Manly Council v Hortis

Case •

[2001] NSWCA 81

•

5 April 2001

No judgment structure available for this case.

Reported Decision:

 (2001) 113 LGERA 321

New South Wales


Court of Appeal

CITATION: Manly Council v Hortis [2001] NSWCA 81 revised - 5/04/2001
FILE NUMBER(S): CA 40550/99
HEARING DATE(S): 12/03/01
JUDGMENT DATE:
5 April 2001

PARTIES :
Manly Council (Appellant)
Edison Hortis (First Respondent)
Gregory Mailman (Second Respondent)
JUDGMENT OF: Powell JA; Giles JA; Fitzgerald JA
LOWER COURT JURISDICTION : Land & Environment Court
LOWER COURT
FILE NUMBER(S) : 		40188/98
LOWER COURT
JUDICIAL OFFICER :		 Sheahan J
COUNSEL: M.L. Einfeld QC / A. J. Thompson (Appellant)
N.A. Hemmings QC (Respondent)
SOLICITORS: Pike Pike and Fenwick (Appellant)
Allen Allen & Hemsley (First Respondent)
Staunton Beattie (Second Respondent)
CATCHWORDS: Administrative law - Town Planning - Development consent - whether valid - inference that Council had failed to consider pre-condition in clause 17 of the Manly Local Environment Plan of 1998 - D
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
CASES CITED:
 Currey v Sutherland Shire Council (1998) 100 LGERA 365
Franklins Ltd v Penrith City Council (1999) (NSWCA 134, 13 May 1999)
Clifford v Wyong Shire Council (1996) 89 LGERA 240
DECISION: Appeal dismissed with costs

    THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL
    CA 40550/99
    LEC 40188/98

POWELL JA


GILES JA


FITZGERALD JA


    THURSDAY 5 APRIL 2001

    MANLY COUNCIL v HORTIS

    JUDGMENT


    1    THE COURT: On 2 July 1998, the appellant Manly Council issued a Development Consent and Building Approval, subject to conditions, to the second respondent, Mr Gregory Mailman. On 25 September 1998, a modification was approved by the Council. The Development Consent, Building Approval and modification (the “approval”) related to a property at 21 Beatty Street, Balgowlah, which is located in a Foreshore Scenic Protection Area within the “Residential 2” zone under the Manly Local Environment Plan of 1998 (the “LEP”). The first respondent, Mr Edison Hortis, and his wife own the adjoining property at 23 Beatty Street.

    2    The applications on which the Development Consent and Building Approval of 2 July 1998 were issued were lodged on 13 March 1998. Two earlier applications had been unsuccessful.

    3    The initial applications were lodged on 31 October 1995. After objection from Mr and Mrs Hortis and a report by the Council’s Director of Environmental Services to its Building and Environment Committee, those applications were refused on 17 May 1996. An appeal to the Land and Environment Court was dismissed by Assessor Roseth on 17 October 1996.

    4    Fresh applications were lodged on 24 December 1996. Mr and Mrs Hortis again objected. Those applications were refused on 20 February 1997. An appeal to the Land and Environment Court was again dismissed, on 19 May 1997 by Assessor Bull.

    5    After the applications on which the Development Consent and Building Application were issued were lodged on 13 March 1998, Mr and Mrs Hortis again objected by a letter from their solicitors dated 21 April 1998. On 27 June 1998, Mr and Mrs Hortis wrote to the Council in support of their objection. On 29 June 1998, the Council made its decision to grant the Development Consent and Building Approval. Prior to doing so, the councillors inspected the property to which the applications related and the Council was addressed on behalf of Mr and Mrs Hortis by their architect, Mr W.J. Bird.

    6    After the Council issued the Development Consent and Building Approval on 2 July 1998, an application for modification was lodged on 4 August 1998. On 20 August 1998, the architect for Mr and Mrs Hortis lodged an objection to the proposed modification. The Council decided to approve the modification on 21 September 1998 and gave notice of its decision on 25 September 1998.

    7    On 29 September 1998, Mr Hortis commenced Class 4 proceedings against the Council and Mr Mailman in the Land and Environment Court. On 2 July 1999, that Court declared that the Development Consent and Building Approval issued on 2 July 1998 and the modification issued on 25 September 1998 were void and of no effect.

