 337 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 Georgakis v North Sydney Council [2004] NSWLEC 123 Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 Pathways Property Group Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1486 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 University of Wollongong v. Metwally (No. 2) (1985) 59 ALJR 481; [1985] HCA 28 Veloshin v Randwick Council [2007] NSWLEC 428
Category:	Principal judgment
Parties:	Ku-ring-gai Council (Appellant) Pathways Property Group Pty Ltd (Respondent)
Representation:	Counsel: Mr T Howard SC (Appellant) Mr I Hemmings SC/Ms N Hammond, barrister (Respondent)   Solicitors: Shaw Reynolds Lawyers (Appellant) Robert Napoli & Co (Respondent)
File Number(s):	333286 of 2017
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The Company’s proposed development

This appeal

The planning instruments

Introduction

The relevant provisions of the LEP

The relevant provisions of the SEPP

The Council's Amended Statement of Facts and Contentions

Introduction

The pleaded facts

The pleaded contentions

The legislative rearrangement and renumbering

Matters in contest before the Commissioner

Introduction

The Commissioner’s approach to applying cl 4.6 to the Company’s proposal

The contested cl 4.6 objections

The grounds of appeal

Ground 1

Introduction

Jurisdiction

Introduction

The decision of the High Court in Kostas

Jurisdiction to raise the matter on appeal for the first time

Conclusion on jurisdiction

The validity of Ground 1

Introduction

The barrier sought to be overcome

The operative interrelationship between cl 4.6 of the LEP and cl 15 of the SEPP

The decisions in Georgakis and Principal Healthcare Finance

The operative overruling provisions in the LEP and the SEPP

The sequence of decision-making in merit appeals

Conclusion on validity of the bar said to arise from cl 15 of the SEPP

Conclusion on the merits of Ground 1

Discretion

The appeal hearing and Grounds 2, 3 and 4

The Commissioner’s general proposition on consistency

Ground 2

Introduction

The submissions on appeal

Introduction

The written submissions on Ground 2 on behalf of the Council

The written submissions on behalf of the Company on Ground 2

The objectives of the R2 zone

Consideration of the objectives of the R2 zone

Introduction

The Council’s contentions concerning cl 40(4)(a) and (b) of the SEPP

No express pleading of inconsistency

The third of the R2 zone objectives

The Joint Expert Town Planning Report

The oral evidence before the Commissioner

The oral submissions before the Commissioner

The relevant portions of the Commissioner’s decision concerning character

Consideration

Conclusion on Ground 2

Ground 3

Introduction

The Council’s written submissions on Ground 3

The Company’s written submissions on Ground 3

The Commissioner’s analysis relevant to Ground 3

Conclusions on the objectives of this standard

Conclusion on Ground 3

Ground 4

Introduction

The Council’s written submissions on Ground 4

The Company’s written submissions on Ground 4

Consideration

Conclusion on Ground 4

Costs

Orders

JUDGMENT

Introduction

1. HIS HONOUR: On 29 June 2016, Pathways Property Group Pty Ltd (the Company) applied to Ku-ring-gai Council (the Council) for development consent to undertake additions and alterations to the Abbotsholme Aged Care Facility (Abbotsholme), one of two aged care facilities owned by the Company and co-located at 9-19 Greengate Road, Killara (the site). The nature of the proposed additions and alterations is later set out in more detail.

2. The proposal was considered by the Council and, on 21 November 2016, the Company commenced Class 1 proceedings in this Court appealing against the deemed refusal of the application and seeking to be granted consent for its proposed development. The Chief Judge assigned the hearing of the appeal to Brown C. After a two-day hearing on 10 and 11 July 2017, Brown C delivered his decision on 5 September 2017 (see Pathways Property Group Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1486). The Commissioner determined that the proposed development was acceptable and granted development consent, subject to conditions.

The Company’s proposed development

3. The Commissioner concisely summarised the proposed development in his decision. After noting, at [1], that the overall effect of the development would be to add 16 residential beds to the Abbotsholme element of the Company's development on the site, the Commissioner set out the nature of the proposed additions and alterations, at [2]. He described them in the following terms:

•   demolition of the existing low-pitched roof and construction of an additional floor level with a mansard style (60-degree pitch) roof,

•   the new floor level contains 11 private rooms and a communal lounge room, and has lift and stair access to the floor below,

•   alterations to Level 4/5, including increased floor area to Unit 28 by reconstructing the inset portion of external wall and conversion of existing sundeck into a lounge/dining area and a sun porch,

•   alterations to Level 2/3 including conversion of hairdresser, servery, dining room, lounge room and office into six semi-self-contained units, narrow the existing entry hallway and construct a covered link between Abbotsholme and Killara Gardens, and

•   alterations to Level 1 to include additional excavation to create two store rooms and a stores and service area. Alterations to existing front garden of Abbotsholme, including construction of a new ramp to link the entry lobby to the street frontage.

4. No complaint is made by the Council concerning the adequacy of this description.

This appeal

5. The Council has appealed against the Commissioner’s decision pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act). Appeals against merit determinations in Class 1 of the Court's jurisdiction are confined to ones raising questions of law. This position arises as a consequence of the terms of s 56A(1) of the Court Act, a provision which is in the following terms:

(1)   A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2)   …

(3)   …

6. The appeal seeks to have the Commissioner’s decision set aside. The potential consequences of such an outcome depend on the basis upon which I might reach that conclusion as later discussed.

The planning instruments

Introduction

7. Two environmental planning instruments contain provisions requiring consideration in this appeal. These are the Ku-ring-gai Local Environmental Plan 2015 (the LEP) and State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP). A limited range of provisions of the SEPP and the LEP are relevant in my consideration of this appeal.

The relevant provisions of the LEP

8. The provisions of the LEP requiring consideration are cll 2.3 and 4.6 and the Land Use Table. The clause setting out use of the objectives of the various zones is set out below:

2.3   Zone objectives and Land Use Table

(1)   ..

(2)   The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

(3)   …

….

9. The element of the Land Use Table in the LEP setting out the objectives of the R2 Low Density Residential Zone (the R2 zone) (within which the site is located) is in the following terms:

Zone R2 Low Density Residential

1   Objectives of zone

•   To provide for the housing needs of the community within a low density residential environment.

•   To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•   To provide for housing that is compatible with the existing environmental and built character of Ku‑ring‑gai.

10. It is to be observed that development for the purpose sought in the Company’s development activity is prohibited. For the purposes of the application founding the Class 1 Application, the Company sought to rely on the SEPP to circumvent the prohibitory effect of the LEP. The Company then sought to rely on cl 4.6 of the LEP (set out below) to set aside the development standards in the SEPP which would otherwise have acted as barriers to the Company’s development proposal.

11. The clause in the LEP setting out the facultative process by which an otherwise applicable development standard may be varied is in the following terms:

4.6   Exceptions to development standards

(1)   The objectives of this clause are as follows:

(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)   Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)   Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)   that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)   Development consent must not be granted for development that contravenes a development standard unless:

(a)   the consent authority is satisfied that:

(i)   the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)   the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)   ….

(5)   ...

(6)   ...

(7)   ...

(8)   ...

The relevant provisions of the SEPP

12. The provisions of the SEPP requiring consideration are cll 2, 3, 5, 15 and 40.

13. Clause 2, the clause setting out the aims of the SEPP, is relevantly in the following terms:

2   Aims of Policy

(1)   This Policy aims to encourage the provision of housing (including residential care facilities) that will:

(a)   increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b)   make efficient use of existing infrastructure and services, and

(c)   be of good design.

(2)   These aims will be achieved by:

(a)   setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and

(b)   … and

(c)   …

14. The SEPP also contains a clause which makes it clear that the SEPP overrides any other environmental planning instrument which is inconsistent with a provision of the SEPP. The relevant provision of the SEPP is in the following terms:

5   Relationship to other environmental planning instruments

(1)   …

(2)   …

(3)   If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.

(4)   …

15. The SEPP is structured across a number of chapters. Chapter 3 is entitled “Development for seniors housing”. Chapter 3 is itself divided into Parts with some of those Parts being further divided into Divisions.

16. Part 1 of Ch 3 General includes, relevantly, the following description of what the chapter is said to do (emphasis added):

15   What Chapter does

This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy:

(a)   development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and

(b)   …

17. Chapter 3 also includes the provisions setting out the development standards relevant to the Company’s development proposal. They are in Div 1 General of Pt 4 Development standards to be complied with. They read, relevantly, as follows:

40   Development standards-minimum sizes and building height

(1)   General

A consent authority must not consent to a development application made pursuant to this Chapter unless the proposed development complies with the standards specified in this clause.

(2)   …

(3)   …

(4)   Height in zones where residential flat buildings are not permitted

If the development is proposed in a residential zone where residential flat buildings are not permitted:

(a)   the height of all buildings in the proposed development must be 8 metres or less, and

(b)   a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and

(c)   a building located in the rear 25% area of the site must not exceed 1 storey in height.

18. It is to be observed that cl 40(4)(a) and (b) both have notes in the primary text of the SEPP. However, cl 3(3) provides that “Notes included in this Policy do not form part of this Policy”. As a consequence, I have omitted those notes - they should play no role in these proceedings (although the provision in cl 3(3) concerning these notes does require later consideration as a consequence of the Council’s pleading of its grounds of appeal).

