Lyons v Sutherland Shire Council

[2000] NSWLEC 214

Land and Environment Court

of New South Wales

CITATION:	Lyons v Sutherland Shire Council & Anor [2000] NSWLEC 214
PARTIES:	APPLICANT William John Lyons FIRST RESPONDENT Sutherland Shire Council SECOND RESPONDENTS Ian Mayer and Kylie Ann Mayer
FILE NUMBER(S):	40157 of 1999
CORAM:	Sheahan J
KEY ISSUES:	Development Consent :- judicial review - assessment of DA - delegated authority - adequacy of consideration - manifest unreasonableness.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C Local Government Act 1993 s 378
CASES CITED:	Barmuncol Pty Ltd v Maroochy Shire Council (1983) 50 LGRA 309; Botany Municipal Council v The Minister for Transport (1996) 90 LGERA 81; Chisholm v Pittwater Council & Anor [2000] NSWLEC 143; Hortis v Manly Council & Anor (1999) 104 LGERA 43; King v Great Lakes Shire Council & Anor (1986) 58 LGRA 366; LaHoud & Associates Pty Ltd v North Sydney Council [1998] NSWLEC 22; Luu v Renevier (1989) 91 ALR 39; Minister for Immigration & Ethniic Affairs v Teoh 183 CLR 273; Parramatta City Council v Hale (1982) 47 LGRA 319; Parramatta City Council v Pestell (1972) 128 CLR 305; Person v Leichhardt Council (1997) 93 LGERA 206; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
DATES OF HEARING:	17-19/07/2000 and 21/07/2000
DATE OF JUDGMENT:	10/20/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr T Hale SC (Barrister) with Mr D Weinberger (Barrister) (17-18/07/2000) Solicitors Solari's FIRST RESPONDENT Mr C McEwen (Barrister) Solicitor Mr G Christmas (Council) SECOND RESPONDENTS Mr J E Robson (Barrister) Solicitors Xenos Jordan

JUDGMENT:

IN THE LAND AND Matter No.40157 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 20 October 2000

WILLIAM JOHN LYONS

Applicant

v

SUTHERLAND SHIRE COUNCIL

First Respondent

IAN MAYER and KYLIE ANN MAYER

Second Respondents

JUDGMENT

Introduction

1. In these class 4 proceedings, the applicant (“ Lyons ”) seeks:

(a) a declaration that a development consent (“ DC ”), granted by the First Respondent, Sutherland Shire Council (“ Council ”), to the Second Respondents (“ Mayer ”), is invalid and of no effect; and
(b) an order restraining any development pursuant to that consent.

2. Council’s consent to the relevant development application (“ DA ” No.99/3503), which was lodged on 10 June 1999, was granted on 4 August 1999, by its Environmental Assessment Officer, Peter Lupevski , allegedly pursuant to delegated authority.

3. The Mayers obtained that consent to add a storey to their residential property at 739 Port Hacking Road, Caringbah (“ No.739 ”). Lyons owns the land and house known as 733 Port Hacking Road, Caringbah (“ No.733 ”), located to the south of, uphill from, but (despite the numbering) immediately adjacent to, Mayer’s house (see Exhibit L1 ).

4. Both houses overlook, and enjoy quite beautiful views of, the waters of Port Hacking/Dolan’s Bay/Burraneer Bay, generally to their north, and it is conceded that the Mayer extensions will interfere with some of the major views currently enjoyed by Lyons.

5. The Lyons challenge requires judicial review of the Council’s decision to grant the DC, and the merits of the Mayer proposal, and/or of the Lyons house, are not central to the determination of such a challenge. (See discussion in Hortis v Manly Council & Anor (1999) 104 LGERA 43, at 44-5, and cases cited therein).

6. The court has been asked to determine in this case the following issues:

1. Whether the development consent was granted in breach of s. 79C of the Environmental Planning and Assessment Act 1979 (“ EP&A Act ”), particularly whether the Council failed to consider the matters referred to in s 79C (1) (a) (i), (b), (c), (d), and (e).

2. Whether the Council’s decision to grant consent was manifestly unreasonable, in that:
(a) Council failed to take into consideration the following:
(i) the heritage significance of Lyons’ property and the fact that it was specifically the subject of a draft planning instrument;
(ii) the impact of Mayer’s proposal on the heritage significance of the Lyons’ property, its views, and its privacy;
(iii) the impact of the scale and bulk of Mayer’s proposal on Lyons’ property;
(iv) the objectives of the relevant planning instruments;
(v) the submissions made to the Council with respect to these matters; and
(vi) a submission from Planning Collaborative on Lyons’ behalf dated 6 July 1999.
and/or
(b) Council took into account irrelevant matters in its determination of the development application.

