Ku-Ring-Gai Municipal Council v Hogg

[1989] NSWLEC 157

Land and Environment Court

of New South Wales

CITATION:	Ku-Ring-Gai Municipal Council v Hogg [1989] NSWLEC 157
PARTIES:	APPLICANT Ku-Ring-Gai Municipal Council RESPONDENT Hogg
FILE NUMBER(S):	20239 of 1988
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act Local Government Act
CASES CITED:	New South Wales Court of Appeal in Randwick Municipal Council v. Manousaki (Unreported 26 September 1988); Australian Gas Light Co. v. Valuer General (38 SR 126 at 138); N.S.W. Associated Blue Metal Quarries v. Federal Commissioner of Taxation (94 CLR 509 at 54-512); Clark v Flannagan, 52 CLR 416; McPhee v S Bennett Ltd, 52 WN 8, at 9; Poricanin v Australian Consolidated Industries Ltd, (1979) 2 NSWLR 419, at 426; Azzopardi v Tasman UEB Industries Ltd, (1985) 4 NSWLR 139; Mahony v Industrial Registrar New South Wales, (1986) 8 NSWLR 1; Reg v District Court; ex parte White, 116 CLR 644, at 654
DATES OF HEARING:
DATE OF JUDGMENT:	02/13/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This is an appeal by the Council under s.56A of the Land and Environment Court Act against the decision of an Assessor granting building approval to the erection of a tennis court on land known as No. 17 Lofberg Road, West Pymble.

It is the appellant Council's submission that the Assessor erred in law in failing to properly take into consideration the matters set out in s.313(1) of the Local Government Act and in particular paragraph (o) thereof "the likely effect of the building on adjoining land and buildings". The Council submits that the Assessor's error is demonstrated from his approach to the case as contained in his extemporary reasons for Judgment.

In order to appreciate the submission it is necessary to set forth portions of the Assessor's decision. The first two paragraphs read:-

"I intend to allow the appeal. I do so for these reasons. Firstly, there is no public interest involved. The land is a battle-axe allotment, it is landlocked, surrounded on all sides and the evidence raises no matters of public interest at all. There will be no loss of any tree cover that may be considered to affect the predominant landscape quality of the municipality. There are few trees on the site and there are few trees on the adjoining site, being 15A. The loss of two liquidambar trees, though regretted, will have no substantially adverse impact on the area, and the loss of those trees can be in time compensated by way of proper landscaping of the site in accordance with the condition that has been offered by the applicant.

The private interests go to two properties really. The only two properties that are detrimentally affected by this proposal in any meaningful way are 137A Ryde Road and 15A Lofberg Street, I think it is. Now, the worst-affected property is 137A, in my view. Clearly that is quite substantially affected. Had the owner of that property come along to give strong objections to the proposal based on privacy, noise, proximity or whatever, backed up by the council's servants, then the court may well have considered that this was not a suitable location for the proposed tennis court. But that consideration falls to the ground, I think; when we look at the plan we see that the owner of that property is not concerned with the loss of any privacy or any other impact that may result from a tennis court being erected where proposed."

The Assessor then went on to consider the situation of No. 15A Lofberg Road which he concluded "is much less affected". He analysed the affectation on that property and determined that the tennis court should be set back an additional one metre to advantage that property in terms of his analysed affectation on that land. The findings of the Assessor relating to No. 15A are not challenged.

No. 137A Ryde Road is at the rear of the subject property sharing a common boundary. The plan shows that the tennis court is to be located very close to this boundary. The Council refused the application, inter alia, on the ground of the detrimental affect on the amenity of adjoining land and buildings in terms of s.313(o) and particularised the loss of privacy and overlooking of an adjoining property. At the hearing before the Assessor the Council lead evidence from a senior health and building surveyor (Mr. Mitchell) and a noise consultant (Mr. Challis). It also called evidence concerning the loss of two trees to which it is unnecessary to refer since the findings of the Assessor in this regard are not challenged. It was the evidence of Mr. Mitchell that the proposed position of the tennis court had an adverse effect on the residential amenity of adjoining properties, in particular No. 137A Ryde Road. The court's proximity to the common boundary precluded any natural screening and was immediately adjacent t

o the outdoor recreation area of No. 137A which included a swimming pool. The amenity of No. 137A was seriously affected, particularly with regard to loss of privacy caused by overlooking. Mr. Challis' report concluded that the proximity of the court would result in unacceptable levels of noise intrusion for No. 137A. The tennis court would create "a significant and unacceptable acoustical impact on both the residence at 137A Ryde Road as well as on its outdoor recreation area".

None of the neighbours or adjoining owners or occupiers were called to give evidence before the Assessor. However, the Assessor had tendered before him the plan of the proposed tennis court which had been lodged with the Council. This contained the following endorsement:

"We the undersigned adjoining property owners have no objection to the proposed construction of the tennis court shown on this drawing."

Thereafter appears the name, address, signature and date of a number of neighbours including No. 137A. (It is common ground that 137 Ryde Road where it appears on the plan is identical with 137A). The plan contains a further notation apparently affixed by the person signing for No. 137A, as follows:-

"We agree to this application provided that any brickwork facing our property is to be built as facebrick compatible with our surroundings and that our privacy is maintained."