The Council's Amended Statement of Facts and Contentions

Introduction

19. As is required in Class 1 proceedings, the Council prepared a Statement of Facts and Contentions. That document was signed by Mr Goodwill, the Council’s town planner who gave evidence on behalf of the Council before the Commissioner. Leave was subsequently granted to the Council to rely on an Amended Statement of Facts and Contentions (the ASOFAC). A copy of the ASOFAC was reproduced at folios 129 to 140 of the Court Book in the proceedings before me.

The pleaded facts

20. The ASOFAC is in conventional form. With respect to its factual content, it contains the expected recital of descriptive and historical information concerning the proposed development and the Council's processes concerning it. It identifies, at folio 132 of the Court Book, what the Council considered to be the relevant environmental planning instruments potentially applicable to assessment of the Company's proposed development. Included in the list of those instruments are the LEP and the SEPP.

21. Individual elements of these two environmental planning instruments were not reproduced in the ASOFAC but, as is obvious from the matters traversed by the Commissioner in his decision, the relevant elements of the two instruments (with the exception of cl 15 of the SEPP which is now relied upon by the Council as founding Ground 1 in this appeal), were drawn to the Commissioner's attention during the course of the hearing before him.

The pleaded contentions

22. In the contentions pressed by the Council in its ASOFAC, the Council outlined six bases upon which the Council proposed that the Company's development should be refused. The Council also raised a contention concerning what the Council considered was the inadequacy of information concerning ongoing operational aspects if the proposed development was to be approved.

23. A number of those contentions subsequently played no part in matters requiring determination by the Commissioner as they were able to be resolved during the joint conferencing process between Ms Francis, the Company's town planner, and Mr Goodwill. The issue of inadequacy of information was also resolved.

24. The three matters of substance remaining from the Council’s contentions, and requiring determination by the Commissioner, were three objections made by the Company pursuant to cl 4.6 of the LEP. The objections related to the three development standards set out in cl 40(4) of the SEPP. The adequacy or otherwise of each of these objections, and the Commissioner’s analysis in sustaining each of them, provides the bases for Grounds 2, 3 and 4 advanced by the Council in this appeal. Each of them is subsequently considered by me later in detail.

25. However, the important contextual element of this framework arises with respect to Ground 1 pressed by the Council in this appeal. Although the ASOFAC set out the six contentions pressed by the Council as its initial response to the Class 1 appeal, those contentions (and the comprehensive particulars pleaded in support of them) make no mention whatsoever of what is now pressed as the prohibitory jurisdictional barrier said to arise from the terms of cl 15 of the SEPP.

The legislative rearrangement and renumbering

26. Although the rearrangement of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and the adoption of a new decimal numbering system for its provisions, took effect from 1 March 2018, before this appeal was heard, the proceedings before the Commissioner were held, and his decision was given, before these changes to the EP&A Act came into effect. It is, therefore, convenient to refer to the relevant statutory provisions as they applied when the Commissioner dealt with the matter.

Matters in contest before the Commissioner

Introduction

27. I have earlier set out the terms of cl 4.6 of the LEP. This is the provision by which an applicant for development consent can seek dispensation from compliance with a development standard that would otherwise, if applied, render the development proposal impermissible because of a breach of that standard. It is clear that, in general terms, this beneficial and facultative provision is capable of permitting dispensation from compliance with development standards not confined to those contained in the LEP itself, but in any other environmental planning instrument (cl 4.6(2)).

27. The SEPP is such an environmental planning instrument. It does not, as later discussed, expressly remove any development standards from being amenable to dispensation utilising cl 4.6 of the LEP.

28. The Company’s proposed development does not comply with any of the development standards concerning building heights set out in cl 40(4) of the SEPP.

The Commissioner’s approach to applying cl 4.6 to the Company’s proposal

30. In his decision, the Commissioner set out, at [41], the steps that are required to be followed in order to assess whether an objection to a particular development standard should be sustained. Although, as the Commissioner himself acknowledged, his recital of the steps was not in the order that they appear in cl 4.6, the Council raises no complaint in these proceedings as to the adequacy of his description of those steps or to the order in which he enunciated them.

31. Although, in his orders, at [110], upholding the Company's appeal and granting development consent, the Commissioner did not make formal orders sustaining the objections pursuant to cl 4.6 of the LEP, the Council accepts in these proceedings that the absence of those orders was obviously an administrative inadvertence, one capable of being corrected under the slip rule as permitted by Pt 36 r 17 of the Uniform Civil Procedure Rules 2005. As I have concluded, for the reasons subsequently set out, that the appeal should be dismissed, it is not possible in these proceedings to consider if it was permissible to invoke s 56A(2)(b) of the Court Act for me to correct this administrative defect.

The contested cl 4.6 objections

32. I have earlier indicated that there were three matters remaining in contention before the Commissioner which were advanced by the Council as warranting refusal of the Company's proposed development. Those were whether each of the three objections, pursuant to cl 4.6 of the LEP, to compliance with the relevant one of the breached development standards, in cl 40(4)(a), (b) or (c) of the SEPP, provided a proper basis to permit approval of a development non-compliant with such standard.

33. The Commissioner dealt with each of the three cl 4.6 objections in his reasons for decision and concluded that each of them should be sustained and thus there was no basis upon which he should refuse to grant conditional consent to the Company's proposed development.

The grounds of appeal

34. The Council pressed four grounds of appeal. These were pleaded as:

1.   The Commissioner did not have the power to grant consent to the subject development, as the subject development is, and was at all relevant times, prohibited from being carried out by and under the Environmental Planning and Assessment Act 1979;

2.   In the alternative to paragraph 1, in addressing himself to the matters prescribed in clause 4.6(4)(a)(ii) of KLEP 2015 in respect of the contraventions of the development standards with respect to height and the number of stories under clause 40(4) of SEPP HSPD, the Commissioner addressed the wrong question and failed to consider a mandatory consideration, namely whether the proposed development is consistent with the objectives for development within the R2 Low Density Residential Zone under KLEP 2015;

3.   In the alternative to paragraph 1, in finding that the proposed development was consistent with the objective of the development standard with respect to height in clause 40(4)(a) of SEPP HSPD, the Commissioner mis-identified the objective of the development standard; took into account extraneous considerations and failed to consider a mandatory consideration; and

4.   In the alternative to paragraph 1, in finding that the proposed development was consistent with the objective of the development standard with respect to the number of storeys set out in clause 40(4)(b) of SEPP HSPD, the Commissioner mis-identified the objective of the standard, considered the wrong question and took into account extraneous considerations.

35. Each of these grounds was supported by comprehensive particulars - it is not necessary to repeat the particulars at this point.

Ground 1

Introduction

36. Although the second, third and fourth grounds of appeal arise from matters that were in contention during the hearing before the Commissioner, Ground 1 (effectively proposing that the development was not entitled to the beneficial and facultative operation of cl 4.6 of the LEP to set aside the development standards in cl 40(4) of the SEPP; therefore, the SEPP could not be used to set aside the prohibition on development of this nature in the R2 zone; and was thus prohibited by the LEP) was not advanced for the Council in its pleadings below or by its advocate below. Ground 1 therefore requires consideration on three separate, sequential bases. These are:

1. Whether or not I have jurisdiction to entertain Ground 1 in this appeal;

2. If I do have jurisdiction to entertain Ground 1, is the barrier said to arise from cl 15 of the SEPP made out; and

3. If both the above propositions are resolved in the Council’s favour, whether or not, as a matter of discretion, the Council should be permitted to rely on that ground in this appeal so as to result in refusal of the Company’s proposed development.

37. However, although I am satisfied that this is the correct decision-making sequence, having considered all three elements in it, I have also concluded that it would be appropriate to address all three questions despite the fact that my conclusions on the first two of them would preclude the necessity to do so with respect to the third.

38. Mr Howard SC for the Council candidly admitted that the reason why the jurisdictional point underpinning Ground 1 had not been raised before the Commissioner was that the Council and its advisers had not thought of this point prior to, or during the course of, the proceedings below.

Jurisdiction

Introduction

39. I have earlier set out the terms of s 56A(1) of the Court Act. It is not necessary to repeat them. However, for me to be able to entertain the proposition advanced by Mr Howard, namely, that Brown C had given an order or made a decision on a question of law (one which was in error), it is necessary to consider what, if anything, might constitute that error.

40. For the present purposes, not only was there no express dispute before the Commissioner, there was nothing advanced to him:

1. in any of the documents to which he was taken; or

2. in anything said orally by either advocate; or

3. in anything said by any witness giving written or oral evidence

that could have caused him to contemplate whether any jurisdictional issue existed. All participating proceeded on the basis that he did have jurisdiction to deal with the matter in the fashion engaged by the contest between the parties based on that which remained in contention from the ASOFAC.

41. I have, earlier, adverted to the terms of the Council's ASOFAC. Nothing in the contentions in that document required the Commissioner to make any determination as to the availability of cl 4.6 of the LEP as a pathway by which the Company could circumvent the necessity to comply with the development standards in cl 40(4) of the SEPP. There is, therefore, nothing that could be said to have put before the Commissioner any jurisdictional element as a central matter in contention between the parties (Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310).