3. Whether Lupevski was empowered to grant the consent, and/or validly exercised such a power.

7. The Mayers also raised discretion.

8. I have determined that the Lyons challenge fails , and I set out my reasons below.

Relevant provisions of the EP&A Act

9. Section 79C of the EP&A Act states:

(1) Matters for consideration - general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument...
...
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.

Relevant provisions of planning instruments and documents

10. Both the Mayer and Lyons properties are:

(a) within the “ Residential 2 (e2) ” zone under the Sutherland Shire Local Environmental Plan 1993 (“ the 1993 LEP” - Exhibit S1 );
(b) within the designated “ Foreshore Scenic Protection Area ” defined in the “ Foreshore Development - Development Control Plan ” (“ the DCP ” - Exhibit S2 );
(c) affected by the “ DCP for the Advertising and Neighbour Notification of Development Applications ” ( Exhibit S3 ).
(d) covered by the proposed new “ whole-of-shire ” LEP ( “the draft LEP” - Exhibit S8 ).

The 1993 LEP

11. The Zoning Table pursuant to cl 18 of the 1993 LEP includes, inter alia, in the objectives of residential zone 2 (e2) ( Exhibit S1 p22):

(1) Objective of the zone
A low density residential environment in an environmentally sensitive locality, which is:
...
(b) protected from overdevelopment or visually intrusive development, especially where development is within view of any waterway or contains significant stands of remnant bushland.

12. The Table goes on to provide the following “Description of the zone” :

This zone applies to land with special environ-mental (sic) qualities that is generally located in foreshore areas and which should be protected. Development in this zone is characterised by one to two storey detached houses, many on large lots, with some cluster housing and dual occupancy housing scattered throughout the zone. Other common features are mature remnant bushland, moderate to steep land, water views, and in some cases, water frontage.…The view of development from the waterway is an important feature in the assessment of applications.

13. Clause 21 deals with Height Limits and states (cl 21(1)(b)) that new development should “ minimise impacts from development on loss of privacy, overshadowing and views ”.

14. Clause 21 (2) states that:

Except for housing for aged or disabled persons and in the 2 (c) Residential zone, all development must not exceed a height of:

(a) 7.2 metres to any point on the uppermost ceiling; and
(b) 9 metres to the highest point on the roof.

15. Clause 23 deals with “ Special Considerations” , and relevantly provides:

Before consent is granted to any development in any residential zone the council must be satisfied that the applicant has considered the following and must take into consideration the following:

(a) the impact the proposed development may have on adjoining development from loss of sunlight, views and privacy;
...
(d) if the development is proposed in the … 2(e2) Residential zone, its effect on the adjoining development in terms of size, bulk, height and amount of built upon area;
...
(f) any adverse impacts on the natural and built environment;
...

16. Schedule 3 to the 1993 LEP lists a large number of “ Heritage Items” including a house at No.698, and a convent at No.742, Port Hacking Road South, but nothing in the immediate vicinity of Nos.733-739.

17. In respect of scheduled heritage items, the 1993 LEP relevantly provides:

13A. Protection of Heritage items and relics

1. The following development may be carried out only with development consent:
(a) demolishing or damaging a heritage item;
(b) altering a heritage item by making structural changes to its exterior;
(c) altering a heritage item by making non-structural changes to the detail, fabric, finish or appearance of its exterior;
(d) moving a relic, or excavating land for the purpose of discovering, exposing or moving a relic;
(e) erecting a building on, or subdividing, land on which a heritage item is located.
2. Development consent is not required by this clause for development specified in Schedule 4 or for any other development if the Council considers the proposed development would not adversely affect the heritage significance of a heritage item.
3. When determining a development application required by this clause the Council:
(a) must consider the affect of the development on the heritage significance of the heritage item and its setting;
(b) may consider any conservation plan that assesses the impact of the proposal on the heritage significance of the item and its setting;
(c) must, in the case of a heritage item that is of State or regional significance (as indicated in Schedule 3) notify the Heritage Council of its intention to consent to the demolition of the item and consider any comments received within 28 days after the notice is sent.

13C. What incentives apply to heritage items?
The Council may consent to development of a site of a heritage item which is a building regardless of any other provision of this plan provided it is satisfied that:
(a) the proposed development would not adversely affect the heritage significance of the heritage item; and
(b) the proposed development would have little or no adverse effect on the amenity of the area; and
(c) conservation of item will be carried out to the Council’s satisfaction.

The DCP

18. The DCP ( Exhibit S2 ) has a number of objectives and guidelines for residential development. Clause 5 - “ Site and Landscape Analysis ” provides:

All development requires perceptive and effective site planning. Good site analysis and design skills are therefore essential in achieving a pleasant living environment for occupants and minimising the impact on neighbours.