    8    The Council has appealed from that judgment.

    9    Despite some confusion at the hearing in this Court with respect to the nature of the Land and Environment Court proceeding and the issues available for argument in this Court, we are satisfied that the Council’s full case was covered in its written and oral submissions. In the end, only a single, narrow issue needs to be determined.

    10    Clause 3(1) of the LEP sets out its “general aims and objectives”. Clause 3(2) provides:
            “(2) The particular aims of this plan are -
            (a) to divide land into the zones referred to in Clause 9 and to achieve in each of those zones the objectives specified for the land in Clause 10;
            (b) to enable the council to make development control plans regulating the carrying out of development in any zone -
            (i) by restricting the carrying out of that development to a specified area within the zones; or
            (ii) by fixing standards or specifying requirements for that development.”
    11    Part 2 of the LEP contains “General Restrictions on Development of Land”. Clause 9 divides the land to which the LEP applies into zones including “Zone No. 2 Residential Zone”. Clause 10 provides:
            “Zone objectives and development control table
            (1) The objectives of a zone are set out in the Table to this clause under the heading “Objectives of zone” appearing in the matter relating to the zone.
            (2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which -
            (a) development may be carried out without development consent’
            (b) development may be carried out only with development consent; and
            (c) development is prohibited
            are specified under the headings “Without development consent”, “Only with development consent” and “Prohibited”, respectively, appearing in the matter relating to the zone.
            (3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.”
    12    According to the Development Control Table for “Zone No. 2 - Residential Zone”, the objectives of that zone are:
            “ (a) to set aside land to be used for the purposes of housing and associated facilities;
            (b) to delineate, by means of development control in the supporting material, the nature and intended future of the residential areas within the Municipality;
            (c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Manly Council area;
            (d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment;
            (e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations;
            (f) to allow development for purposes other than housing within the zone only if it is compatible with the character and amenity of the locality;
            (g) to ensure full and efficient use of existing social and physical infrastructure and the future provisions of services and facilities to meet any increased demand; and
            (h) to encourage the devitalisation of residential areas by rehabilitation and suitable redevelopment.”

    13    The Development Control Table for “Zone No. 2 - Residential Zone” also provides that a dwelling house is a permissible development in a Foreshore Scenic Protection Area only with development consent.

    14    Clauses 17 “Visual and aesthetic protection of certain land” and 17A “Alteration of a building or work in a Foreshore Scenic Protection Area” of the LEP contain additional provisions in relation to land in a Foreshore Scenic Protection Area. Clause 17 provides:
            “The Council shall not grant consent to the carrying out of development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area.”

    15    The development control plan which regulates the carrying out of development in the Residential 2 zone (the “DCP”) is the “Manly Development Control Plan for the Residential Zone 1986 (Amendment 3).