42. There is no suggestion, in these proceedings, that the Commissioner made some express order or decision dealing with whether or not cl 4.6 of the LEP was available to permit the setting aside of the necessity to comply with any of the development standards contained in cl 40(4) of the SEPP. What is proposed on behalf of the Council is that the Commissioner made an implicit decision, as a necessary step in his reasoning process, that he did have jurisdiction to do so.

The decision of the High Court in Kostas

43. In Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32, the High Court was required to consider s 67 of the then Consumer, Trader and Tenancy Tribunal Act 2001(NSW) (the CTTT Act). The relevant provision of the CTTT Act, s 67(1), provided (as at the relevant time):

67   Appeal against Tribunal with respect to matter of law

(1)   If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision.

(2)   ...

(3)   ...

(4)   ...

(5)   ...

(6)   ...

(7)   ...

(8)   ...

(9)   ...

44. A determination had been made in the Tribunal that certain documents had been served on Mr and Mrs Kostas. There had been a live dispute before the Tribunal as to whether or not this had occurred. The decision on that point by the Tribunal was unfavourable to Mr and Mrs Kostas.

45. That decision was appealed to the Supreme Court pursuant to s 67(1) of the CTTT Act. The primary judge concluded that, in determining the issue of service, the Tribunal had decided a question with respect to a matter of law and had committed an error in doing so.

46. That decision was appealed to the Court of Appeal where it was overturned.

47. The matter was then subject of a successful special leave application to the High Court where, after the substantive hearing by the High Court, the decision of the Court of Appeal was overturned. The necessary decision-making process before the Tribunal was described by French CJ, at [23], in the following terms:

The words, "question with respect to a matter of law", are wide enough to encompass a question of mixed law and fact. Questions of fact and law are often closely intertwined.

48. At [51], French CJ summarised the nature of the matters about which the primary judge had held that he was required to make findings. At [52], his Honour explained why the question of the lawfulness of the termination of the contract, in the context of the findings of the primary judge, was a question with respect to a matter of law.

49. His Honour dealt with the fact that Basten JA had, in the principal judgment in the Court of Appeal, held that the matters about which the primary judge had made findings of the type adverted to above had not been identified by the Tribunal as questions for decision with respect to matters of law. Relevantly, the other two members of the Court of Appeal (Spigelman CJ and Allsop P) had generally agreed with the reasoning of Basten JA.

50. French CJ accepted that the primary judge had validly concluded that the Tribunal, in making its original determination about whether or not the contract had been terminated had, implicitly, made a decision with respect to a matter of law and that the primary judge had, then, been entitled to make findings of fact in his assessment of whether an error had been made in that decision with respect to a matter of law.

51. The plurality (Hayne, Hayden, Crennan and Kiefel JJ) said, at [69]:

Section 67(1) of the Tribunal Act permitted the appellants to appeal to the Supreme Court against the Tribunal's decision that there was material properly before the Tribunal which supported the conclusion that the disputed claims for extension of time had been served on the appellants. The conclusion that there was material of that kind, necessarily implicit in making the finding that the disputed claims had been served, was a decision with respect to a question of law. [Emphasis added].

52. They added, in parenthesis, in [78]:

(It will be recalled that the conclusion that those two claims for extension had been validly served was a necessary step in the Tribunal reaching its conclusion that the appellants had repudiated the contract.)

53. It is clear that, as earlier noted, for the Commissioner's decision to be defective in a fashion amenable to challenge pursuant to s 56A of the Court Act, it would have been necessary for him to have made an order or decision on a question of law, either expressly or implicitly. There is no suggestion that the Commissioner's decision was an express one.

54. In Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 (Edyp), the Court of Appeal was also dealing with an appeal pursuant to s 67(1) of the CTTT Act arising from a decision made by the Tribunal. Although s 67(1) of the CTTT Act was in a different form at this time, that difference was merely to move the initial right of appeal from being to the Supreme Court and make it to the District Court. The relevantly engaged substantive provisions were unchanged.

55. The principal judgment in Edyp was given by Giles JA. His Honour wrote, relevantly, at [94] to [103] and [105] to [110] ([104] dealing with matters of fact peculiar to this case is not relevant):

94 A decision of a question with respect to a matter of law, as referred to in s 67(1) of the Act, may be implied or implicit and need not be express. In Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [60] Handley JA suggested that it was "arguable that the right of appeal extends to legal decisions where such a decision was necessarily made by the Tribunal but is not apparent on the face of the decision". The suggestion matured in a series of cases in this Court: Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [47] per Bryson JA, Santow JA agreeing; Chapman v Taylor [2005] NSWCA 11; (2005) Aust Contract Reports 90-206 at [33] per Hodgson JA, Beazley and Tobias JJA agreeing; Grygiel v Baine [2005] NSWCA 218 at [29] per Basten JA, Mason P agreeing; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14] per Basten JA, Giles JA and Bergin J agreeing (on a slightly different form of words in s 90 of the Medical Practice Act 1992); Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44 at [15] sqq per Tobias JA, Campbell JA agreeing, and at [42] per Campbell JA; Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674 at [3] per Basten JA and at [42] per Campbell JA, Hodgson JA agreeing; HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [26] per Allsop P and at [129]-[131] per Basten JA, Spigelman CJ relevantly agreeing.

95   Campbell JA, Basten and Macfarlan JJA agreeing, said in Dayeian v Davidson [2010] NSWCA 42; (2010) 76 NSWLR 512 at [36] in relation to s 67(8) of the Act that "it is still necessary for the Tribunal to decide a question with respect to the jurisdiction of the Tribunal" before the right of appeal is attracted (emphasis included). The same goes for other questions with respect to a matter of law. But the availability of an implied or implicit decision was recognised in the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390.

96   In Kostas v HIA Insurance Services Pty Ltd there was an issue in the Tribunal concerning service of two claims for extension of time (see in particular the reasons of French CJ at [42]-[45]). The Tribunal found that the claims had been served. Was there a decision of a question with respect to a matter of law?

97 In the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ their Honours said at [69] that s 67 permitted an appeal against the Tribunal's decision that there was material properly before the Tribunal which supported the conclusion that the claims had been served, and that "[t]he conclusion that there was material of that kind, necessarily implicit in making the finding that the disputed claims had been served, was a decision with respect to a question of law". They referred at [78] to service of the claims being "a necessary step in the Tribunal's reaching its conclusion that the appellants had repudiated the contract".

98 Their Honours later observed that a taxonomy of the various expressions of appeal rights in some manner confined to errors of law was not useful, and (at [89]) that "[t]he language of the statute must be the relevant starting point". The language of s 67(1) requires a decision. Their Honours held that there was no evidence to support the Tribunal's finding, and that the Tribunal had made an error of law. It was accepted, then, that the Tribunal decided a question with respect to a matter of law, namely, whether there was any evidence to support the finding. Their Honours said at [91] that "[t]he Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding".

99 French CJ, in a passage which I later set out more fully, said at [23] that the right of appeal conferred by s 67 of the Act "extends to decision which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal". His Honour referred in a footnote to cases the first of which were Kalokerinos v HIA Insurance Services Pty Ltd and Scicluna v New South Wales Land and Housing Corporation.

100   The nature of an implied or implicit decision has been variously expressed: for example, one necessarily made; something which had to be decided in order to decide the proceedings; something required for the conclusion reached on a matter; something necessarily forming part of the decision-making process; and see HIA Insurance Services Pty Ltd v Kostas at [69], [78], [91] above. There has been some divergence in further expression of the nature such of a decision.

101   One view is conveniently found in the reasons of Basten JA in HIA Insurance Service Pty Ltd v Kostas at [129]-[131]. His Honour referred to Handley JA's observation in Smith v Collings Homes Pty Ltd at [61] that "the section prevents a new point of law being taken for the first time on appeal". Basten JA continued -

"129 ... In other words, it is not sufficient that a particular finding be underpinned by a legal principle; for there to have been a decision of the Tribunal in respect of that principle, there must have been an issue in dispute between the parties requiring resolution by the Tribunal.

130 With respect to matters as to which the Tribunal's reasons were silent, it will be necessary for an appellant to demonstrate that there was such an issue in dispute. Once that has been demonstrated, a further question arises, namely whether the Tribunal did in fact resolve the dispute, whether it treated the disputed matter as irrelevant or whether it simply overlooked the issue. If the Tribunal overlooked the issue, there may have been a failure to accord procedural fairness or a constructive failure to exercise jurisdiction: see eg, The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228 at 242-3 (Rich, Dixon and McTiernan JJ); Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ) and [81]-[88] (Kirby J). Such error may invalidate the decision, but may not constitute a decision of the Tribunal. To find an implied decision in such circumstances is to subvert the statutory limits of the appeal ...

131 There remains a question as to whether it is appropriate to imply in given circumstances that a particular dispute has been resolved by the Tribunal, sub silentio, because a decision expressly made necessarily involved the resolution of that disputed issue. Such a conclusion will be a matter to be established by an appellant seeking to invoke its statutory right of appeal."