Objectives:
...
When any development is proposed to be built amongst existing dwellings, the design must take into account factors extending beyond the site including:
a. the location and use of neighbouring sites;
b. potential constraints relating to overshadowing, overlooking, views, building bulk, landscaping and screening;

...

19. Clause 7 sets out the “ Aims of the Plan ”, including:

....
5. Minimise the obstruction of water views and have regard to the amenity of adjoining properties.
....

20. Under clause 8 - “ Design & Siting of Dwellings ”, Clause 8.1 - “ General ” states, inter alia, the following objectives:

...
c. That dwelling designs have regard to preserving existing views;
d. That dwelling designs have regard to the impact on the amenity of the adjoining development and surrounding properties.

21. Clause 8.2 - “ Floorspace Ratio and Landscaping” provides for the objective:

...
(b) to limit the bulk of the dwelling
...

22. Clause 8.5 - “ Building Line” provides for the objective:

(a) Dwellings to have regard to the likely appearance from adjoining allotments;
....

23. Clause 8.7 - “ Decks, Verandahs and Balconies” provides for the objective:

(a) To have regard to the amenity, use, privacy and enjoyment of adjoining properties
...

Draft Planning Instruments

24. Apart from the draft LEP ( Exhibit S8 ), to which I will later refer, the court’s attention has been drawn to two other draft planning instruments.

Amendment 57

25. “ Amendment 57 ” ( Exhibit S7 ), had been exhibited at the time Council purported to grant the subject DC, and deals with residential land, and contains town planning controls relevant to Council’s residential strategy.

26. The “ Objective ” it states for residential zone 2 (e2) relevantly includes the following:

(1) Objective of the zone
A low density residential environment in an environmentally and visually sensitive locality:
...
(b) protected from overdevelopment or visually intrusive development, especially where development is within view of any waterway or on sites which contain significant vegetation or natural features that should be preserved
…

27. The “ Description of the zone” is stated as follows:

This zone applies to land with special environmental qualities that could include mature remnant bushland, moderate to steep slopes, water views and in some cases, waterfrontage. The average lot size in this zone is larger than in the 2(e1) Residential zone.
The zone is characterised by dwelling houses, but some cluster housing developments may occur on larger lots. Development in this zone is either 1 or 2 storeys and designed to reflect the environmental sensitivity of the waterfront environment.
…

28. Clause 20 deals with Height Limits and cl 20(1) states the objectives of such limits, including:

(b) minimise adverse impacts from development on adjoining or nearby properties due to loss of privacy and views, and overshadowing;

29. Clause 20(2) contains the actual height limits, and they are in the same terms as cl 21(2) of the 1993 LEP.

30. Clause 22 deals with “ special considerations ” in generally the same terms as cl 23 of the 1993 LEP.

Draft LEP

31. Mr McEwen indicated that the draft LEP, which will cover the whole of the shire, will overtake Amendment 57 as well as the 1993 LEP (T.25), but that document is not of much relevance to the substance of these proceedings.

Amendment 99

32. “ Amendment 99 ” ( Exhibit S5 , folios 2, 4-6) is designed to add No.733 to Schedule 3 of the 1993 LEP, as an item of heritage (after the entry covering No.742), and is of some relevance to these proceedings.

33. If Amendment 99 were to be gazetted, clauses 13A and 13C of the 1993 LEP would apply to the Lyons house, with the result that, most likely, very little, if any, alteration to the Lyons house would be permitted in the future.

34. However, the 1993 LEP does not contain, and Amendment 99 would not add to it, the relatively common clause the court finds in planning instruments, requiring that Council take into account the proximity of a heritage item when assessing a DA such as Mayer’s (See T.18 L35ff). Here the Lyons property might well become a scheduled heritage item, but it is not so yet, even though its historical and architectural significance is freely acknowledged.

35. Lyons’ advisers agree that the making of Amendment 99 would not affect the correct method of assessment of any DA for the Mayer house (T.69 L.5ff).

36. Neither the statutes nor the planning instruments create any obligation on Council or Mayer to protect Lyons’ view over Mayer’s property.

37. The water views from Mayer’s property, and from those “ below ” it, are protected by covenants, but Lyons’ property does not have such protection (T.13, 69 and 86), even though he claims he sited his house to allow view sharing with the homes behind/above it (T.104.L33ff).

The Lyons house

38. The court has had the benefit of a model of the Lyons house ( Exhibit L2 ), some original plans ( Exhibit L3 and Exhibit L13), and many photographs depicting its major relevant features ( Exhibit S9 , Exhibit L8 , Exhibit L9 item 1, and Exhibit L10 ).

39. It is not disputed that that Lyons’ house is of some significance. It was designed by Robin Boyd , a leading architect in the 1960s from Melbourne, and has been featured in several major publications about Boyd’s life and work (see Exhibit L4 , Exhibit L5 and Exhibit L11 ).