    16    The “Introduction” to the DCP explains its purpose and includes the following passage:
            “This plan applies to all residential developments, alterations and additions on land zoned residential within the Municipality of Manly. This includes single dwelling houses, medium density developments and residential flat buildings.
            …
            Part 1 of this plan consists of design guidelines which illustrate the way to achieve good design using the D.C.P. Standards. The design guidelines initially examine the character of different localities within Manly Municipality and show ways in which new development may fit in to existing character and amenity.
            Part 2 of this plan consists of the actual D.C.P. Standards. There are a series of specific controls covering:
            Sunlights, Privacy, and Views
            Floor Space Ratio Density
            Height
            Setbacks
            Open Space
            Landscaping
            Parking
            Rehabilitation
            ….
            The D.C.P. is structured so that each criteria has a set of objectives and standards. It is intended that the standards are either maximum or minimum requirements and provide one method of achieving the objectives. In some instances the provisions of this plan may be varied on the basis of physical site constraints, or where the applicant can demonstrate that the objectives of the clause are being achieved without conforming to the standards.”
    17    A section of the DCP headed “Preliminary” includes both its “General Aims and Objectives” and the following “Specific Aims and Objectives”:
            “1. To provide development and performance standards to reduce the impact of new development on the privacy, sunlight and views of the adjoining residents.
            2. To encourage innovative and attractive design, with privacy for future residents within the development and access to sunlight by setting appropriate development and performance standards.
            3. To provide opportunities to allow for view sharing by both the existing and future residents of the Municipality.
            4. To introduce height and density controls to encourage the provision of housing which is compatible with the existing character of the neighbourhood, while still providing opportunities for development which will meet the State Government requirements for urban containment.
            5. To provide floor space ratio controls which will provide for flexibility of design within the parameters set by the other development standards of the development control plan.
            6. To orientate residential buildings in a way that does not simply locate them in a linear configuration down the block.
            7. To provide open space to each dwelling sufficient for recreational and landscaped open space.
            8. To encourage new development to enhance the existing streetscape.
            9. To provide for off-street parking relative to dwelling size and type.
            10. To provide incentives for the rehabilitation of buildings.
            11. To control height by relating it to the crown of the road and to control encroachments on local road widening in specific parts of the Municipality.
            12. To ensure protection of environmentally sensitive areas, including National Parks and certain open space areas.”
    18 The LEP is an “environmental planning instrument” as defined in ss4(1) of the Environmental Planning and Assessment Act 1979. The Council is a “consent authority” as defined. Section 4(1) includes other relevant definitions including “development” and “development application”. The broad statutory scheme as at the date when the Development Consent and Building Approval was granted can be seen from sections 76A(1), 79C(1) and (6)(a) and 80(1) and (2) of the Act. [1] Those sections provide:
            “76A(1) General
            If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
            (a) such a consent has been obtained and is in force, and
            (b) the development is carried out in accordance with the consent and the instrument.
            ….

            79C Evaluation

            (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 , and

            (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority , and

            (iii) any development control plan, and

            (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),that apply to the land to which the development application relates,

            (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.
            …

            (6) Definitions

            In this section:

            (a) reference to development extends to include a reference to the building , work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application , and
            …

            80 Determination

            (1) General

            A consent authority is to determine a development application by:

            (a) granting consent to the application, either unconditionally or subject to conditions, or
            (b) refusing consent to the application.

            (2) Despite subsection (1), the consent authority must refuse an application for development , being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development .”

    19    Mr Hortis challenged the approval on numerous grounds. All but one were rejected by the Land and Environment Court, which effectively found that the Council had properly considered and determined the relevant applications except in one respect. It is common ground that the Council did not have power to issue the approval unless it had first, as required by clause 10(3) of the LEP, formed “… the opinion that the carrying out of the development is consistent with the objectives of the” Residential 2 zone and, as required by clause 17 of the LEP, “satisfied” itself “that the development [would] not have a detrimental effect of the amenity of the Foreshore Scenic Protection Area.” The Land and Environment Court’s decision in favour of Mr Hortis was based upon a single factual inference drawn by the Court, namely “.. that the Council failed to address its mind to clause 10 and clause 17 of the LEP..”.

    20    The Council did not dispute that its appeal must fail if that inference was correct. Its argument in this Court is that, in drawing that inference, the Land and Environment Court erred. It does not seem to be contested that, if error is established and the judgment is set aside, it would be necessary to remit the matter to the Land and Environment Court to reconsider whether or not the Council had formed the “opinion” required by clause 10(3) and “satisfied” itself as required by clause 17 of the LEP.

    21    There is no direct evidence that the Council considered clause 10(3) or clause 17 of the LEP. In particular, neither clause is referred to in the minutes of the Council’s relevant meetings or the material which was before the Council at that meeting, and no witness was called to say that either clause was considered. In the manner later described, the Land and Environment Court held that decisions of this Court, particularly Currey v Sutherland Shire Council [2] and Franklins Ltd v Penrith City Council , [3] required an inference in those circumstances that the Council did not consider the requirements of clauses 10(3) and 17 in the absence of other evidence that it did so and that there was “no real evidence” that the Council considered those requirements.

    22    Neither Currey [4] nor Franklins (1999) [5] establishes any new principle in relation to inferential fact-finding by the Land and Environment Court. In each of those cases, this Court held that the available evidence founded an inference that a particular “precondition to consent” had not been met by the relevant Council.

