Legal and General Life of Australia Limited v North Sydney Municipal Council
[1989] NSWLEC 203
•06/01/1989
Land and Environment Court
of New South Wales
CITATION: Legal & General Life of Australia Limited v North Sydney Municipal Council & Anor [1989] NSWLEC 203 PARTIES: APPLICANT
Legal & General Life of Australia LimitedFIRST RESPONDENT
SECOND RESPONDENT
North Sydney Municipal Council
Minteyville North Sydney Pty LtdFILE NUMBER(S): 40298 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: Woollahra Municipal Council v Carr (62 LGRA 263);
Hunter Valley Vineyards Association & Anor v Council of the City of Cessnock & Ors 7 October 1988 ;
Quinn O'Hanlon Architects Pty Limited v Leichhardt Municipal Council 19 May 1989 ;
Associated Provincial Picture Houses (Australia) Limited v Wednesbury Corporation [1948] 1KB 223;
R v Secretary of State for the Environment Ex parte Nottingham Shire County Council [1986] AC 240;
Regina v Hillingdon London Borough Council Ex parte Pulhofer and Another [1986] AC 484);
The Minister for Aboriginal Affairs v Peko Wallsend 162 CLR 24;
SCMP v North Sydney Municipal Council, unreported 15 April 1983;
Michel Products Pty Limited v Randwick Municipal Council 46 LGRA 410;
T& P Concrete Pty Limited v Kempsie Shire Council unreported 17 December 1985;
Hooker Corporation v Hornsby Shire Council unreported 2 June 1986;
Hooker Rex Estate v Hornsby Shire Council unreported 27 JulyDATES OF HEARING: DATE OF JUDGMENT:
06/01/1989LEGAL REPRESENTATIVES:
APPLICANT
Mr Tamberlin QC
JUDGMENT:
His Honour: On 5 December 1988 North Sydney Municipal Council granted development consent to Minteyville North Sydney Pty Limited (the Developer) for the erection and use of a 17 storey building in Alfred Street, North Sydney. On 31 January 1989 Legal and General Life of Australia Limited commenced Class 4 proceedings pursuant to s 123 of the Environmental Planning and Assessment Act seeking a declaration that the consent granted by the Council is null and void. On 17 April 1989, Comrealty Limited commenced similar proceedings seeking the same relief. Legal & General is the owner of a tall multi-storey commercial property known as Legal & General House immediately to the west of the subject land and Comrealty is the owner of an even taller multi-storey building used for commercial and residential purposes immediately to the north west. Legal & General and Comrealty are concerned that the subject development will result in a significant loss of views for the two buildings.
The statutory planning controls of relevance to the development are Interim Development Order 60 (the deemed local environmental planning instrument) and State Environmental Planning Policy No 1 (development standards). The subject land is zoned "business commercial (restricted) 3(d)" under IDO 60. Clause 9 provides that development may be carried out in a 3(d) zone for purposes appearing in Column IV. Column IV provides:
"Advertising structures; ancillary office space; child care centres; clubs; commercial office space; commercial premises; drainage; dwelling houses, boarding houses and residential flat buildings constructed in conjunction with commercial premises, shops referred to in Schedule IV or commercial office space: educational establishments; hotels; motels; open space; parking; purposes referred to in Schedule 3; roads; service stations; purposes referred to in Schedule 4 and shops referred to therein not exceeding 100 square metres floor area".
Relevantly Schedule 4 provides:
"Chemist'sshop
Confectionery Shop and Milk Bar
Delicatessen Fish and Chip Shop
Fruit Shop
Grocery and Health Food Shop
Hairdressing Salon
Newsagent's Shop Refreshment Rooms
Stationery Shop (Books and Newspapers)
Sandwich Shop
Take-away food other than drive-in.
"Refreshment room" is defined to mean:
"A restaurant, cafe, tea room, eating-house or the like".
In each case, the first issue is whether the subject development is permissible development under IDO 60 namely:
" ... Residential flat buildings constructed in conjunction with commercial premises, shops referred to in Schedule 4 or commercial office space; ... ".
Legal & General and Comrealty submit that what was consented to was not development referred to in Column IV because the development was not "residential flat buildings constructed in conjunction with commercial premises etc" (underlining mine to reflect the emphasis relied on by the applicants). Comrealty submits, in addition, that even if the residential flat building is relevantly "constructed in conjunction with a commercial purpose" the development is nonetheless prohibited because it is "constructed in conjunction" with a restaurant. It is also submitted that the restaurant exceeds the maximum floor space area permissible in Column IV.