40. It is the only Sydney building designed by Boyd ( Exhibit L6 p169), and it has been both classified by the National Trust ( Exhibit S5 p32), and included in the Royal Australian Institute of Architects’ register of “ 20th Century Buildings of Significance ”. Boyd designed it in close collaboration with Lyons himself, in 1967-68, and the interiors were in part created by famous interior designer Marion Hall Best. It has been the Lyons family home “ for more than 40 (sic) years ” ( Exhibit S5 fol 2).

41. The accommodation is arranged around a central swimming pool and associated deck, with a strong main outlook axis towards the north-east across the Mayer property. This outlook is to take advantage of the northern views of Dolan’s Bay and Burraneer Bay, as well as maintaining maximum amount of sunlight to the pool and deck areas, protection from strong southerly winds, and the benefit of north easterly cooling sea-breezes in summer.

42. Consequently, the house is designed in a U-shape, where the main views are across the deck, and out of the large windows facing north east. The remaining windows are small high sill windows, so designed due to the structural nature and design of the home (See photographs 9 & 10 of Exhibit L8 ). This means that views are not available from viewpoints in the house, other than those facing north. The evidence is clear that the house is “ at the limits of its ability to stand further alteration ” (T.95.L28-9).

43. The views from the kitchen and some other internal living areas are not affected by the Mayer proposal (T.98.L32ff), but Lyons complains that the deck view is integral to the design, and that the “ whole design philosophy has been challenged ” by Mayer’s proposal ( Exhibit S7 fol 37), when the Mayers could obtain their desired additional space in “ much more sympathetic ways ”, without interfering with that view (see generally T.90).

44. A letter dated 6 July 1999 from Robert Staas emphasises the importance of the views from the Lyons house ( Exhibit S4 , page 58):

The original owners of the development site placed height covenants upon development to their north to protect these important views and despite the maturation of landscaping in the area each house maintains a substantial view share which enhances the amenity of the houses. The Lyons House was particularly designed to capture these views from the major central open courtyard and the living spaces which are largely internalised by the design. The main views which form part of the design intent of Boyd for the house are those to the north from the central deck area and kitchen and to a somewhat lesser extent to the east from the living room. Loss of these views will reduce the significance of the item as originally conceived and executed.

45. In a letter to the Council dated 28 October 1999, Lyons voiced his concerns about the development proposed for the adjoining property, which could adversely affect the heritage significance of his property ( Exhibit S6 ). He has made several requests that his property be formally listed in the Sutherland Shire Heritage Schedule, hence its inclusion in Amendment 99.

The Mayer Proposal

46. Mayer completed his purchase of No.739 in March 1999, in the knowledge that Lyons would have concerns about expansion of that house.

47. Mayer sought to address those concerns in plans submitted to Council, and he alerted Council to Lyons’ concerns. The DA included a Statement of Environmental Effects (“ SEE ”) - see Exhibit S4 and T.60.L55ff. The author of that SEE, Brian O’Dowd , analysed the requirements of the relevant instruments and concluded that all “ numerical ” matters such as floor space ratio, setbacks, height and landscaping were within the standards set by the LEP and DCP (see Exhibit S4 , page 13 and 17). These compliances were conceded by Lyons (T.23-24) and his advisers (T.69.L20ff).

48. There is no doubt that there is a significant impact on a large proportion of the water views from the deck and northern windows of the Lyons house as a result of the Mayer proposal, but, as mentioned earlier, the Court is not reviewing the DC decision on its merits.

49. Mayer lodged the DA on 10 June 1999; the neighbours were notified on 23 June 1999; and it was advertised on 29 June 1999. Numerous objections were made on behalf of Lyons. Consultant Town Planner Michael Ball of Planning Collaborative and heritage consultant Robert Staas of Noel Bell, Ridley Smith & Partners, wrote on 6 July 1999, and Lyons’ Solicitor, Michael Solari , wrote on 9, 12 and 20 July, as well as the National Trust and Royal Australian Institute of Architects (“ RAIA ”).

50. Lyons “ involved ” Ball and Staas before he had met Mayer (T.93.L.27ff) to hear of his proposal. Staas first visited the Lyons house in September 1998, on behalf of the RAIA, and told the court he had received no payment from Lyons (T.94.L.40ff).

51. Staas made a particular request to Council that the proponent be requested to “redesign, relocate or reduce the bulk of the first floor development which...severely affects the setting of the Heritage item and the amenity of the occupants of the house” (see Annexure E, Staas Affidavit 23 February 2000) . He also gave his expert opinion that any reasonably competent heritage consultant making an assessment of a proposal within close proximity to a heritage item should make an adequate assessment of its potential impacts thereon. Staas included in his affidavit the standard questions used by the Heritage Council of NSW when assessing a development in the vicinity of a heritage item (See Annexure ‘ F ’).