    23    Currey [6] was concerned with clause 19 of the Sutherland Local Environmental Plan 1993, “Foreshore Building Lines”. Clause 19(1) set out the objectives of the foreshore building lines, which included the preservation and enhancement of the natural features and vegetation of the area where the land meets the water and restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures. Subject to a proviso contained in clause 19(6), clause 19(5) required the Council to refuse consent to a development on land having a foreshore building line unless it was satisfied that certain buildings or works (if any) would be removed.

    24    Stein JA, with whom Mason P and Handley JA agreed, said that the inference to be drawn “comes down essentially to the report and its recommendations (and the appendices) which were before the Council and upon which it based its decision.” [7] Later, [8] his Honour said:
            “Was it enough that the officer’s report contained a reference to cl 19 and the foreshore building line? In my opinion, it was not. Without some elucidation of the relevance of cl 19 to the application and the need to consider the existing two-storey boatshed in the context of cl 19(5) and (6), the bare reference to cl 19 was capable of misleading the council in its required task. This is principally because the report failed to refer to the prohibition in cl 19(5).
            Indeed, … cl 19 was never identified as an issue for the council. Far from it, any councillor coming to the report (read with the appendices) would be likely to assume that there was no issue arising under cl 19 necessary to be addressed. Councillors would most likely be unaware of the prohibition contained therein or of the need to consider the possible exception under cl 19(6). Both cl 19(5) and (6) require the council to be satisfied . The rolled-up conclusion to the report would also be likely to lead members of the council to believe that the application complied with the LEP. There is, in fact, nothing in the report or its appendices to alert the council to the need to address cl 19(5) and (6) (in order to overcome the prohibition in cl 19(5) before proceeding to assess the merits of the application.
            In my view, the inference should be drawn that the council failed to address the precondition in cl 19(5). Accordingly, the prohibition operated and the development was prohibited under s 91(2) of the Act. The council simply adopted the officer’s recommendation which did not frame the question necessary to be addressed.”
    25    Franklins [9] concerned clause 32(2) of the Penrith Local Environment Plan No. 231 (“LEP 231”), which required the Council to refuse a development consent for a wholesale and retail warehouse unless it was “satisfied that not less than 60 per cent of the goods sold from the land would be resold by retail after being removed from the land.” Clause 32 had been redrafted by the Parliamentary Counsel after it had been submitted by the Council to the Department of Planning. Although the Council’s draft contained a definition of “warehouse/retailing” which required that not less than 60 per cent of sales to certain persons be sold as retail, it did not require the Council to be satisfied prior to granting consent that the applicant would comply with that requirement. In the words of Stein JA, with whom Powell and Giles JJA agreed:
            “19. …. [Clause 32(2)] was not a pre-condition which must be satisfied before Council could proceed to consider the application. If consent was granted, the applicant would have to operate in accordance with the definition of ‘warehouse/retailing’ or be in breach of the consent. Indeed, it would be normal to include a condition to that effect. It may be noted that no relevant condition was included in the subject development consent.
            20. By contrast, whether or not … the 60% requirement in cl 32(2) of the LEP as made did not continue to apply to a development for ‘wholesale and retail warehouse’ because it was not a defining characteristic of that type of use, the Council had to form the requisite satisfaction in relation to the 60% requirement at the time of the development application. It could not do so afterwards.”
    26    Later, his Honour continued:


            “29 Should the inference be drawn? Moffitt P cautioned in Hale about drawing the inference of failure to consider a relevant fact by a collegiate body without anxious consideration. However, he added that if it was available to be drawn, the court should not hesitate. The inference may be more readily drawn in the absence of any evidence from Council officers with knowledge of the facts. In addition, no member of the Council was called, nor any of the authors of the reports before the Council. One might have thought that if the requirement of satisfaction had been reached by Council, but not recorded in writing, oral evidence would have been called. One cannot lightly cast aside the remarks of Kitto J in Jones v Dunkel (1959) 101 CLR 298 at 308 and many succeeding authorities, see for example, Burchett J in Alec Finlayson Pty. Limited v Armidale City Council (1994) 84 LGERA 225 at 243.