102   This view had previously been exposed in Kalokerinos v HIA Insurance Services Pty Ltd, in which Bryson JA had said at [47] that "[a] decision on 'a question with respect to a matter of law' in s 67(1) must be a decision on something which arose or was in issue or was debated in the proceedings; something which had to be decided in order to dispose of the proceedings ...". Paragraph [130] of HIA Insurance Service Pty Ltd v Kostas was cited by Campbell JA in Dayeian v Davidson at [37], with apparent acceptance although in that case there was no question of existence of an issue in dispute.

103   The other view can also be conveniently found in HIA Insurance Service Pty Ltd v Kostas, in Allsop P's qualifications of his agreement with the reasons of Basten JA. The President contemplated that there could be a decision on a question with respect to a matter of law although there had not been a relevant issue between the parties, saying -

"26 The second qualification is that the extent to which a decision on a question with respect to a matter of law is, and can be seen to be, implicit in a decision on the reasoning process of the Tribunal is not amenable to convenient definition. For instance, whether or not a finding is 'underpinned' by a legal question or whether an issue was in dispute, and the significance of the answers to such questions will often only be able to be illuminated with clarity by examination of the context and decision in question. For example, it would be possible for a decision to be made on a question with respect to a matter of law, even if the parties did not raise the issue. The lack of proffering of the issue by the parties may lead to other complaints, but it would not necessarily mean that a decision on a question with respect to a matter of law did not exist."

104   ...

105   Support for the view that a decision on a question with respect to a matter of law may be made although there was no overt issue can be seen in Kostas v HIA Insurance Services Pty Ltd .

106   I have referred to the reasons of the plurality. There is no indication that their Honours thought it necessary that the parties had been at issue concerning whether there was any evidence to support the finding that the claims had been served, as distinct from whether on the evidence the finding should be made. What their Honours said at [78] and [91] suggests a necessary step or dependence regardless of the parties' stances. It could be that an issue over whether a finding should be made includes whether there is any evidence to support it, but their Honours must have declined to accept what Basten JA had described in HIA Insurance Services Pty Ltd v Kostas at [137] as artificiality in "suggesting that the Tribunal would ask itself whether there was evidence capable of supporting a particular factual conclusion, as opposed to whether the assertion should be accepted".

107   French CJ at [59] accepted propositions one of which was, "The decision under appeal did not have to be a decision of a question expressly disputed before the Tribunal". His Honour did so "[f]or the reasons already given". I understand the relevant reasons, commencing with a reference to s 66 of the Act, to have been -

"[23] It is significant that s 66 not only provides for referral to the Supreme Court of a question which arises with respect to a matter of law but also empowers the Tribunal to decide such a question for itself. Referral logically requires formulation of a question. A decision of a question with respect to a matter of law by the Tribunal itself may be a decision of a question which it has expressly formulated, or it may be a decision implicit in a finding of the Tribunal. The right of appeal conferred by s 67 is therefore not limited to an appeal against explicit decisions of questions formulated in the proceedings. On its face it extends to decisions which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal. This construction of s 67 is compatible with the purpose, nature and composition of the Tribunal, which can be constituted by non-lawyer members. It is also compatible with a legislative scheme under which legal representation before the Tribunal will be the exception rather than the rule. The statutory objects of informality, expedition and inexpensiveness do not stop at the door of the Supreme Court." (footnote omitted)

108   I respectfully prefer the view that a decision may be made on a question with respect to a matter of law although the question was not raised between the parties.

109   Although the High Court did not think useful the taxonomy summarised by Basten JA in HIA Insurance Services Pty Ltd v Kostas at [84]-[87], common to the various forms of words in some manner restricting appeal to error of law is that fact-finding is for the Tribunal but legal error should be correctable. Legal error can arise when, indeed because, a question with respect to a matter of law is not raised between the parties, notwithstanding that it is necessary that it be determined for the tribunal to dispose of the proceedings before it. As French CJ indicated, absence of legal expertise in the Tribunal or the parties may mean that necessary matters of law are not recognised and not dealt with.

110   Unless the particular language otherwise requires, it should not matter that the legal error lies in studied decision of an overt question, in an unexpressed false assumption or misunderstanding as to a question, or in coming to a conclusion without attention to a question which must be determined. For example, in Kostas v HIA Insurance Services Pty Ltd the Tribunal's first acceptance that there was evidence to support its finding, to which the plurality referred at [91], was necessary whether or not the Tribunal turned its mind to whether there was any supporting evidence. The language of s 67(1) does not otherwise require, and this view of it better promotes the purpose of enabling legal error to be corrected while leaving factual matters to a Tribunal which is not necessarily constituted by a person with legal training.

56. Although Allsop P concurred in the orders proposed by Giles JA, he gave his own reasons for doing so. His reasons were not in conflict with that which I have extracted above from the judgment of Giles JA. The President dealt with the question of what was to be regarded as an implied decision, at [29] to [35] of his reasons. These paragraphs are in the following terms:

29   The scope of what is an implied decision was stated by their Honours in the High Court in Kostas broadly and simply. To understand when a decision can be seen to be implied it is unnecessary to go beyond acceptance of the expressions of the matter by French CJ: "decisions which were necessary steps in the Tribunal's reasoning" (398 [23]); and by the plurality: "necessarily implicit in making the finding" (412 [69]); "necessary step in the Tribunal reaching its conclusion" (414 [78]); and "necessarily depended upon" (418 [91]). Once one recognises that the statutory language not only encompasses any express decision of the Tribunal, but also any implicit decision as broadly expressed as in the reasons of the High Court in Kostas , it follows that the decision may concern a question or matter not specifically addressed by the parties. French CJ in Kostas addressed this at 410 [59] and 397-398 [23] of his reasons. The plurality did not address this expressly; but support for the view that I have expressed can be taken from the absence in their Honours' reasons of any necessity that the decision (including an implied decision in the manner formulated by them) be addressed by the parties and the consequence of their expression of what is an implied decision.

30   This view is reinforced by the recognition that the Tribunal is, as French CJ said at 398 [23] of his reasons, one which can be constituted by non-lawyers and in which informality, expedition and inexpensiveness should be hallmarks. If an express or an implied decision is made on a question with respect to a matter of law the statute is satisfied. The words of the statute do not require it to have been adverted to or addressed by the parties.

31   That does not mean, however, that the point made by Handley JA in Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [61] that new points of law cannot be taken for the first time on appeal is necessarily wrong. Whether a so-called new point can be raised will depend, in significant part, on whether the point that hitherto had escaped the parties was part of an implied decision in the sense described by the High Court in Kostas. How the proceedings were run at the Tribunal will be relevant to this question.

32   To the extent that anything that I have said conflicts with earlier views expressed in this Court, such as by Bryson JA in Kalokerinos at [47] or by Basten JA in Kostas [130] that for there to be a decision there must be a decision on something which arose or was in issue or was debated in the proceedings, the reasons in Kostas in the High Court explicitly (French CJ) and implicitly (the plurality) are contrary to it.

33 Though s 67(1) first uses the word "decides" as a transitive verb, it also uses the abstract noun "decision". If the abstract noun is used, a preposition or prepositional phrase becomes necessary. "On" or "as to" suffice uncontroversially. Thus, there needs to be identified a decision (express or implied) on a question with respect to a matter of law.

34 Broadly speaking, the statutory purpose in s 67 is to confer the jurisdiction to hear appeals, but limit those appeals, through the words used, to legal (and not factual) questions. I would not depart, unless required to do so by a decision of the High Court, from the meaning of the prepositional phrase "with respect to" that commended itself to Spigelman CJ, Basten JA and myself in Kostas - that the words are words of limitation, not expansion. Though the reasons of French CJ in Kostas at 398-399 [24]-[25] are contrary to this proposition, the plurality did not address the question. This approach accords with the above limitation and the apparent division of function expressed by Parliament - that fact finding as to the merits of the substantive dispute was intended to remain the exclusive preserve of the Tribunal.

35 The essential first task in any appeal under s 67 is therefore to identify the express or implied decision on a question with respect to a matter of law. Without the existence or identification of such a decision, the District Court will have no authority or jurisdiction to review the decision of the Tribunal. The relevant decision will have a clear relationship with any asserted "error of law". Though "error of law" is not the expression of the jurisdictional discrimen, it is centrally relevant for at least three reasons. First, the statute provides for an "appeal". As a matter of language and legal taxonomy, it can be accepted that the function of an appeal is to remedy the consequences of relevant error. Secondly, it is the "dissatisfaction" of the party with the decision that is to be remedied by the appeal process. Dissatisfaction implies that the party has a complaint about the decision which must carry with it the notion that the decision is said to be relevantly wrong. Thirdly, it is a decision on a question (implying an answer) about which there is to be dissatisfaction.

57. It is, therefore, necessary to return to the reasoning of French CJ in Kostas where, at [59], he set out four propositions that had been submitted on behalf of Mr and Mrs Kostas. His Honour agreed that the first, third and fourth of those propositions should be accepted. Those propositions accepted by his Honour are set out below:

1. The jurisdiction conferred by s 67 extended to decisions on questions of mixed law and fact.

2.   ...

3.   The decision under appeal did not have to be a decision of a question expressly disputed by the parties before the Tribunal.

4.   A decision of the Tribunal for which there was no evidence could be characterised as a decision of a question with respect to a matter of law.