52. Solari , in his letter dated 9 July 1999 ( Exhibit S4 , page 64-5) to Lupevski made criticisms in response to the SEE prepared by O’Dowd. His letter of 12 July forwarded the photographs in Exhibit L7 , which had been taken, on Ball’s advice or instructions, prior to the DA being lodged. In view of all the other evidence, the court has concluded that Solari comprehensively summarised and illustrated Lyons’ submissions in opposition to the Mayer proposal.

53. Ball is well-known to Council and works for both opponents and proponents of developments (T.193). His letter to Lupevski dated 6 July 1999 (Annexure ‘ M ’ to Lyons’ affidavit 30 November 1999 fols 53-55) stated his expert opinion in assessing the development application and its potential impacts.

54. Ball submitted that the size, bulk and height of the proposal were excessive in the context of the siting, design and orientation of the Lyons house, and believes they were not properly examined by the decision-maker. Ball considers that the proposal will cause unreasonable adverse impacts to the house and breaches several DCP clauses (e.g. clauses 7(5), 8.1(c), 8.2(b), 8.5(a), 8.7 (a).

55. He submitted that it should have been apparent to any experienced Council assessment officer that the adverse impacts on this potential heritage item would require extra consideration for this specific case, and such a case, which poses so many complexities and difficulties, should be assessed by an experienced town planner employed by, or engaged from outside, the Council (See Ball’s affidavit 14 January 2000, page 8).

56. Ball’s letter also discussed “ view sharing ”, and suggested that there was “a myriad of alternative designs which could achieve a substantial increase in floorspace for this site but which would not block water views” from Lyons’ house.

57. There is no evidence that Ball’s letter actually reached Council, and/or the Council file, and Lupevski testified he neither saw nor considered it when reaching his decision to approve the Mayer proposal. Ball testified that he sent the letter by fax, and then posted the original from Hobart (T.66.L.15ff), and Mr Hale submits that it is “ inconceivable ” that both communications could go astray.

58. In his oral evidence, Ball acknowledged O’Dowd’s expertise, but disagreed with his views (T.80). He added little to his letter or affidavit, but expressed the view that the Council could approve the DA only if it did not fully consider all relevant aspects of it (T.82.L.13-15) - the closing off of the Lyons view, the visual impact of the Mayer proposal on the Lyons’ house, and the “ heritage and architectural value ” of the Lyons’ house.

59. He supported extension of the Mayer house to its west (T.78-79), due to its lesser impact, even though it would require the upholding of an objection under State Environmental Planning Policy No.1 (“ SEPP1 ”).

60. Mayer gave evidence that he considered all the alternative proposals put to him, but they were more costly, and/or did not comply with the strictures of the 1993 LEP (T.211).

61. In the end analysis, what Lyons complains about is that the Mayer extension moves a blank facade of the Mayer house upwards, and in a southerly direction, in such a way that it will present about 4 metres from Lyons’ deck, topped with a roof line approximately 2 metres above the level of that deck, blocking the views from and across the deck.

62. In context it should be noted that the 4m separation complies with all stipulated setbacks. The common boundary is properly construed as a rear boundary to Mayer’s property, in respect of which no minimum setback is prescribed, but if it were construed as a side boundary, its setback of 1.55m exceeds the 1.5m prescribed.

The delegation

63. The Council’s General Manager has, pursuant to s 378 of the Local Government Act 1993, delegated certain powers and functions to Council officers.

64. Relevantly to this matter, Council claims that Lupevski was delegated, by instrument dated 6 July 1998, the responsibility for the assessment and determination of Mayer’s DA (see Lupevski’s Affidavit 10 February, 2000, Annexure ‘ A ’ fols 7-13, especially 9-10).

65. Lupevski trained as an architectural draftsman. He has been employed by Council since 6 May 1991, was a “ district building surveyor ”, and is now an “ environmental assessment officer ”. As such, he assesses development applications, in particular proposals for new dwellings and additions to existing dwellings within the foreshore protection area.

66. The delegation instrument delegates (Lupevski’s Affidavit 10 February, 2000 Annexure ‘ A ’ p7) “…powers, authorities, duties and functions … which shall have been delegated to the General Manager by the Council …or the Mayor, and subject to exception noted below to which the delegation is made”.