It would follow from Woollahra Municipal Council v Carr (62 LGRA 263) that SEPP No 1 could not be used to alter standards in the zoning table. (In any event, it should be noted that North Sydney Council did not purport to do so.) I shall return to the terms of IDO 60 in due course.
Because the details of the development were fully described in the development application and clearly understood by the Council, the first question is to be resolved by the Court deciding for itself whether the development is permissible. That is, it was not submitted by the Council or the Developer that although the Court might classify the development as prohibited, it was open to the Council to classify it as permissible (see Hunter Valley Vineyards Association & Anor v Council of the City of Cessnock & Ors 7 October 1988 unreported).
The second issue in each case concerns the ambit and application of the dispensing power in SEPP No 1. As will be seen, there are two standards of relevance in IDO 60. Clause 12 (4) provides, inter alia, that the floor space ratio is not to exceed 3.5:1 and, in any event, not to exceed 2:1 for commercial premises or commercial office space (clause 12(5)(c)). Clause 14 provides that no building shall be erected on the subject land in excess of five storeys (this being an exception to the general 8 storey limit ((cl 14(6)). The subject development is 17 storeys and has a floor space ratio of 15:1. Legal & General and Comrealty both allege that the Council's planning discretion miscarried. First, it is submitted that the Council acted ultra vires when applying the dispensing discretion to the subject development. Secondly, it is submitted that even if it had the power to entertain the application under SEPP No 1, it misapplied its discretion by taking into account irrelevant factors. It is to be noted that no ca
se was made nor was there any suggestion that the Council acted in bad faith or that the decision it made was for an improper purpose.
The Council and the Developer both concede that if Legal & General and Comrealty succeed in one or other of the issues common to both, no question of judicial discretion arises. That is, both agree that the Court should formally declare the consent null and void. However, the Developer (but not the Council) submits that if Legal & General is unsuccessful and Comrealty is successful only on the additional argument referred to above, the Court would not, in the exercise of its discretion, make any order. The basis of the Developer's submission would appear to be founded partly upon the circumstance that the breach, if any, is insignificant and partly upon the application of some supposed tit-for-tat doctrine.
IS THE DEVELOPMENT PERMISSIBLE?
The application lodged with the Council on 20 June 1988 described the development as "residential apartments, small office, retail and restaurant tenancies and parking for 154 cars". The total floor space of the building is said to be 8000m2 of which 790m2 is proposed for retail/commercial/restaurant. The restaurant has a floor area of approximately 150m2. The remainder of the floor space is for the residential flat building comprising 139 units. The building is to be a 17 storey building described as a "residential and commercial building and associated car parking". The accompanying plans show retail space and restaurant on the "retail level" and office, lobby and restaurant on the lobby level. The lobby is the entrance to the residential flats. The 15 storeys above the lobby are for residential flats.
The essential argument on behalf of Legal & General and Comrealty is that the subject development is in fact a "residential flat building" alone and not a residential flat building "constructed in conjunction with" commercial premises because there is no intended use nexus between the residential flat building and the commercial premises.
Some emphasis was placed by Mr Tamberlin QC on behalf of Legal & General on the circumstance that when assessing the application the Council's planners tended to view it as primarily a residential flat building development. That is scarcely surprising in view of the circumstance that the residential flat building component of the development is the most significant in terms of scale and height. But that does not compel the conclusion that the application before the Council was for a "residential flat building" outside the provisions of Column IV. In my opinion, it is not necessary that there be a nexus of intended use between the residential flat building and the commercial premises. The expression "constructed in conjunction with" means "built together with" or "built at the same time as". The submission of the applicants conveniently overlooks the circumstance that the relevant phrase is not "in conjunction with"; it is "constructed in conjunction with".
In my opinion, there is no warrant for construing the expression "residential flat buildings constructed in conjunction with commercial premises ... " as requiring that the residential flat building subserve, or be used as ancillary to, a commercial use. The circumstance that the zone is "business commercial (restricted)" does not require an interpretation of the abovementioned phrase in the manner contended for by Legal & General and Comrealty. The interpretation I have placed upon it is, in my opinion, consistent with the intention of the instrument. The purpose of Column IV is to permit the Council to have a discretion as to what type or types of development it will permit. The wide range of permissible development leads me to the conclusion that it was not intended to restrict dwelling houses, boarding houses and residential flat buildings in the manner contended for by the submission of the applicants.