For the reasons already given, propositions one, three and four should be accepted.

58. It seems to me that, in these proceedings, the proposition adopted by the Chief Justice in the third point in the list, in [59] above, arises here for the reasons earlier explained in Edyp.

59. I am satisfied, properly viewed in the context provided by the earlier extracts from the decision of the Court of Appeal in Edyp, that I must infer that an implicit decision was made by the Commissioner concerning whether or not he had jurisdiction to entertain the various cl 4.6 objections. Although it was simply not a matter which arose, self-evidently, in his mind or, implicitly, in the mind of the advocates or witnesses for the parties, nonetheless, I am bound to conclude that such an underlying implicit decision was made.

Jurisdiction to raise the matter on appeal for the first time

60. On the above basis, I turn to the question of whether or not the Ground 1 issue should to be permitted to be agitated on appeal for the first time. In Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 (Coulton), the plurality (Gibbs CJ, Wilson, Brennan and Dawson JJ) wrote:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards [citations omitted].

61. The plurality in Coulton also cited the decision of the High Court in University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481; [1985] HCA 28, at [7], where the plurality, in that decision, wrote:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so…

62. The conclusion which the High Court reached in Coulton was one which dealt with the proposed raising of an issue touching on the interpretation of a public statute, the powers of the statutory commission and the conduct of statutory officeholders (at [9]). In a broad sense, elements of that position are encompassed in the decision-making of the Commissioner in these proceedings. The plurality concluded, at [15]:

However, the principles to which we have referred earlier in this judgment have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice. So it is in the present case. The first respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied.

63. However, the new issue, sought to be raised for the first time on appeal in Coulton, dealt with the validity of a notice - it was not a point of absence of any jurisdiction at all to deal with the matters in dispute between the parties.

64. Similarly, in Metwally (No 2), the new issue sought to be raised for the first time on appeal was whether an earlier order of the High Court in an earlier matter between the same parties should be set aside in circumstances where the order made had arisen in the context of a conscious forensic decision made by the party now seeking to have that order set aside. The position taken by the High Court, although effectively precluding a new jurisdictional ground being raised, was one concerning process not merit.

65. In the present proceedings, the point sought to be raised by Ground 1 is a jurisdictional one that would, if valid and taken at first instance, have precluded the Commissioner from considering the three objections pursuant to cl 4.6 of the LEP.

66. Therefore, I am satisfied that the Council is not precluded from raising the matter pressed in Ground 1 on this appeal for the first time because Ground 1, if established, would have the effect of vitiating the Commissioner’s decision-making process as it was without jurisdiction to found it.

Conclusion on jurisdiction

67. For the reasons set out, I am satisfied that I have jurisdiction to entertain Ground 1 on appeal despite the fact that it was not raised below. Having so concluded, I must determine whether Ground 1 is valid.

The validity of Ground 1

Introduction

68. I now turn to address the question of whether or not cl 15 of the SEPP acts in the fashion proposed by Mr Howard to oust the availability of utilisation of cl 4.6 of the LEP to justify the various proposed non-compliances with the development standards in cl 40(4) of the SEPP.

69. The relevant operative element of cl 4.6 of the LEP is contained in cl 4.6(2). It is in the following terms:

(2)   Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

The barrier sought to be overcome

70. Clause 40(4) sets out three development standards that apply to developments proposing to take advantage of the benefits of the SEPP when the proposed development is in a residential zone where residential flat buildings are not permitted. The regulation of uses in the Land Use Table of the LEP applicable to the R2 zone, by not listing residential flat buildings as either permitted without consent or permitted with consent, mandates that such development is not permitted in that zone. The three development standards contained in cl 40(4) of the SEPP thus apply.

71. The Company’s development proposal breaches each of the three standards (an overall height limitation; a limitation on the number of storeys in a development; and a limitation requiring that, on the rear 25% of a site for which such development is proposed, that development must be single‑storey).

72. These three height standards, therefore, act to limit the height of development of housing for seniors or people with a disability in, inter alia, the R2 zone in the LEP, unless each of these development standards is amenable to a successful objection to compliance pursuant to cl 4.6 of the LEP.

73. The Company's development application to the Council was supported by three objections to compliance, one for each of these development standards. The objections were each made pursuant to cl 4.6 of the LEP.

The operative interrelationship between cl 4.6 of the LEP and cl 15 of the SEPP

74. The written submissions on behalf of the Council concerning the operative interrelationship between the two provisions were in the following terms:

44. Clause 15 of SEPP HS (extracted at [17] above) is the gateway - and the sole gateway - through which it might be argued that the subject development, notwithstanding being prohibited under the KLEP 2015, is nevertheless permissible with consent. There is no other gateway to enliven permissibility under SEPP HS.

45.   Clause 16 of the SEPP may be considered to work together with clause 15, but it does not present a separate gateway or expand the gateway provided by clause 15.

46.   It is the chapeau of Clause 15 which is of particular importance for present purposes, namely the following introductory words of that clause:

“This Chapter allows development for the purposes of seniors housing despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy". [emphasis on the word "if" added for the purposes of these submissions].

47.   These words embody a precondition that must be satisfied before it may be said that Chapter 3 of SEPP HS will allow development for the purposes of seniors housing "despite the provisions of any other environmental planning instrument". That is, SEPP HS does not confer any absolute right to overcome or bypass a prohibition against a development in an LEP, but, rather, it only confers a conditional right to do so.

48.   Conversely, if development for the purposes of seniors housing is not carried out, or not proposed to be carried out, in accordance with SEPP HS, then the clause 15 gateway remains shut and Chapter 3 of SEPP HS cannot operate to displace or circumvent any prohibition against development for the purposes of a seniors housing in another environmental planning instrument.

75. Contra these submissions, the position advanced on behalf of the Company was in the following terms:

57.   The Appellant, while accepting that the SEPP is beneficial and facultative, says that it does not give carte blanche permission to over-ride a considered prohibition in an environmental planning instrument. The application of the clause 4.6 request framework to vary development standards under the SEPP does not amount to carte blanche permission to override “a considered prohibition”. The standards in cl 40(4)(a) to (c) are not “prohibitions”, they are development standards (that fact is accepted by the Appellant: A submissions at [61]). Those development standards are amenable to variation pursuant to cl 4.6 of the LEP.

58.   The Appellant submits that clause 4.6 can only apply to justify a contravention of a development standard if the development is otherwise permissible with consent.

59.   On a proper construction of cl 15 and cl 16 of the SEPP, read together with cl 4.6 of the KLEP, the development was not prohibited under the SEPP. Clauses 15 and 16 did not, in terms, prohibit the development.

60.   In fact, clause 15 is descriptive not operative. It contains no limitation but merely describes what Chapter 3 does. Clause 40 is the operative provision as it contains the relevant development standards. Clause 4.6 operates in relation to any development standards including the Seniors SEPP. There is a symbiotic relationship between clause 4.6 and the SEPP - there is no inconsistency. Those provisions are to be read together; this is a recognised, well understood and frequently applied approach: Georgakis v North Sydney Council [2004] NSWLEC 123; Principle Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 at [77].

The decisions in Georgakis and Principal Healthcare Finance

76. I turn first to address support for the Company’s position said to arise from two earlier decisions of judges of this Court.

77. As can be seen from the final paragraph above of the written submissions on behalf of the Company, Mr Hemmings SC proposes that the decisions of McClellan CJ, in Georgakis v North Sydney Council [2004] NSWLEC 123 (Georgakis), and that of Robson J, in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 (Principal Healthcare Finance), provide assistance in resolving the question of whether or not cl 15 of the SEPP operates in the fashion proposed by Mr Howard for the Council in these proceedings. I am unable to accept that proposition.

78. In each of these cases, both ones involving proposals for development to take advantage of the SEPP or its predecessor, that which was in contest was whether or not that which was proposed to be set aside by an objection to compliance was a prohibition or was a development standard. In each instance, if that which required examination was held to be a prohibition, it acted as a bar to the proposed development.

79. On the other hand, it was the assumed position of the parties and the judge in each instance that, if that which potentially acted as a barrier to the proposed development was to be characterised, correctly, as a development standard, that development standard was amenable to being dealt with by invoking a facultative dispensation requiring merit determination.

80. It is obvious that, in both these decisions, a provision in the relevant facultative instrument was engaged, which had the same conditional wording structure with which I am dealing these proceedings (Georgakis at [7] and Principal Healthcare Finance at [8]). However, it is equally clear that no argument of the nature here advanced was proposed in either of those cases.

81. In the absence of any express necessity in either of those proceedings to address what, if anything, was the effect of the proposition now advanced that this conditional provision contained a potentially excluding gateway, there is no basis to infer that such a proposition had been determined by necessary implication in a fashion in support of the Company's position in these proceedings.

The operative overruling provisions in the LEP and the SEPP

82. Each of the LEP (in cl 4.6(2)) and the SEPP (in cl 5(3)) contains a facultative and beneficial provision mandating the paramountcy of the relevant instrument over any other environmental planning instrument which might be inconsistent.