67. Under the section headed “Development Applications under the Environmental Planning and Assessment Act”, cl (A) of the delegation relevantly provides that it does not empower Lupevski to “ process, evaluate and determine ” any residential development comprising more than three storeys, nor empower him to grant approval where:

(iv) upon public notification, as necessary, the development proposal brings forward relevant and well founded objections which cannot be reasonably satisfied by conditions of consent or where the objection relates to a matter or matters that are reasonable grounds for refusal.
(v) a proposed development does not strictly comply with the numeric standards contained in environmental planning instruments, development control plans and policies UNLESS:
(a) the proposed development satisfies the objectives of the environmental planning instruments, development control plans and policies; and
(b) strict compliance with the numeric standards would be unreasonable or unnecessary in the circumstances; and
(c) the departure from any one or more of the numeric standards for floor space ratio, minimum site area, building height, landscaped area and foreshore building line does not exceed a variation greater than 10% of the standard; or
(d) the departure from any one or more of the numeric standards not listed in (c) above does not exceed a variation greater than 20%.

68. While the above exception (v) is not enlivened in this case (T.50), I have set it out to illustrate that the Council has purported to delegate to Lupevski even some discretion to exercise the dispensatory power provided to Council by SEPP1. As framed and considered, Mayer’s proposal made no SEPP1 objection, and did not need one to be upheld in order for DC to be granted.

69. Mr Hale submits that Lupevski was not empowered, under the delegation, to grant development consent to Mayer in the circumstances of this case, because Lyons’ objections were as a consequence of public notification and were “ well founded ”.

70. Mr McEwen, for the Council, contends that, under clause A(iv) and (v), any objection must satisfy the criteria of being both relevant and well-founded. In this case, he submits that the objection was relevant, but not well-founded. He relies on LaHoud & Associates Pty Ltd v North Sydney Council [1998] NSWLEC 22 (26 February 1998), in which Pearlman J, in interpreting the term “ well-founded ”, said (p4-6):

…It is not sufficient that a person is subjectively of the opinion that he or she is likely to be affected; there must be an objective factual basis for the objection.

Moreover, the objection should disclose a real or material impact, and not one that is incidental or slight.
…
In those circumstances, the Court is required to form an opinion as to whether the objection is “well-founded”. That opinion must be formed in the planning context, that is, having regard to the planning controls which the LEP is designed to achieve.

71. The factual circumstances in LaHoud were relevantly similar to this case in that “ there were (sic) a number of objections based on loss of views” (p5) .

72. Her Honour came to the conclusion (p7):

Although Mrs Ferguson’s objection is based on objective fact, and the impact which it raises is real and material, it is not an objection which would, in a planning context, require a conclusion that the residential flat building should not be built at all. Her view will be impeded, but it will not be obliterated....I conclude, for these reasons, that no ‘well-founded’ objection has been raised, and the proposed development is permissible.

73. As Mr McEwen submitted, it is not sufficient that the objection raises matters that are important, or that there may be good grounds for it. It must be relevant, well-founded, and persuasive. Further, an additional element is required, namely that the objection requires that action be taken to address it. Mr McEwen relies on the reference in (A)(iv) to “ conditions of consent ” and “ reasonable grounds for refusal ” to support that submission (see par 2.6 of his written submissions).

74. The fact that views would be lost by/from Lyons’ property cannot deprive the delegate of the approval power. The opinion must be formed by the delegate as to whether the objection requires action. Therefore, if it is reasonably open to determine that no action is required, beyond imposition of conditions, then the power to approve is preserved (see T.244).

75. I accept Mr McEwen’s submissions on this point.

76. Mr Hale also submits that Lupevski lacks the necessary (formal) qualifications in architecture, heritage or town planning, and so could not understand the DA and its implications adequately in order to determine it. However, there is no specific requirement in the EP&A Act for assessment officers to have formal “ town planning ” qualifications. The consideration of the statutory requirements pursuant to s 79C does not demand the involvement of a town planner, even though it contended on Lyons’ behalf that “ a competent, skilled town planner … would not have approved or recommended the application ” (T.47).

77. I am satisfied that Lupevski was properly delegated the power to determine this DA.

78. While he is not a town planner, and was, in his evidence, somewhat sceptical of their work, he has relevant expertise and experience to discharge Council’s functions under s 79C of the EP&A Act, as specified in the instrument of delegation, and there is no evidence that he did not do so.

79. Hence the court must now turn to the essential question whether he, as the decision-maker, could reasonably reach the decision he made in this case, and whether he acted within the bounds of his discretion.

The progress of the DA towards consent

80. Mayer had taken his architect to see Lupevski before the DA and SEE were lodged on 10 June 1999.

81. Without fully acquainting himself with all aspects of the DA and the SEE, Lupevski visited the Mayer property on 23 June 1999. He testified that he was not aware at that time of any representations which had been made, or any pressure applied to the Council, for or against the DA (see Exhibit S6 ).

82. The DA was then advertised and notified to neighbours. The time for objections and submissions ended on 13 July 1999. During that time Lupevski took a call from Solari. (Such calls from solicitors are, apparently, not unusual - T.128). Lupevski relied on Council’s “ comprehensive ” correspondence procedures to ensure that all relevant communications about the DA were placed on the Council file (T.148), which was then returned to him for action. It was then that he came upon the photographs in Exhibit L7 , indicating Lyons’ contentions about the view impact of the Mayer proposal.