To give the words "in conjunction with" the meaning "auxiliary to" not only ignores the word "constructed" but also ignores the circumstance that provision is made in Column V for a separate use viz "ancillary office space". It follows, therefore, that the clause does not require any one of the uses in the expression "dwelling houses, boarding houses and residential flat buildings constructed in conjunction with commercial premises, shops referred to in Schedule 4 or commercial office space ... " to be subservient, or auxiliary, to any other use therein mentioned. It permits, in the instant case, three separate uses - "residential flat buildings", "commercial premises" and "shops referred to in Schedule 4". Accordingly, the principal submission of both applicants on the first issue is rejected.
I am of the opinion that Comrealty's separate and secondary submissions must also be rejected. The first, if I understand it correctly, is that a restaurant can never be part of the development because a "refreshment room" (as defined to include a "restaurant") is not relevantly a "shop in Schedule 4". In my opinion, there is no justification for such a restrictive interpretation of the provisions of the Ordinance. The expression "shops in Schedule 4", where appearing in the relevant phrase manes, in my opinion, any of the purposes referred to in Schedule 4. There is no sensible reason why "hairdressing salons" and "refreshment rooms" should be treated differently from the other ten purposes referred to in Schedule 4. But even if "refreshment rooms" (which by definition is a "restaurant") is excluded, it would not follow that the development is unlawful because it includes a restaurant. Column IV also permits "purposes referred to in Schedule 4 and shops referred to therein not exceeding 100m2 floor area. Bec
ause a "restaurant" is a "purpose referred to in Schedule 4", it is permissible. The area of the restaurant is approximately 150m2. In my opinion, the limitation on area viz 100m2 applies to shops but not to "refreshment rooms" otherwise the word "shops" would be unnecessary. Whether the expression "shops referred to therein not exceeding 100m2 floor area" refers to any one shop or to the sum of all shops proposed is not necessary for me to determine on the facts of this case but it would seem to me that it refers to any one shop.
State Environmental Planning Policy No 1
SEPP No 1 contains the following relevant provisions:
objectives etc. This Policy provides in the application of planning operating by virtue of development in any circumstances where strict any case, be unreasonable or or tend to hinder the attainment (ii) 6. Making of applications. Where development but for any development standard, be out under the Act (either with or the necessity for consent under the being obtained therefor, the person to carry out that development may development application in respect of development supported by a written standard is unreasonable or unnecessary in the of the case and specifying the 7. Consent may be granted. Where the consent is satisfied that the objection is founded and is also of the opinion that of consent to that development Policy as set out in cl 3, it may, with the to development application notwithstanding development standard the subject of the 5(a)(i) and (ii) of the Environmental Planning and Assessment Act relevantly provides that the objects of the Act are, inter alia,:
(i) the proper management, development conservation of natural and resources, including land, natural areas, minerals, water, cities, and villages for the purpose welfare of the community and a (ii) promotion and co-ordination of the and economic use and ... ".
It is agreed by all parties that clauses 12 and 14 of IDO 60 concerning floor space ratio and height limitation are relevantly "development standards" (see Quinn O'Hanlon Architects Pty Limited v Leichhardt Municipal Council 19 May 1989 unreported). Furthermore, the challenge in the present case is not directed to the performance by Mr Nangle of his delegated authority to concur on behalf of the Director. The challenge is to the decision of the Council to grant development consent.
It must be steadily borne in mind that the attack on the decision of the Council is not that it acted in bad faith or that it had an improper purpose. It is that it misunderstood the limits of its power (or, as Mr Tamberlin submits, its "jurisdiction") and/or that it took into account factors it was bound to disregard and that it acted unreasonably in the Wednesbury sense (see Associated Provincial Picture Houses (Australia) Limited v Wednesbury Corporation [1948] 1KB 223). It has been held in the United Kingdom and adopted by this Court that where Wednesbury unreasonableness is alleged with respect to a decision of elected aldermen in a planning matter, the burden is on the challenger to demonstrate, in effect, a decision verging on an absurdity (see R v Secretary of State for the Environment Ex parte Nottingham Shire County Council [1986] AC 240 and Regina v Hillingdon London Borough Council Ex parte Pulhofer and Another [1986] AC 484). In The Minister for Aboriginal Affairs v Peko Wallsend 162 CLR 24 Mason
J noted in regard to a Wednesbury unreasonableness challenge:
" ... A court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors lest it exceed its supervisory role by reviewing the decision on its merits".