83. There is an exclusionary provision in cl 4.6 which has the effect of not permitting access to the beneficial processes afforded by the clause if the clause is expressly set aside from potentially operating on a particular development standard. This arises from the second sentence of cl 4.6(2), a sentence which reads:

However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

84. For the purposes of these proceedings, however, there is no express exclusion in either the LEP or the SEPP which would automatically, in terms, oust the ability of a development proponent to seek to utilise cl 4.6 for each of the purposes for which the Company had sought to engage the clause before the Commissioner.

85. In this context, it is to be observed that the provision in the SEPP proposed by the Council as rendering cl 4.6 of the LEP inoperative (cl 15) is not one which contains an express exclusion but is an exclusion said by the Council to be necessary as a consequence of the construction said to be appropriate of cl 15 of the SEPP.

86. It is also to be observed that the inconsistency provision in the SEPP proposes that, where there is an inconsistency, for the purposes of paramountcy of the SEPP, it does not matter whether that inconsistency arose in an environmental planning instrument which predated the coming into force of the SEPP or whether it post-dated that event. This is clear from the express terms of cl 5(3) of the SEPP.

87. There are two reasons why I am satisfied that cl 4.6 of the LEP is available to seek dispensation from compliance with each of the three development standards in cl 40(4) of the SEPP.

88. First, I accept that the submission made for the Company that cl 15 of the SEPP is merely descriptive and does not impose the limitation said to arise by the Council. Correctly understood, it merely describes what the various operative provisions in other clauses in Ch 3 seek to effect for any development proposing to take advantage of the beneficial and facultative overriding provisions of the SEPP. That conclusion, in itself, is sufficient to dispose of Ground 1 on a merit basis.

89. However, there is a second and compelling reason why there is no merit in Ground 1. Even if, contrary to my conclusion in the preceding paragraph, cl 15 could be regarded as containing some form of implied restriction, it does not do so in express terms, but could only be inferred as doing so.

90. Whatever cl 15 of the SEPP might be, it is clear what it is not – it is not an express exclusion of the nature envisaged by the second sentence of cl 4.6(2) of the LEP.

91. However, in order to oust cl 4.6 of the LEP, there would need to be an express rather than an implied exclusion of the development standards in cl 40(4) of the SEPP. This arises from the second sentence of cl 4.6(2) set out above at [83]. Because the development standards in cl 40(4) of the SEPP are not expressly excluded from the operation of cl 4.6 of the LEP, the first sentence of cl 4.6(2) remains operative and thus made available below the opportunity for the Company to seek to have its three objections, pursuant to cl 4.6 of the LEP, assessed for the purpose of granting of dispensation from compliance with the development standards in cl 40(4) of the SEPP.

The sequence of decision-making in merit appeals

92. If one approaches, in a conventional fashion, the sequence in which orders are necessary to permit determination of a development application before the Court in Class 1 of its jurisdiction, pursuant to the appeal provisions in s 97AA of the EP&A Act, the sequencing is as follows:

1. Determination of an application (if made) to amend the development application (whether by amendment to the plans of the proposed development or in some other fashion being immaterial);

2. Determining any costs’ consequences which might arise from any such amendment as required by s 97B of the EP&A Act;

3. Determining whether any proposal to seek dispensation from compliance with a development standard if such objection has been made (whether pursuant to cl 4.6 of a modern local environmental plan founded on the Standard Instrument (Local Environmental Plans) Order 2006 or pursuant to State Environmental Planning Policy No 1 -Development Standards being immaterial);

4. After, and only after, addressing any of the above three issues which may require to be determined does the decision-maker then turn to making the relevant primary operative order as to whether or not the appeal is to be upheld; and

5. Finally, making the dispositive order either granting or refusing consent to the development.

93. Consideration of that decision-making sequence would tend to support a conclusion that consideration of, in this instance, three objections to compliance with development standards (being the standards contained in cl 40(4) of the SEPP) was required to be made prior to undertaking any broader merit assessment of the proposed development. This is because, by necessary implication, the nature of the development to be subject to the general merit assessment process can only be defined with precision after the decision-maker has determined whether or not the restriction in any development standard sought to be breached was appropriate to be set aside by a sufficient objection made through a cl 4.6 in the applicable LEP or pursuant to the SEPP itself.

Conclusion on validity of the bar said to arise from cl 15 of the SEPP

94. I am satisfied that the bar said to arise from the conditional term in cl 15 of the SEPP does not arise as a result of the overriding effect of cl 4.6(2) permitting the upholding of the objections to render the development standards in cl 40 of the SEPP no longer applicable.

Conclusion on the merits of Ground 1

95. Ground 1 is without foundation and is rejected.

Discretion

96. However, for completeness, I also consider that I should address the question of what should be the outcome if my earlier conclusion on Ground 1 is incorrect.

97. Mr Hemmings put the proposition to me that, if I was satisfied that I had jurisdiction to entertain Ground 1 (and cl 15 could found a bar to approval of the Company’s proposed development), I would not, as a matter of discretion, permit the Council to rely on this newly advanced proposition as, had the jurisdictional issue been raised below, the Company had a separate basis upon which to argue that its proposed development was permissible, subject to a merit assessment.

98. That basis, reliance on the proposition that the Company had existing use rights for the site and that the proposed development was a permissible expansion of that existing use, would not require any consideration of the development standards in cl 40(4) of the SEPP. This was because a successful invocation of an existing use rights basis for the Company's proposed development would not require invoking the beneficial and facultative pathway to consent potentially provided by the SEPP.

99. Mr Hemmings’ suggested analysis of the availability of arguing the potential existence of such a pathway (without expressing any opinion as to the validity, or otherwise, of its availability in the particular circumstances of this proposed development) is clearly correct. The Company did not seek to mount a case below on an existing use rights basis, in light of the fact that the Council did not suggest that the proposed development was prohibited or that cl 4.6 objections were not available to the Company.

100. As the Company had sought to rely on the SEPP and the Council did not dispute such a course, this meant that the Company did not need to contemplate what might be other options available to the Company to assert the permissibility of its proposed development (including how such arguments needed to be framed and what evidence might be required to support them).

101. I am unpersuaded that, had I been satisfied that cl 15 of the SEPP did act to provide an insurmountable barrier to the Company’s proposed development as submitted by the Council, there would have been such significant prejudice to the Company that I should decline to permit the Council to rely on that ground.

102. However, the consequence of upholding the jurisdictional and general availability of Ground 1, under the circumstances of the potential availability of an existing use rights basis being available to the Company, could not, as a matter of procedural fairness, have resulted in an order in this appeal dismissing the Class 1 proceedings.

103. The appropriate order under such circumstances could only be that the matter be remitted to a Commissioner - with that remitter allowing the Company to seek a timetable for the remitted hearing that would permit it to make such preparation as was necessary for the purposes of running an existing use rights argument (including preparation of any necessary evidence in support) and for the Council to prepare its response.

104. As I indicated to Mr Howard during the course of the hearing, it would also be appropriate to contemplate exercising the Court’s costs’ discretion pursuant to s 98 of the Civil Procedure Act 2005 on ordering such a remitter and “otherwise order” with the making of a costs order in favour of the Company being the appropriate response.

105. The Company has not pointed to any functional prejudice (the imminent expiry of a property acquisition option, if such an option had been applicable in the case, might have provided example of significant prejudice) if such a remitter was ordered.

106. On reflection on the question of discretion, I am satisfied that an order for remitter, together with a costs order in favour of the Company, would have been the appropriate course to follow had I been required to determine what should have been the consequence if the Council had been permitted to rely on, and had had success in, establishing the merit of this newly pleaded ground.

The appeal hearing and Grounds 2, 3 and 4

107. The dominant attention by the advocates during the course of the appeal hearing was on Ground 1. The reasons for the necessity so to do can be understood from the complexity of the matters needing to be determined with respect to Ground 1. This can be seen from the earlier section of this decision dealing with that ground.

108. However, it is not to be inferred that, as a consequence, the Council did not strongly press each of the grounds pleading inadequacy of the various objections to complying with a development standard set by cl 40(4) of the SEPP.

109. The written submissions on behalf of the Council and the Company had comprehensively dealt with Grounds 2, 3 and 4, rendering significant attention to them unnecessary during the course of oral submissions.

The Commissioner’s general proposition on consistency

110. I have earlier set out the terms of cl 4.6 of the LEP as relevant in these proceedings. In particular, cl 4.6(4)(a)(ii) requires that the consent authority (in this case, the Commissioner standing in the shoes of the Council) must be satisfied that:

The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. [emphasis added]

111. As can be seen, the satisfaction as to consistency must be with both the objectives of each of the relevant development standards in cl 40(4) of the SEPP and the objectives of the R2 zone set out in the Land Use Table in the LEP. The Commissioner approached the question of consistency by setting out the test enunciated as a general proposition arising from the decision of Pearlman CJ in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 (Schaffer).

42   In considering the question of consistency, I have adopted approach of the former Chief Judge, Justice Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 where, Her Honour expresses the following opinion [at 27]:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

43   A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

112. It is appropriate to repeat, before turning to the Commissioner's consideration of the zone objectives aspect of the consistency tests, to repeat those zone objectives. The zone objectives of the R2 zone are in the following terms:

•   To provide for the housing needs of the community within a low density residential environment.