83. Lupevski then more closely examined all the documents in the file (including the SEE). He testified that he had an “ open mind ” and was still neutral about the matter, but had some doubt about the accuracy of the view impacts, as depicted in the photographs in Exhibit L7 , and he took them with him on his second visit to the Lyons property, on 2 August 1999, to check. At that time he was also aware of Staas’s comments regarding the significance of the Lyons house (T.158), and he had a discussion with Mrs Lyons about the house.

84. He then completed the Council’s DA assessment “ checklist ” (or “ prompt sheets ” - T.158), and noted some matters on it/them (see Exhibit S4 fols 84-90, and Annexure ‘ M ’ of Lupevski’s affidavit 10 February 2000). He did not tick the box indicating that a town planning report was required (fol 87), but formed the view that one was not (T.146).

85. He acknowledges:

(i) that he was aware of references in the file to a submission from

Ball,
(ii) that he looked for same in the file without success (T.136),
(iii) that it may have been relevant to his assessment (T.141), and
(iv) that, despite several “ prompts ” about it not having come to his notice
(T.148), he did not make any effort to get it from either Ball or
Solari (T.140).

86. He testified that he expected the Ball submission would support the other material submitted on Lyons’ behalf, especially Solari’s comments, and argue the contrary of the views expressed in the SEE by O’Dowd, upon which he relied to some degree (see T.139, 142, 147), but that he did not consider town planning issues to be “ paramount ” to his consideration of the Mayer DA (T.134).

87. He rejected the suggestion that he did not seek it out because he realised it would not be “ helpful ” (T.141), but he acknowledged that if he had seen the Ball submission at that time he would have called Ball to discuss possible alternative development schemes (T.167).

88. Lupevski granted the consent on 4 August 1999 (see Exhibit S4 , fols 91-95 and annexure ‘ N ’ to affidavit 10 February 2000), after reconsidering his earlier preliminary assessment and canvassing the matter with his supervisor, Mr Hanley, as he apparently often did (T.199).

89. Despite the lack of consideration of the Ball submission at the time of Lupevski’s exercise of the delegation, it is clear from the evidence that Lupevski took into account:

(i) the DA documents, including the SEE;
(ii) the 1993 LEP;
(iii) the draft Amendments and draft LEP;
(iv) the DCP;
(v) the Solari submissions;
(vi) the significance of the Lyons house (as put by Staas);
(vii) the photographs in Exhibit L7 and those he took himself;
(viii) the rationale of the Boyd design so far as views were concerned (T.159);
(ix) the possible limitations on Lyons’ capacity to compensate for any loss of views (T.160-1); and
(x) the fact that alternatives may be available to Mayer, but were not acceptable to him.

90. Mayer put to Lupevski that the alternatives, involving extending the house away from the Lyons deck would cost more, and may breach Council’s standards. In addition, Lupevski entertained doubts that any of the alternatives would meet Lyons’ concerns, but he did not canvass them with any architect (see T.163ff and 182), as he was of the view that it was his duty to consider and determine only the proposal put to Council by Mayer, in the form chosen by Mayer.

91. Lupevski testified that, having now seen Ball’s submission and affidavit, he (Lupevski) was clearly of the view that he had, in fact, considered everything that that submission raised (T.166), particularly as it went really no further than Staas. c.f . King v Great Lakes Shire Council & Anor (1986) 58 LGRA 366 at 371-2. Mr McEwen submitted that Ball’s submission was only a “ mechanical objection ” raising “ obvious points ” about relevant statutory controls which Lupevski says he took into account (T.239-241).

92. Lupevski also testified that, even though he had reservations about the accuracy of the view loss depictions in Exhibit L7 , he would still not have refused DC if he had satisfied himself that they were accurate (T.155.L.21-34).

93. Nonetheless, he acknowledged that Lyons’ objections were “ genuine ”, based on “ good grounds ”, and raised “ matters of considerable importance ” (T.172.L.24-36), upon which he would have reported to Council in detail, had the DA gone to the Council or a Council Committee for determination (T.173-4).

The Section 79C consideration

94. As Street CJ stated in Parramatta City Council v Hale (1982) 47 LGRA 319 (at 335):

...A normal prerequisite to taking a matter into consideration is that the … council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics they are required to take into consideration.

95. Moffit P also acknowledged in Hale (at 340-1):

... an indirect obligation, … upon the authority to acquaint itself with such material as will permit it to consider such s 90 (1) [now 79C] matters as are in fact material....

96. Moffitt P continued:

...if the authority refuses, declines, or omits to receive or consider, without apparent reason, representation expressions of opinion, particularly from experts, on relevant environmental matters, this may well provide some support for an inference that it really was not concerned to consider some relevant s 90 (1) matter or matters.