In order to understand the submissions of all parties, it is necessary to set out some of the planning history. As I have already said, the statutory planning controls were, at the relevant time, those set out in IDO 60 which was made on 29 August 1975 and SEPP No 1. The subject land (being part of what has been referred to as the Milsons Point area) is zoned 3(d) under IDO 60. IDO 60 contains the standards in clauses 12 and 14 referred to above.
In 1982 the Council prepared a draft scheme for the municipality. The draft maintained the 3(d) zoning for the Milsons Point area and the same floor space ratio standard viz maximum 3.5:1 and, in any event, maximum 2:1 for commercial premises. The 1982 draft made no separate provision for a height limit. In December 1982 the Director issued a Certificate pursuant to the provisions of s 65 certifying that the draft could be publicly exhibited. The draft was exhibited between February and June 1983 and, I assume, submissions from the public were received by Council.
In 1986 the Council prepared another draft which was stated to apply to the whole municipality and was called the "North Sydney Plan 1986". Although the Council has regarded this and its subsequent "drafts" as being alterations to the 1982 draft pursuant to s 68(3) of the Environmental Planning and Assessment Act, I am assuming in this judgment, in favour of the applicants, that the North Sydney Plan 1986 did not relevantly meet the description of an "alteration" as that word must be understood. That is, I am prepared to assume in favour of the applicants that the "North Sydney Plan 1986" was for all practical purposes a new draft. For convenience sake, I will henceforth refer to it as the 1986 draft. The aims and objectives of the 1986 draft were, inter alia, to maintain and encourage existing residential areas in the municipality. The draft was adopted by Council in June 1987 but was not exhibited and was not submitted to the Department of Environment and Planning (the DEP).
In the 1986 draft, the subject land was zoned 2(e) (Milsons Point). Dwelling houses were permitted without consent and commercial premises, residential flat buildings and shops were permitted with consent. Clause 31 of the 1986 draft provided that commercial premises could not be erected if the floor space ratio exceeded 1:1. It further provided buildings could be erected to a height not exceeding 45m. The subject development is 45m high and has a floor space ratio of 15:1. However, the commercial area is only 1:1. The subject development is therefore in accordance with the 1986 draft.
It is clear that the development application lodged by the Developer in June 1988 was assessed by the planning department of the Council by reference to the objectives of the 1986 draft. It is also fairly clear that the DEP had some reservations about the 1986 draft because it took the view, apparently, that the changes proposed by the 1986 draft (which included, inter alia, rezoning the Milsons Point area from commercial to residential) had not been exhibited and should not therefore be included in the plan to be made. The Department took the view, it seems, (although it is not entirely clear), that these matters ought be deferred. Furthermore, the Department considered that the 1986 draft in its application to the Milsons Point area was contrary to the Direction G10 given by the Minister pursuant to s 117 of the EP&A Act. G10 provided that unless the Council could satisfy the Director that any particular area should be varied or excluded having regard to the provisions of s 5 of the Act, draft plans should
not "substantially alter the location of existing zonings or substantially reduce zonings of land for business development".
The above matters were the subject of lengthy reports by planning officers to Council. In 1988, the Council prepared another draft plan called the "North Sydney Local Environmental Plan 1988". The 1988 draft included provisions similar to those in the 1986 draft with respect to the Milsons Point area. I am assuming in favour of the applicants that the 1988 draft could not, as originally prepared, be an "alteration" within the meaning of s 68. That is, I assume, as I think is the fact, that the 1988 draft, as originally prepared, would require public exhibition before it could have been properly made. The 1988 draft was the subject of a number of reports in which reference was made to problems associated with, inter alia, the rezoning of the Milsons Point land from commercial to residential and to the diminution of the business areas contrary to Direction G10. Council was advised by its planning staff that it could exclude or defer certain areas from its 1988 draft (including the subject area) for further and
more detailed consideration. The Council took the view that it wished to submit the draft to the Department.