            30 Accepting the documentary evidence before the court as the whole of the relevant material before the Council at the time it granted consent, one cannot escape the fact that none of it makes reference to cl 32(2) and its application or the 60% requirement. In the absence of any other evidence, this provides the foundation for a conclusion that the Council failed to consider cl 32(2) of the LEP and failed to form the requisite opinion of satisfaction as to the 60% requirement. In my opinion, the inference should have been drawn.”

    27    The following paragraphs in Stein JA’s judgment deal with matters upon which reliance was placed in that case to demonstrate that the Penrith City Council had considered LEP 231 and his Honour’s reasons for his conclusion that that material did not displace the inference that the clause had not been considered by the Council.

    28    The pre-conditions to consent considered in Currey [10] and Frankins [11] were significantly different from clause 10(3) of the LEP, which required the Council to form “the opinion that the carrying out of the development [was] consistent with the objectives of the [Residential] zone” before issuing the approval.

    29    Clause 10 of the LEP, including clause 10(3), is a provision of general application to all land to which the LEP applies, irrespective of its zoning. The objectives specified for the various zones, including those specified for the Residential 2 zone, are general provisions imposing general standards for appropriate development in the respective zones. The objectives for each zone provide the essential context, together with any applicable DCP, for the Council’s consideration of every development application relating to land in that zone. More particularly, the objectives of the Residential 2 zone and the DCP provide the essential context for the Council’s consideration of every development application relating to land in the Residential 2 zone.

    30    However, clause 17 of the LEP is relevantly similar to the pre-conditions considered in Currey [12] and Franklins [13] . The Council was undoubtedly aware that the material property is in a Foreshore Scenic Protection Area. That was the reason why development consent was necessary according to the Development Control Table for “Zone No.2 - Residential Zone”. The critical question is whether the Council was also aware that, by virtue of clause 17 of the LEP, it could not grant consent to the development even if it met the general objectives of the Residential 2 zone and the requirements of the DCP “unless it [was] satisfied that the development [would] not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area.” In other words, was the Council aware that any detrimental effect of the development on the Foreshore Scenic Protection Area was not merely a factor for it to consider when deciding whether or not to grant the applications but an absolute bar to a decision to issue the approval?

    31    Since clause 10(3) and clause 17 of the LEP subjected the Council’s power to issue the approval to cumulative pre-conditions, this appeal must be dismissed unless the Council establishes not only that the Land and Environment Court erred in inferring that the Council “failed to address its mind to clause 10” but that it also erred in inferring that the Council “failed to address its mind to ... clause 17 of the LEP”. It is unnecessary to consider whether the Land and Environment Court erred in inferring that the Council had not considered clause 10(3) unless it is established that that Court erred in inferring that the Council had not considered clause 17.

    32    The Council has not persuaded the Court of error in the approach or conclusion of the Land and Environment Court in so far as it concerned clause 17 of the LEP. On the contrary, we consider that the Land and Environment Court’s approach to the question whether the Council had considered clause 17 of the LEP was consistent with this Court’s approach in Currey [14] and Franklins [15] and its conclusion was correct. Having regard to the nature of the pre-condition to consent imposed by clause 17, the absence of any reference to that issue in the Council’s minutes or that material before it when it made its decision and the omission to call evidence that clause 17 was considered give rise to the inference that the Council did not consider the clause unless there is other evidence which supports the opposite conclusion.

    33    The Council’s arguments for the Land and Environment Court’s inference that the Council did not satisfy itself that the development would not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area as required by clause 17 being flawed were in substance three.

    34    First, it was argued that the Land and Environment Court had misconstrued and misapplied the effect of the decisions in Currey [16] and Franklins [17] . It is necessary to follow through the reasoning of the Court.