97. Mr Hale for the applicant submits that Lupevski concentrated on “ numerical compliance ” matters, and failed:

(i) to assess reasonably the submissions of Ball and Staas;
(ii) to make inquiries about Ball’s report, and/or to consider Ball’s views;
(iii) to make any inquiries about the accuracy of the photographs; and

(iv) to appreciate the significance of the decision.

98. Mr Hale submits that the failure to “ track down ” and take into consideration such relevant material as Ball’s submission, which was readily available, makes Lupevski’s exercise of his decision-making power so unreasonable that no reasonable person would have so exercised it: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170; Luu v Renevier (1989) 91 ALR 39 at 49 - 50; King v Great Lakes Shire Council (1986) 58 LGRA 366 at 371; Minister for Immigration and Ethnic Affairs v Teoh 183 CLR 273 at 289-290.

99. However, in Prasad, it was relevantly stated by Wilcox J (at 169-170):

An intermediate position is that the court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him.
...
A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person would come. Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew readily to be available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited....

100. Wilcox J’s “ intermediate ” approach found favour with the High Court in Teoh (at 290) and I think it is apposite to this case.

101. The consent issued by Council is not rendered invalid merely because, for example, internal administrative procedures were not followed; the error made must infect the decision challenged. Barmuncol Pty Ltd v Maroochy Shire Council (1983) 50 LGRA 309 at 313-314.

102. As stated in Pearson v Leichhardt Council (1997) 93 LGERA 206 by Lloyd J (at 211): “ an internal error within the administration of the respondent, unless of a fundamentally grave nature, cannot vitiate its consent to the application”.

103. Mr McEwen, for the Council, admits that Lupevski’s failure to seek out the Ball submission was indeed an error, but says that it was not “ fundamental ”, in the sense that it can infect, and so vitiate, the ultimate decision to grant consent. It was an oversight, and so a defect in the decision-making process, but not such as to invalidate the decision.

104. Lupevski visited the Lyons house on 2 August 1999, looked at the views from various rooms in the house, talked to Mrs Lyons, and took some photos. There was then sufficient material before him to allow him to make an informed decision. As Mr Robson, Counsel for Mayer, commented, Lupevski had his attention drawn to all the basic matters he was required to consider (T.258).

105. He took into account submissions, photographs, interviews, and on-site inspections; he also took into account the O’Dowd material and Staas’s opinion; he knew Lyons’ concerns, and that the Lyons house had heritage qualities, and possible constraints, but no relevant covenant protection.

106. Preference among competing submissions and attribution of weight were matters for him. He considered all the issues, and competing interests, and came to a decision not favoured by Lyons, whose concerns were clearly within his knowledge without seeing the Ball letter.

107. Furthermore, Lupevski has testified that the information he now knows to have been contained in Ball’s letter (such as clauses in the statutory instruments, view impact and alternative design) were separately and fully taken into account by him in his consideration and determination of the Mayer application.

108. He weighed the expert evidence, objections, advice and reports available to him, assessed the DA’s compliance with relevant instruments, and made his decision based on all relevant information. See Chisholm v Pittwater Council and Anor [2000] NSWLEC 143 (Talbot J).

109. Such assessments have been part of Lupevski’s everyday work for some years and the decision he reached was capable of being properly reached in these circumstances.

110. As there remained a reasonable proportion of views to satisfy the criteria of view sharing, I am satisfied that the decision was reasonably open to Lupevski, and not “ manifestly unreasonable ”. Also, there is no evidence of his having considered any matters irrelevant to the task he faced.

111. The decision needs only to be justifiable, not necessarily sound; Parramatta City Council v Pestell (1972) 128 CLR 305, at 323. The mere preference for a different result, and especially for one less controversial, does not entitle a Court to interfere with the exercise of the administrative discretion; Botany Municipal Council v The Minister for Transport (1996) 90 LGERA 81 at 96-97.

112. In summary, I am satisfied that Lupevski had delegated authority, and that, in exercising it, he gave appropriate consideration to the Mayer DA and the Lyons objection.

Conclusion

113. As the applicant has failed to prove that the authority to grant consent was not properly delegated, or that the delegation was not properly exercised, or that the decision to grant consent was manifestly unreasonable, or that irrelevant matters were taken into account, or that matters were not properly considered pursuant to s 79C of the EP&A Act, I dismiss the application.

114. The question of discretion, therefore, does not arise.

115. It would appear that, in these circumstances, the Applicant should be ordered to pay the Respondents’ costs, but as the question of costs was not argued before me, it will be formally reserved.

116. The orders of the Court will, therefore, be:

1. The Class 4 application is dismissed.
2. All questions of costs are reserved
3. All exhibits may be returned.