The planning staff made it clear to Council that the standards under IDO 60 and those under the draft exhibited in 1983 allowed for a maximum floor space ratio of 3.5:1 with maximum commercial floor space ratio of 2:1. Council was reminded that in 1986 when the land was proposed to be zoned Residential 2(e), commercial and office premises were to have a maximum of 1:1 but that the area was "primarily and predominantly to be used for permanent residential accommodation". The planners pointed out to the the proposal to reduce the commercial floor space ratio from 2:1 to 1:1 could be in conflict with Direction G10. They referred to the DEP's view that the change of zoning of, inter alia, the Milsons Point area would possibly require the exhibition of a special local environmental plan. The planners concluded that it was therefore not possible to include certain areas in the 1988 North Sydney LEP at that stage and that these areas should be deferred. Accordingly, it recommended in relation to the Milsons Point ar
ea as follows:
"(e) to defer the area of Milsons Point showing white on the attached plan from the zoning provisions of North Sydney LEP 1988;
(f) to retain IDO 60 and LEP 4, the current statutory zoning controls for the area.
(g) The Department be advised that the Council has resolved to do this because it now considers that the 3(d1) zoning of the DLEP is now no longer appropriate for the area".
The reference to the DLEP is, clearly enough, a reference to the 1982 draft which, as I have said, repeated the IDO 60 zoning and floor space ratio-standard for the Milsons Point area.
On 20 September the Council formally resolved to adopt the recommendations contained in the reports of the Planner subject to some modifications not here relevant. That is, Council resolved to exclude the Milsons Point area from the draft in accordance with the recommendation. At the meeting, one alderman asked what controls would apply to the deferred area and was told by Mr Nangle, the Council's
Chief Town Planner, that the statutory provisions of IDO 60 would apply.
As I have mentioned above, the development application was lodged in June 1988. It was accompanied by an objection under SEPP No 1 to the floor space ratio standard (cl 12) and the height standard (cl 14). The effect of the objection was that the 1986 draft which provided for a 45m height limit and a floor space ratio of 1:1 for commercial premises demonstrated that the old statutory standards in IDO 60 had ceased for all practical purposes to be effective. It is clear that the Council's planning staff generally adopted the submissions set out in support of the objection. In particular, the objection referred to development in the surrounding area that had been undertaken in recent years which was in accordance with the spirit of the 1986 draft and to the fact that the subject development was in keeping with the scale and size of the existing surrounding development.
The planning department considered the objection and reported to Council. It favoured the proposal and recommended that Council grant its consent. Objections, including those of Legal & General and Comrealty were considered. It is clear that the assessment by the planning department was made against the background that the development was in accordance with the 1986 draft. The planning reports acknowledged that the standards in IDO 60 were not met and recommended, at least by implication, that compliance with those standards was unreasonable or unnecessary in the circumstances of the case. Reference was made in the reports to the scale, overshadowing, design, streetscape, views, traffic generation etc. It was acknowledged in the reports that the increase in floor space ratio and the height were contrary to the objectives contained in IDO 60 but pointed out that the standards in IDO 60 would not allow for the scale of development presently existing in the immediate vicinity, for example, James Milson Square, t
he Legal & General building and the Friends Provident building. To these I would add Comrealty's building, a circumstance clearly known to the Council. The planners believed that the subject proposal was compatible with the surrounding development and that because it was largely residential it would have a lesser density than commercial development. It referred to the applicant's SEPP No 1 objection and recommended that in all the circumstances the objection should be upheld. On 5 December 1988 development consent was granted.
Before turning to the arguments of Legal & General and Comrealty, there is one further factual matter requiring elaboration. Considerable emphasis was placed by the applicants upon the fact that at the meeting of 20 September 1988 the Chief Town Planner, Mr Nangle, told an alderman that with respect to the deferred matter (which included the Milsons Point area) the provisions of IDO 60 would apply. The applicants submit that the resolution of the Council of 20 September 1988 precluded it from taking into account the planning history of the area and that, in particular, it was obliged to ignore the provisions of the 1986 draft with respect to the subject development application. Although Legal & General and Comrealty have concentrated upon the deferral of the Milsons Point area, it must be remembered that the Council was dealing with a matter of general application. The resolution on the 20 September 1989 was concerned with the municipality as a whole. It dealt with the Milsons Point area in that context and a
gainst the background of the DEP's reservations. I think it is important to note that the resolution of the Council on 20 September 1988 to defer the Milsons Point area from the 1988 draft and to retain IDO 60 also made reference to the fact that the Council considered that the zoning and standards in IDO 60 were no longer appropriate for the area. It is not correct, therefore, to state that on 20 September 1988 Council resolved to abandon its planning objectives for the Milsons Point area as set out in the 1986 draft. The statement to the alderman by Mr Nangle referred to above was no more than a correct statement of the legal position except that he omitted to mention that the provisions of SEPP No 1 also applied. His statement was not, and could not be construed as, a statement that SEPP No 1 could not apply to any standards in IDO 60. But however that may be, when the Council considered the subject development application about two months later, it cannot be assumed other than that the Council was well aw
are of what happened at the meeting on 20 September 1988.