    35    The Court recorded Mr Hortis’ case that the Council did not give proper consideration to clause 10(3) and clause 17, a case involving that the requirements of the clauses were “mandatory statutory prerequisites” requiring an opinion and satisfaction “ before addressing the question of whether or not to grant consent on the merits”. It considered in some detail Currey [18] , Clifford v Wyong Shire Council [19] and Franklin s [20] . In relation to Currey [21] it said that the facts were very similar to the facts in the instant case, and at the beginning of the consideration of that case said -
            “The Court of Appeal held that consideration of cl 19(5) and its exception in cl 19(6) should occur before the weighing of the merit considerations under s 90. In the absence of any other evidence, the inference should be drawn that the Council did not address its mind to cl 19(5) and cl 19(6) and, accordingly, the prohibition operated and the development was prohibited under s 91(2) of the EP&A Act. The development application for the subdivision was declared invalid. The Court (with Mason P and Handley JA agreeing with the judgment delivered by Stein JA), applied the decisions in North Sydney Council v Ligon 302 Pty Limited (1995) 185 CLR 470, Parramatta City Council v Hale (1982) 47 LGRA 319, Sommerville v Dalby (1990) 69 LGRA 422m and Clifford & Anor v Wyong Shire Council (1996) 89 LGERA 240).”
    36    The Court then set out (again) cl 10 and cl 17, and said -
            “It is clear from reading these two clauses that they both contain pre-conditions that the council must form an opinion (cl 10) and satisfy itself (cl 17) in order for the development to be permissible (that is, not prohibited). This must occur before consideration of matters under s 90 of the EP&A Act. Thus the relevant question is whether, in the absence of any other evidence, the Court should draw the inference that the Council failed to address its mind to cl 10 and cl 17 of the LEP.”

    37    It was then said that in order to answer the question “a thorough examination of the evidence is required”, and in point form the evidence on which Mr Hortis, the Council and Mr Mailman respectively relied was set out.

    38    The Court then said -
            “ Did Council consider the pre-conditions ?
            Both respondents have relied on the Court presuming regularity in the Council’s determination.
            Stein JA in Franklins addressed this point specifically (at par 28):
                ‘Before coming to the often difficult issue of whether the inference of failure to consider or form the requisite opinion should be drawn, it is convenient to deal with the question of the relevance of the presumption of regularity. As mentioned earlier, Bignold J thought it appropriate to apply the presumption and not to draw the inference urged by the appellant. In my opinion, the presumption of regularity has no place in a case such as this. What is here involved is a question of power. If the pre-condition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an “essential condition” or preliminary to the exercise of the power … Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. The presumption of regularity has no part to play in this consideration.’
            The submission of the respondents also concentrated on the general or local knowledge of the Councillors. This included submissions as to the lack of complexity of the planning instruments. However, this was deemed to be irrelevant by Stein JA. He states at par 26 of his judgment in Franklins : ‘Here local knowledge is irrelevant. What is needed is actual knowledge of the pre-condition of satisfaction to be held by Council.’
            Mr Thompson’s submissions relied on the evidence from McCarthy’s report. Whilst I accept this evidence, it does not go so far as to show that the Council satisfied itself that the pre-conditions contained in cl 10 and cl 17 had been met.
            Thus I conclude that there is no real evidence that the Council did, in determining to grant its approval, satisfy itself of the pre-conditions contained in cl 10 and cl 17 of the LEP. Neither clause was identified by McCarthy’s report, as an issue requiring the Council’s attention, and there is no evidence (from the minutes of the Council’s meeting of 29 June 1998) that either pre-condition was satisfied, as required by the planning instrument.
            Conclusion on Challenge 8
            Following Franklins and Currey , the court must draw from the evidence in this case the inference that the council failed to address its mind to cl 10 and cl 17 of the LEP, and in doing so committed an error of law. The consent granted is, therefore, invalid, in accordance with s 91(2) of the EP&A Act.”

    39    The argument was put in different ways at different times, but in essence was that the Land and Environment Court had wrongly taken Curre y [22] and Franklins [23] . to require, as a conclusion of law or inevitable fact, that in the absence of evidence that the Council considered satisfaction of the preconditions in clauses 10 and 17, the inference that it did not must be drawn. The error was compounded, it was said, by rejection of the Council’s reliance on general or local knowledge when the planning instruments were not complex, or at least not of the complexity of those in Currey [24] and Franklins [25] .