This notation is also clearly signed by the same signature as before. It should be noted that there is no issue relating to the brickwork opposite No. 137A so this portion of the comment may be disregarded. However, the reference to the maintaining of privacy is relevant and in this respect it appears that the Assessor may have made an error in his fact finding in stating that the owner is not concerned with the loss of any privacy. However, I do not see how this error of fact, if that it be, amounts to an error of law so as to vitiate the decision sought to be impugned.

In his reasons the Assessor placed considerable weight on the fact that no objectors were called to give evidence, in particular the owner or occupier of No. 137A. No explanation was proffered as to why no resident objectors, including anyone from No. 137A, were called. There was no suggestion that any of those who endorsed their "consents" on the plan had changed their minds. It seems that the Assessor inferred, in the light of the consents endorsed on the plan, that they had no objection to the proposal. The Assessor may have been fortified in this conclusion regarding No. 137A by the evidence of the building surveyor that he believed that the relevant owner had "some building background". It would be reasonable to assume that a person with that knowledge would readily appreciate the plan especially the obvious position of the proposed tennis court almost on the common boundary and in close proximity to the pool and outdoor area of No. 137A and also the court's physical relationship with the dwelling. Even

without any building background I would have thought the plan is obvious in that respect.

The Assessor found that "the worst affected property is 137A". He said, "Clearly that is quite substantially affected". Having so found on the evidence before him the Assessor approached the matter in the following manner. He said that if the owner (of No. 137A) had given evidence objecting to the proposal on amenity grounds then, taken together with Council's evidence, he may have concluded that the proposed location was unsuitable. However, the Assessor also had before him the consent endorsed on the plan, albeit qualified in one relevant respect, evidence that the owner was a man with "some building background" who had endorsed his consent to the proposal on the plan. It appears that these latter factors lead the Assessor to balance and discount the evidence of the Council servant and consultant referred to earlier. In other words the Assessor chose to attribute different weight to the evidence before him. Because of the consents appearing on the plan and the lack of objection by those who one would consid

er to be most materially affected by the proposal, he chose to ascribe much more weight to that evidence and circumstance than to the evidence of the Council's building surveyor and noise consultant.

Does this amount to an error law? In my opinion it does not. The relevant principles were most recently discussed in the New South Wales Court of Appeal in Randwick Municipal Council v. Manousaki (Unreported 26 September 1988). In the Judgment of Clarke J.A., (with which Hope J.A. and McHugh J.A. agreed), His Honour cites passages from Australian Gas Light Co. v. Valuer General (38 SR 126 at 138) and N.S.W. Associated Blue Metal Quarries v. Federal Commissioner of Taxation (94 CLR 509 at 54-512). He went on to say:-

"On the other hand perverse or unreasonable findings of fact do not constitute errors of law (Clark v Flannagan, 52 CLR 416; McPhee v S Bennett Ltd, 52 WN 8, at 9; Poricanin v Australian Consolidated Industries Ltd, (1979) 2 NSWLR 419, at 426; Azzopardi v Tasman UEB Industries Ltd, (1985) 4 NSWLR 139, at 155; Mahony v Industrial Registrar New South Wales, (1986) 8 NSWLR 1, at 3 and 5). Even if the reasoning whereby a court or tribunal reached its conclusion of fact were demonstrably unsound this would not amount to an error of law (Reg v District Court; ex parte White, 116 CLR 644, at 654).

It is also clear that questions of the weight, or relative significance, to be accorded to particular facts falls for consideration once it has been determined that different conclusions are reasonably open and are themselves questions of fact (Mahony v Industrial Registrar of NSW, (1986) 8 NSWLR 1, at 4, per Samuels JA)."

Applying those decisions to the instant case I can discern no error of law. The Assessor undoubtedly placed more weight and significance on some facts than others. This was for him to determine. It cannot be said, in my opinion, that the conclusion reached was not reasonably open to him.

The Council submits that the Assessor misconceived the role of the determining authority under s.313. It is submitted that he failed to objectively assess the impact of the proposal on the adjoining land and buildings. I disagree. It seems to me from his reasons that he did assess the evidence before him. In my view the complaints about the Assessor's approach are really directed to the weight he attached to certain aspects of the evidence over others. As I have said these were matters for the Assessor. That I (or others) might disagree or come to a different conclusion on the facts is quite beside the point.

It is also submitted that the Assessor misconceived the public interest involved. This is put because the Assessor stated that the evidence raised no matters of public interest and then proceeded to categorise the Council's case in opposition as relating to "the private interests .... (of).... two properties". It must be noted that the decision was an extemporary one given at the conclusion of the evidence and addresses. The words used by the Assessor should not be scrutinised with a "fine-tooth comb". The correct approach is to give a fair reading to the words used. When this is done it becomes clear that the Assessor did not fall into any error of law in his categorisation of the interests involved. In any event, a reasonable reading of his reasons shows that he did consider the public interest, e.g., the tree cover and the loss of 2 liquidambars, the effect on No. 15A and No. 137A as well as other matters. In my opinion the Assessor did not apply any erroneous test in his consideration of the matters requi

red by s.313(1) of the Local Govermment Act, and in particular paragraph (o) thereof. I can discern no error of law.

The appeal is therefore dismissed with costs. The order allowing the appeal made by the Assessor is confirmed. The exhibits may be returned.