In a number of cases in the Land and Environment Court it has been stated that although the dispensing power under SEPP No 1 should not be given a limited operation, generally speaking it ought not be used as a means to effect "general planning changes" throughout the municipality (see SCMP v North Sydney Municipal Council, unreported 15 April 1983, Michel Products Pty Limited v Randwick Municipal Council 46 LGRA 410, T& P Concrete Pty Limited v Kempsie Shire Council unreported 17 December 1985, Hooker Corporation v Hornsby Shire Council unreported 2 June 1986, Hooker Rex Estate v Hornsby Shire Council unreported 27 July 1983). It was said, correctly in my respectful opinion, in Hooker Rex Estates that SEPP No 1 is not a "general planning power" to be used as an alternative to the plan making power conferred by Part III of the Environmental Planning and Assessment Act. However, it must be clearly borne in mind that the cases referred to above were concerned with whether the Court, in the exercise of its plann
ing discretion, considered it appropriate to uphold an objection under SEPP No 1. No questions of law were involved. In Colvest No 27 Pty Limited v Hastings Municipal Council (22 March 1988) the Court was concerned with a large development involving the erection of 72 dwellings. The largest lot in the subdivision was only a little over half the standard size, most lots were well under half the standard size and all lots had less than the minimum width. The Court made it plain that the objection was dismissed in the exercise of the Court's discretion and not because it lacked the power.
To date the Court has had no occasion to attempt to define the limits of the dispensing power based upon an objection that compliance with the standard is unnecessary or unreasonable in the circumstances of a case. It has expressed the opinion that an objection is well founded if it is shown that the underlying purpose of the development standard is satisfied by the particular development proposed (see SCMP Properties Pty Limited v North Sydney Municipal Council 15 April 1983 unreported. See also Hooker Corporation Pty Limited v Hornsby Shire Council 7 June 1986). But later cases have demonstrated that the identification of the "underlying purpose or object" of the standard and an examination as to whether that purpose or object is satisfied by the proposed development is only one of the tests (see Stein J in North Sydney Municipal Council v Parlby 13 November 1986). See also North Shore Gas Company v North Sydney Municipal Council 15 September 1986 in which Stein J held that compliance with a development sta
ndard was unnecessary and unreasonable for the reason, inter alia, that the standard had been virtually abandoned or destroyed by council's own action. In Parlby Stein J held that considerations under s 90 are "relevant circumstances of the case".
Mr Tamberlin's first submission is that the Council lacked the power to grant dispensation. He submits that to dispense with the standards found in clauses 12 and 14 is relevantly "tantamount to a rezoning of the land". Whatever force such a submission might have in a merit appeal to the Court, it adds little, in my respectful opinion, to the solution of the present problem. If the words "tantamount to rezoning" are to be taken mean that the upholding of the objection under SEPP No 1 would have the result that certain provisions of the statutory planning instrument would not apply to the subject application, the short answer is that that is what is contemplated by SEPP No 1. If however it is intended to mean that to uphold the objection would be to rezone the land to "residential" that simply would not be so. The land remains zoned commercial under IDO 60. The uses that are proposed are those uses which are permissible under that zoning.