•   To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•   To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

113. Having set out the approach which he proposed to take to the issue of consistency, the Commissioner then turn to consider how the zone objectives should be regarded for the purposes of assessment of consistency with them of each of the contravening elements of the Company's proposed development. The Commissioner wrote:

44   The zone objectives are broad and are not particularly helpful in dealing with the question of whether a variation to the height standard is appropriate. The lack of relevance of the zone objectives to the variation of the height development standard should not be a matter that acts in a negative way so pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.

114. At this point, it is appropriate to observe that the Council complains that the above extract from this element of the Commissioner's decision, dealing with the objectives of the R2 zone, was also repeated (with necessary minor adaptation) in one of the subsequent sections of his decision dealing with the other objections to compliance with development standards set by cl 40(4) of the SEPP.

115. Mere repetition can be no basis for complaint. If that which has been repeated is sufficient in itself (or sufficient in combination with whatever else may have been written in the relevant section of the Commissioner's judgment or is to be inferred from that section of the Commissioner's judgment), the fact that the Commissioner adopted the same basal proposition cannot, in itself, provide any reason to reject its potential validity.

Ground 2

Introduction

116. Ground 2 and its particulars were pleaded by the Council in the following terms:

… in addressing himself to the matters prescribed in clause 4.6(4)(a)(ii) of KLEP 2015 in respect of the contraventions of the development standards with respect to height and the number of stories under clause 40(4) of SEPP HSPD, the Commissioner addressed the wrong question and failed to consider a mandatory consideration, namely whether the proposed development is consistent with the objectives for development within the R2 Low Density Residential Zone under KLEP 2015;

86.   In circumstances where there was no objective stated in the SEPP for the height standard in cl 40(4)(a), it was open to the Court to accept the Respondent’s expert’s nominated objective. The authorities cited by Pepper J in Tanious, above, confirm that an overly critical examination of the Commissioner’s decision for relevant error should not be employed - that is what the Appellant is doing here.

87.   With respect to the allegation that the Court did not consider or identify the disparity between the height of the Abbotsholme building and No 7 Greengate Rd, that criticism flows from the terms of the Appellant’s own nominated objective. The Court considered the potential impacts on No 7 resulting from the breach of the 8 m height standard, in terms of privacy and overlooking at [51] and solar access at [53] of the Reasons. The Court had had the benefit of a site view, and it also had before it a plan of the streetscape that clearly depicted No 7 relative to the proposed development in the clause 4.6 request for cl 40(4)(a): AB 192.

88. A further extraneous consideration alleged to have been taken into account by the Court is the consideration of the development site in determining the character of the area: A submissions at [89]. The Court concluded at [48] that Abbotsholme and Killara Gardens “…form a legitimate and valid part of the character of Greengate Road” and “…contribute significantly to that character to the point where Greengate could be said to have two distinct characters: the residential development and the separate character of Abbotsholme and Killara Gardens”.

89.   The Appellant submits that this approach was an error, and the Court was not permitted to take into account the existing development on the site in assessing the character of the area. Again, this is merit review dressed up as error of law. It was open to the Court and not unreasonable to take the approach that it did, in adopting the Respondent’s expert’s nominated objective for the development standard, and concluding that the existing development formed a significant part of the character of the area.

90.   In addition, this is a finding of fact that is not open to review by the Court on appeal.

91.   Ground 3 would be rejected.

The Commissioner’s analysis relevant to Ground 3

154. It is unnecessary to address this ground at great length. As the Commissioner observed, in the first sentence of [45] of his decision, the SEPP does not contain any express objective for the development standard imposing a maximum height through cl 40(4)(a) of the SEPP. In commencing his analysis of the height development standard, the Commissioner wrote (at [45]):

45   The absence of any objectives in SEPP Seniors for height raises a difficulty but not one that cannot be overcome. Ms Francis and Mr Goodwill adopt objectives for the purposes of the cl 4.6 written request and I prefer the more comprehensive objectives of Ms Francis. Mr Goodwill’s emphasis on the “desirable elements of the location and character of the area” is a consideration that can be addressed as part of the objectives of Ms Francis, particularly the need to be “consistent with the character of the area”.

155. After the Commissioner's observations in [45] set out above, the Commissioner wrote, in [46], the following:

46   In relation to the adopted height objectives, I make the following comments:

To ensure that the development does not dominate the streetscape by virtue of its scale and bulk and is consistent with the character of the area

and

To ensure compatibility with the streetscape and existing context.

156. Although the Commissioner, it can be seen, has inadvertently omitted some contextualising words, it is clear that what the Commissioner has done is to adopt, for the purposes of his discussion at [47] to [49], the first and second of the objectives set out in the Company's amended Clause 4.6 Variation Request Height Of Buildings Development Standard (Exhibit C), as discussed in (7) of that exhibit and reproduced at folio 186 of the Court Book.

157. The Commissioner then dealt with the competing positions advanced by the town planning witnesses on these points.

158. With respect to the first two elements of what was advanced on behalf of the Company as being the objectives of this development standard, the Commissioner’s analysis explained why he preferred the position advanced by Ms Francis and did not accept that which was advanced by Mr Goodwill.

159. After this explanation, the Commissioner undertook a factual analysis based on the two propositions set out in [46] of his decision. There is nothing to be read in the joint report prepared by Ms Francis and Mr Goodwill, or anything said by either of them in the course of their oral evidence, that would suggest that the Commissioner's conclusions of fact were not available to him. Indeed, as he observed at the commencement of [48], he had also had the benefit of a site inspection. That which he observed during the course of the site inspection was evidence in the proceedings and was available to him to assist in his reaching of the factual conclusions he felt arose as a result of the observation, and written and oral evidence in the proceedings.

160. The section of Exhibit C noted above also included what the Company advanced as being the third objective of the control in cl 40(4)(a) of the SEPP. That element was that the control was to ensure that there would be no unreasonable amenity impacts caused to adjoining developments (at folio 187). The Commissioner used this third imputed objective for the height standard as the heading for his discussion of potential amenity issues. This discussion took place between [50] and [55] of the Commissioner's decision.

161. Between [50] and [55], the Commissioner set out the matters that he considered required assessment with respect to potential amenity impacts and then analysed each of them - drawing a series of conclusions, each one of which was that there was no impact that would act as a barrier to approval.

Conclusions on the objectives of this standard

162. At the conclusion of [49], the Commissioner noted that he considered that the breach of the height standard was consistent with, and achieved, the two objectives he had set out in [46] and had been adopted by him for the reasons set out in [47] and [48]. At [56], the Commissioner dealt with the overall position concerning the totality of the adopted objectives of the height development standard. He concluded that the proposal was consistent with them (at [56]).

163. All of the matters dealt with were the subject of factual findings based on the matters observed during the course of the site inspection and the written and oral evidence of the experts before him. There is nothing inherently unreasonable in any of these conclusions. As they involved findings of fact based on his adoption of the imputed objectives of the development standard (an adoption adequately explained in his reasons), there can be no complaint about these aspects of his decision-making.

Conclusion on Ground 3

164. Ground 3 is not made out and is rejected.

Ground 4

Introduction

165. Ground 4 and its particulars were pleaded by the Council in the following terms:

… in finding that the proposed development was consistent with the objective of the development standard with respect to the number of storeys set out in clause 40(4)(b) of SEPP HSPD, the Commissioner mis-identified the objective of the standard, considered the wrong question and took into account extraneous considerations.

Particulars

(a)   The objective of the development standard with respect to the number of storeys under cl 40(4)(b) of SEPP HSPD is expressly set out in the note set out in the instrument immediately under cl 40(4)(b), namely "to avoid an abrupt change in the scale of development in the streetscape".

(b)   The Commissioner, in purporting to consider whether the proposed development was consistent with the objective of the said development standard (in his reasons at [78] - [81]), failed to consider whether the proposed development caused or exacerbated an abrupt change in the scale of development in the streetscape and, instead, asked himself the wrong question, namely "whether the proposed alterations can exist together in harmony given the relative size of the proposal" (at [80]).

(c)   In considering whether the proposed development was consistent with the objectives of the said development standard, the Commissioner had regard to extraneous considerations arising from the planning principles stated in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22] and in Veloshin v Randwick Council [2007] NSWLEC 428 at [29].

166. The Commissioner’s findings on the development standard in cl 40(4)(b) of the SEPP were set out at [78] to [81] of his decision. They read:

Number of storeys standard objective

78   The number of storeys objective seeks “an appropriate relationship” with side boundaries and the streetscape so as to avoid “an abrupt change in the scale”. I have taken “an appropriate relationship” to have a similar meaning to the meaning of “compatibility” as set out in the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (at 22) where it states:

22   There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

79   “Scale” also has a particular meaning and this is addressed in the planning principle in Veloshin v Randwick Council [2007] NSWLEC 428 (at 29) where it states:

29   ... The terms excessive height, bulk and scale and overdevelopment are probably the most frequently used phrases in councils’ Statements of Contention. While bulk and scale tend to be used interchangeably, strictly speaking, bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things. When scale is used to mean apparent size, it is better to use those words. When scale is used to denote the character of an area, it is better to use that word. …

80   I have addressed the impact of the alterations and additions on the streetscape and found that the proposal is acceptable in this regard so there is no reason to repeat these comments. The following comments relate to the relationship with the side boundaries of the site. Based on the two planning principles; the question to be answered is whether the proposed alterations can exist together in harmony given the relative size of the proposal.