    40    We do not think that this argument has substance. The Court well appreciated that it was making a finding of fact on the whole of the evidence, but properly took from Currey [26] and Franklins [27] that satisfaction of a precondition to the weighing of merit considerations was less readily found, and an inference of failure to consider that matter was readily found, in the absence of evidence that the precondition was addressed by the Council. General or local knowledge was insufficient in such a situation. In the Court’s conclusion, attacked by the Council on the ground that Currey [28] and Franklins [29] did not require that the inference must be drawn that the Council failed to address its mind to clauses 10 and 17, the Court was making a finding of fact on the evidence, not stating a conclusion of law or inevitable fact.

    41    The second argument was that there was no evidence upon which the Land and Environment Court could legitimately have inferred that the Council failed to consider clause 17 of the LEP. That submission must be rejected. In the absence of any other evidence, the lack of any reference to clause 17 in the Council’s minutes or the material before the Council at is meeting would provide “the foundation for a conclusion that the Council failed to consider cl[17] of the LEP and failed to form the requisite opinion of satisfaction….”. [30]

    42    The third argument was also put in different ways at different times, but in substance amounted to a submission that the Land and Environment Court failed to take relevant matters, including material evidence, into account and made erroneous assumptions in drawing the inference that the Council had failed to consider whether it was satisfied that the development would not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. It overlapped the first argument.

    43    This argument took as its starting-point what was said to be the lack of complexity in clause 17 of the LEP and the councillors’ “expertise, local knowledge and knowledge of the issues acquired in the lead up to the final determination”, i.e., in the course of deciding the two earlier applications in 1995 and 1996. It was submitted that the material available to the Council included not only the contents of “its files, reports and the like” but also the decisions of Assessors Roseth and Bull in the Land and Environment Court. Reliance was also placed upon the issues raised in the objections and letters forwarded to the Council by Mr Hortis and his solicitors.

    44    The matters enumerated in the argument, and comments upon them, were as follows. The matters were enumerated in relation to both clause 10(3) and clause 17; it is appropriate to go to them all, although as will be seen some could be relevant only to clause 10(3).

    45    First, it was said that the Land and Environment Court had found that the Council was aware of the provisions of the LEP and DCP. This was not accurate. It had found that the Council was aware of particular clauses of the DCP, but made no specific finding of awareness of the provisions of the LEP. No doubt general awareness of the LEP could be assumed, but it is a different thing to assume knowledge of clause 17 and its particular effect, namely, that there was no power to grant consent unless the Council was satisfied that the development would not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area.

    46    Secondly, it was said that the decisions of the Assessors were within the Council’s collegiate knowledge and referred specifically to “the clause 17 foreshore protection area provisions”. This also was not accurate. The reference to the Foreshore Scenic Protection Area was in the decision of Assessor Bull, and it was in a passage in which he concluded that the planning standards for floor space ratio and landscaped area did not relate solely to the relationship to the neighbouring dwelling but went to -
            “ … the location of the site within the Foreshore Scenic Protection Area and Subzone 7 under the DCP where greater emphasis is now placed in the planning framework on landscape and building quantity and quality, and protection of the environment through a limitation on overall building mass”.

        This did not call up clause 17 for consideration.

    47    Thirdly, it was said that the Land and Environment Court had found that the Council had considered “the objectives of” the LEP when determining to grant development consent. It did, but that did not support regard to clause 17.

    48    Fourthly, it was said that the Council had “twice previously considered giving consideration to [sic] the LEP considerations when determining the earlier applications, such that those matters were within the Collegiate mind of the Council”. This was based on recommendations to the Council that the earlier applications be refused inter alia because “the proposal is considered contrary to the aims and objectives of Manly Local Environmental Plan 1988 as amended”. Again, it did not support regard to clause 17.

    49    Fifthly, it was said that on the day before the relevant meeting that Mr Hortis had specifically drawn to the attention of the councillors “the content of the decision of the assessors referring to both the clause 10 and clause 17 requirements”. In relation to clause 17, this added nothing to the second matter.