The width of the Council's discretion is to be found in SEPP No 1. The ambit of the discretion must be determined from the subject matter, scope and purpose of the planning instrument. It provides, in terms, that an objection may be made that compliance with a standard is "unreasonable" or "unnecessary" in "the circumstances of the case" and that if the consent authority is satisfied that the objection is well founded and is also of the opinion that the grant of consent is consistent with the aims of the Policy, it may, with the concurrence of the Director, grant development consent. As I have said, it has not been claimed that the Council was acting in bad faith or had some improper purpose. It had regard to planning matters in its consideration of the objection. In my opinion, it was open to the Council to consider the planning history, as a circumstance of the case for the purpose of determining whether compliance with the standards in IDO 60 was unreasonable or unnecessary. The fact that there was no stat
ed identification of the purpose of a site specific height standard, for example, does not, in my opinion, demonstrate that the discretion has miscarried. I cannot accept, as I am asked by Mr Rigg, that the Council forgot about Cl 14. The Council must be assumed, in the absence of evidence to the contrary, to know its own statutory scheme. In any event, cl 14 together with cl 12, was the subject of an objection under SEPP No 1.
It would seem to me that if a council knew a new scheme was about to be made having the effect of significantly varying standards presently in existence under a statutory scheme, it could have regard to that circumstance to determine whether compliance with earlier standards was unreasonable or unnecessary in the circumstances of the case. The circumstance that, in the present case, the Council had deferred the Milsons Point area, pro tem as it were, from its 1988 plan is a circumstance that goes to weight and weight only.
In Minister for Aboriginal Affairs v Peko Wallsend 162 CLR 24, Mason JA at p 40 referred to the limited role of a court when reviewing the exercise of an administrative discretion and to the fact that "where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion is similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may legitimately have regard". (See also Swan Hill Corporation v Bradbury 56 CLR 746.)
The discretion vested in councils under SEPP No 1 is wide and, subject to limitations to be found in the instrument itself and in its relation to the Environmental Planning and Assessment Act, is unconfined. The express limitation is that the council must be of the opinion that the objection is well founded and the grant of consent is consistent with the aims set out in cl 3 of the Policy. The implied limitation is that the discretion must be exercised by reference to planning considerations the width and generality of which is to be found in s 5 and s 90 of the Environmental Planning and Assessment Act. The above interpretation of the width of the discretion derives essentially from SEPP No 1 itself, the validity of which was not challenged. Moreover, I can see no reason in principle why the discretion should not be wide. The purpose of SEPP No 1 is to provide flexibility in the decision making process. Parliament has entrusted to councils the function of administering some of the planning laws of the State.
SEPP No 1 is simply a planning tool designed to improve the decision making process. Furthermore, it should be remembered by those who, apparently, believe that councils should not be entrusted with such a wide discretion that the effectiveness of the exercise of the council's discretion is itself subject to limitation. For a consent under SEPP No 1 to be valid, it requires the concurrence of the Director of Planning. In the present case, concurrence was given under delegated authority and neither the delegation nor the exercise of the power has been challenged.
I am of the opinion that it has not been demonstrated that it was beyond the power of the Council to apply the dispensing power in SEPP No 1. Furthermore, I am of the opinion that it has not been demonstrated that the taking into account of the provisions of the 1986 draft amounted to the taking into account of an irrelevant factor. The 1986 draft was, plainly enough, a planning consideration. The Council did not resolve on 20 September 1988 to abandon the goals it set in 1986. But even if it did, it was not bound to adopt the resolution of 20 September 1988 forever.
I am also of the opinion that the attack on the exercise of the Council's discretion viz that its planning decision was "unreasonable" in the Wednesbury sense must also fail. It must be remembered that Parliament has entrusted to elected local government bodies the primary function of administering the planning laws of the State. In my opinion, it is not inappropriate to have regard to the observations of the House of Lords in Regina v Hillingdon London Borough Council [1986] AC 484 at 518:
"Parliament intended the local authority to be the judge of fact. The Act (The Homeless Persons Act) abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reasons to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative decision is abuse of power - eg bad faith, a mistake in construing the l
imits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity. See the speech of Lord Scarman in Reg v Secretary of State for the Environment Ex parte Nottinghamshire County Council [1986] AC 240, 247-248. Where the existence or non-existence is left to the judgement and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely".
The subject matter and scope of SEPP No 1 permits the exercise of a discretion covering a "broad spectrum ranging from the obvious to the debatable to the just conceivable". It has not been demonstrated that the Council acted perversely or that its decision verged on an absurdity. The circumstance that hitherto the Court has been more cautious in its application of the dispensing power than the North Sydney Council is not a reason for concluding that the Council's decision was "unreasonable" in the relevant sense.
In my opinion, the applications must be dismissed and I order accordingly. In each case the order is application dismissed. I reserve the question of costs.
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