81   In my view, the answer to the question must be yes, for a number of reasons. First, I am satisfied that the proposed upper level has been designed to minimise the appearance of this level through different materials, form and the mansard roof. From 7 Greengate Road, I accept that it will be seen as an extra level but the objective does not discourage three storey buildings but only that if a building is more than two storeys, it must be in harmony with other buildings given the relative size of the proposal. This assessment is not simply an exercise in comparing the different height of the buildings. Second, and accepting that the upper level will be viewed as an additional level, the concerns of Mr Goodwill over the size and visibility of the dormer windows is not a factor that would unacceptably impact on the suitability of the upper level. Third, the setback to the common boundary with 7 Greengate Road of the upper level is between 6.1m and around 9m. Landscaping is to be provided at ground level to provide some screening to the building if not necessarily the new upper level. I accept that there is a generous setback that will help diminish the visual appearance of the new upper level. Fourth, there is some merit in the argument that 7 Greengate Road can be developed to higher potential through the existing planning controls, although it is not a matter that I rely on for its acceptability. A building with a maximum height of 9.5m (measured to the highest point of the building) can be constructed under the current planning controls

The Council’s written submissions on Ground 4

167. The Council’s written submissions on Ground 4 were as follows:

92.   The Commissioner made similar errors in purporting to identify and consider the objectives of the SEPP HS clause 40(4)(b) standard prescribing the maximum permissible number of storeys.

93.   The objective of that development standard is expressly set out in the note set out immediately under cl 40(4)(b), namely "to avoid an abrupt change in the scale of development in the streetscape".

94.   The Commissioner, in purporting to consider whether the proposed development was consistent with the objective of the said development standard (in his reasons at [78] - [81]), failed to consider whether the proposed development caused or exacerbated an abrupt change in the scale of development in the streetscape and, instead, asked himself the wrong question, namely "whether the proposed alterations can exist together in harmony given the relative size of the proposal" (at [80]).

95.   In considering whether the proposed development was consistent with the objectives of the said development standard, the Commissioner had regard to extraneous considerations arising from the planning principles stated in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22] and in Veloshin v Randwick Council [2007] NSWLEC 428 at [29].

96.   Once again, this error is highlighted by the omission on the part of the Commissioner to consider whether there was “an abrupt change in scale” between the Abbotsholme building (as per the proposed alterations and additions) and the single storey dwelling house located next door to it at No. 7 Greengate Road.

The Company’s written submissions on Ground 4

168. The Company’s written submissions on Ground 4 were as follows:

92.   The Appellant submits that the Court erred in its consideration of the objective in cl 40(4)(b), being the number of storeys standard.

93. It is submitted that the Court failed to consider whether the proposed development caused or exacerbated an abrupt change in the scale of the development in the streetscape, and instead asked the wrong question: A submissions at [94].

94. It is further submitted that the Court took into account extraneous considerations arising from the planning principles in Project Venture and Veloshin: A submissions at [95].

95.   As there was no express objective for this development standard in the SEPP, the Court adopted the objective that was agreed between the experts, as follows (Reasons at [61]):

To ensure that the development provides an appropriate relationship in storeys/scale to adjoining side boundaries and to streetscape to avoid an abrupt change in the scale.

96. The Commissioner clearly understood that the number of storeys objective required him to consider whether the development would result in an appropriate relationship with side boundaries and the streetscape so as to avoid an abrupt change in the scale: Reasons at [78].

97.   With respect to “appropriate relationship” he determined that phrase to have a similar meaning to “compatibility” in the planning principle in Project Venture. With respect to “abrupt change in the scale” he cited the planning principle in Veloshin at [29] in which the Court provided guidance on the term “scale”: Reasons at [78], [79].

98. The Commissioner then concluded that, based on those planning principles, the question to be answered was “whether the proposed alterations could exist together in harmony given the relative size of the proposal”: Reasons at [80]. He concluded that the answer to the question was ‘yes’. He supported that decision with further reasoning, noting that “this assessment is not simply an exercise in comparing the different height of the buildings”. He took into account that the new upper level would be viewed as an additional level, and considered the setback to the common boundary of No 7 and landscaping.

99.   It is apparent and implicit in the Commissioner’s reasoning that he considered the nominated objective for the development standard, including whether the development would result in an “abrupt change in scale”. Read as a whole, the Commissioner’s consideration and reasoning was reasonable.

100.   As noted above, an overly critical examination of the Commissioner’s decision for relevant error should not be employed. The Appellant is again applying a fine-tooth comb approach to the Commissioner’s decision which should not be adopted: Marina Bay.

Consideration

169. It is also unnecessary to deal with this ground at great length. I have, above, set out the portions of the Commissioner's decision concerning his consideration and his findings – these paragraphs being the basis for complaint in the second of the particulars to this ground.

170. However, this element of the Commissioner's decision deals with his findings on this point. His description of the dispute between the planners commences at [60]. In [60], he observes that Ms Francis has not conceded, for the Company, that the uppermost level proposed to be added as part of this development proposal constitutes a storey but is an attic and therefore not to be counted for the purposes of the storey development standard in cl 40(4)(b) of the SEPP.

171. The Commissioner noted that, for caution, Ms Francis had provided an objection to compliance with the storey standard if the proposed level was not to be characterised as an attic. The objection to compliance was, as earlier observed, made pursuant to cl 4.6 of the LEP.

172. As I have earlier observed, the SEPP does not set out any objectives for the development standards contained in cl 40(4) of the SEPP. In his decision, the Commissioner records the agreement between the town planners as to what should be regarded as the objective for the development standard relating to the number of storeys. He wrote, at [61]:

The number of storeys objective

61   There are no objectives for the number of storeys standard in cl 40(4)(b) so Ms Francis and Mr Goodwill adopt the following objective for the number of storeys standard:

To ensure that the development provides an appropriate relationship in storeys/scale to adjoining side boundaries and to streetscape to avoid an abrupt change in the scale.

173. Between [62] and [74], the Commissioner summarised the competing evidence of Ms Francis and Mr Goodwill concerning the Company's objection to compliance with this development standard.

174. The Commissioner’s findings commenced by setting aside the question of whether or not that which was proposed to be added to the upper levels of Abbotsholme was or was not an attic. The Commissioner wrote, at [75] and [76]:

Is the upper level an attic?

75   There is some strength in the argument of Mr Goodwill that the 'attic' definition in the Standard Instrument LEP does not apply to the determination of storeys for the purposes of SEPP Seniors as that term and definition are not found in cl 3 'Interpretation' of SEPP Seniors.

76   Given that Ms Francis has provided a cl 4.6 written request, and for abundant caution, I propose to consider this document for the purposes of determining whether the number of storeys is acceptable, or not.

175. At [77], the Commissioner repeated the element concerning the zone objectives which was the subject of Ground 1. It is unnecessary to deal with this again.

176. The Commissioner then turned, at [78] and [79] (set out earlier), to deal with the change that would arise if the development was approved on the basis of the objective for this development standard identified by the town planners.

177. The words, “an abrupt change in the scale”, are those which derive from the note which appears in the SEPP immediately following the setting out of the development standard for the number of storeys in cl 40(4)(b) of the SEPP. However, the words were incorporated in the agreed objective for the cl 40(4)(b) development standard adopted by the town planners but only as part of a more nuanced and confined objective (set out at [172] above).

175. The complaint, in particulars (a) and (b) pleaded by the Council to this ground of appeal, expressly makes reference to the (ir)relevant note in cl 40(4) of the SEPP. However, as I observed at [18] earlier, cl 3(3) of the SEPP deals with the question of notes which appear throughout the SEPP. This provision reads:

(3)   Notes included in this Policy do not form part of this Policy.

179. In this respect, therefore, the Council’s pleading is defective and to be ignored.

180. I have earlier set out the agreement between Ms Francis and Mr Goodwill as to what should be regarded as the objective for this development standard. The Commissioner’s discussion, at [78] to [81], clearly addresses this agreement between the experts as to what was the underpinning basis for the setting of this development standard.

181. In [78], the Commissioner set out the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 concerning compatibility and the planning principle in Veloshin v Randwick Council [2007] NSWLEC 428 concerning scale. Doing so was entirely conventional in a Class 1 merit appeal and was reflected in his reasoning at [80] and [81] of his decision. This complaint lacks foundation.

182. This analysis, consistent with the objective for this development standard as agreed to by the town planners, simply involved findings of fact on the merits of this aspect of the Company’s proposed development. There is nothing inherently unreasonable in his consideration and conclusion and, as findings of fact, his conclusion is not amenable to attack on appeal.

Conclusion on Ground 4

183. Ground 4 is not made out and is rejected.

Costs

184. The general position, with respect to appeals pursuant to s 56A of the Court Act, is that costs follow the event and there is no reason why I should depart from that approach in these proceedings.

Orders

185. It therefore follows that the orders of the Court are:

1. The appeal is dismissed; and

2. The Appellant is to pay the Respondent's costs as agreed or assessed.

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Decision last updated: 21 May 2018