    50    Sixthly, it was said that “the content of the relevant clauses was specifically drawn to councillor’s attention by the objector’s solicitor’s letter of 21 April 1998 which was delivered to councillors the day before the decision was made”. This again was inaccurate. The letter relevantly said that the earlier applications had been rejected “because of the contravention of the provision [sic] of the DCP and LEP”, citing part of the passage from the decision of Assessor Bull earlier set out. This did not draw attention to the content of clause 10 or clause 17; it did not support regard to clause 17.

    51    Seventhly, it was said that the letter of 21 April 1988 and the location of the property within the Foreshore Scenic Protection Area were identified as matters of significance for councillors in the town planner’s report before the Council. This added nothing to the sixth matter.

    52    Eighthly, it was said that the councillors had visited the property. They had, but that did not support regard to clause 17.

    53    There might be considerable force in this argument in relation to the Land and Environment Court’s inference that the Council did not consider clause 10(3) of the LEP but that is not the issue of immediate concern. Nor is it significant for present purposes that the Council undoubtedly knew that the land to which the applications relate was in a Foreshore Scenic Protection Area so that development consent was required. The question is whether the material relied on by the Council provides support for an inference that it was aware of the specific issue which was of critical importance; namely that it had no power to grant consent unless it was satisfied that the development would not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area.

    54    As appears from what we have earlier said, an argument to similar effect was considered in detail and rejected by the Court in Franklins . [31] Both Currey [32] and Franklins [33] demonstrate that an inference that a consent authority considered a specific precondition to its power to grant a development consent will not normally be derived from material which demonstrates no more than that the consent authority was aware of the issues which were relevant to its decision whether or not to grant consent if it had power to do so. In the present case, it is unnecessary to do more than emphasise a point made by Stein JA in Currey . [34] In the absence of express reference to the effect of clause 17 of the LEP in the extensive information available to the Council, that material was unlikely to assist it. The extent of the available information combined with the absence of any reference to clause 17 was more likely to cause the Council to overlook that clause 17 prohibited the Council from granting consent to the development unless it was satisfied that it would not have a detrimental effect on the Foreshore Scenic Protection Area.

    55    The Council’s challenge to the Land and Environment Court’s inference that the Council did not consider clause 17 of the LEP should be rejected.

    56    Accordingly, its appeal should be dismissed, with costs.
    **********

    End Notes
    1. A generally similar scheme, with differently numbered sections, was in force prior to 1 July 1998.
    2. (1998) 100 LGERA 365.
    3. (1999) (NSWCA 134, 13 May 1999).
    4. (1998) 100 LGERA 365.
    5. (NSWCA 134, 13 May 1999).
    6. (1998) 100 LGERA 365.
    7. 100 LGERA 365, 373.
    8. 100 LGERA 365, 375.
    9. (1999) NSWCA 134.
    10. 100 LGERA 365
    11. (1999) NSWCA 134.
    12. 100 LGERA 365.
    13. (1999) NSWCA 134.
    14. 100 LGERA 365.
    15. (1999) NSWCA 134.
    16. (1998) 100 LGERA 365.
    17. (1999) (NSWCA 134, 13 May 1999).
    18. (1998) 100 LGERA 365.
    19. (1996) 89 LGERA 240.
    20. (1999) (NSWCA 134, 13 May 1999).
    21. (1998) 100 LGERA 365.
    22. (1998) 100 LGERA 365.
    23. (1999) (NSWCA 134, 13 May 1999).
    24. (1998) 100 LGERA 365
    25. (1999) (NSWCA 134, 13 May 1999).
    26. (1998) 100 LGERA 365.
    27. (1999) (NSWCA 134, 13 May 1999).
    28. (1998) 100 LGERA 365.
    29. (1999) (NSWCA 134, 13 May 1999).
    30. Franklins (1999) NSWCA 134, para. 30.
    31. (1999) NSWCA 134.
    32. 100 LGERA 365.
    33. (1999) NSWCA 134, paras. 31 - 35.
    34. 100 LGERA 365, 375.

    Revision Reasons
    Hyperlinked End Notes added - 4/05/2007
Actions
Download as PDF Download as Word Document
Cases Cited

3

Statutory Material Cited

1

Luxton v Vines [1952] HCA 19
Luxton v Vines [1952] HCA 19
Currey v Sutherland Shire Council [2003] NSWCA 300